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How Section 43(4) of the Family Violence Act 2016 (ACT) Quietly Rewrites the Rules of Accountability

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The Get-Out-of-Complicity-Free Card: How Section 43(4) of the Family Violence Act 2016 (ACT) Quietly Rewrites the Rules of Accountability


A closer look at a small subsection with an outsized capacity for mischief.


Buried in Division 3.7 of the Family Violence Act 2016 (ACT), between the offence provision everyone talks about and the firearms provision nobody wants to talk about, sits section 43(4) — four lines of drafting that most people will never read, and almost nobody outside family law circles has heard of. It deserves more attention than it gets, because it does something quite unusual: it builds a one-way door into the criminal law.



What the section actually says


Section 43 creates the core offence of the Act. Under section 43(2), a respondent who contravenes a family violence order — including any condition of it — commits an offence carrying a maximum penalty of 500 penalty units, five years' imprisonment, or both. That's a serious criminal exposure, and appropriately so; contravention offences exist to make protection orders mean something.


Then comes subsection (4). It provides that a protected person does not commit an offence under section 45 of the Criminal Code — the ordinary complicity provision, which criminalises aiding, abetting, counselling, procuring, or otherwise being knowingly concerned in someone else's offence — where the "someone else's offence" is the respondent's contravention of the order.


In plain terms: if a protected person invites, encourages, or actively participates in conduct that breaches the order, the respondent can be prosecuted for the contravention — but the protected person cannot be prosecuted as an accessory to it, no matter how central their role in bringing the contact about.


The stated purpose, and it's a fair one


To be clear about the drafters' intent, because this matters for an even-handed critique: subsection (4) was not designed as a weapon. Family violence orders are often broad, and protected people sometimes make innocuous, well-meaning, or simply human contact with a respondent — a text about a child's medical appointment, a doorstep conversation, a reply to a message the respondent sent first. Without subsection (4), a protected person could theoretically be prosecuted as an accomplice every time a respondent breaches the order in a way the protected person facilitated, however innocently. Nobody wants a statute that punishes a protected person for taking a phone call. That is a legitimate problem, and subsection (4) is a legitimate, defensible answer to it.


The trouble is in what the drafting doesn't do.


The asymmetry the drafting creates


Section 43(2) is not a fault-sensitive offence in the way people assume. It does not ask who initiated the contact, who wanted it, or who benefited from it. It asks only whether the respondent's conduct contravened the order. Intent, context, and provocation are sentencing factors at best — they are not elements the prosecution has to prove, and they are not a statutory defence.


Pair that with subsection (4) and you get a structural imbalance rather than a narrow protection:


A protected person who initiates contact, encourages a breach, or actively engineers a situation designed to produce one faces no criminal exposure at all under section 43, however knowing or deliberate their conduct.

A respondent who responds to that contact — even where the protected person instigated it — faces the full weight of a strict contravention offence, with up to five years' imprisonment on the table.



The protection Parliament intended for inadvertent, well-meaning contact contains no mechanism to distinguish it from deliberate, engineered contact. The subsection doesn't say "a protected person does not commit an offence where the contact was inadvertent or innocent." It simply removes complicity liability, full stop, regardless of motive. That is the gap.


How the gap gets used


None of what follows requires imagination; it requires only a passing familiarity with how contested separations sometimes play out, and how any strict-liability regime with an asymmetric carve-out will attract opportunistic use by a minority of people on either side of any dispute.


The pattern is straightforward: a protected person makes contact, invites contact, or manufactures a situation in which contact is very likely to occur — then reports the resulting breach. The respondent, who has no equivalent immunity and no "I was invited" defence written into the statute, is the only party exposed to prosecution. The protected person, having actively procured the very conduct that triggers the charge, walks away with express statutory cover.


This is not a defect that requires a bad protected person to exist for the law to be badly drafted — most people, on both sides of these proceedings, don't behave this way. But a law that offers a substantial, low-risk lever to the minority who do is a badly calibrated law regardless of how the majority behave. Good drafting should not depend on universal good faith to produce fair outcomes.


There is also a second-order effect worth noting: because the respondent bears the entire criminal risk of any contact, the incentive structure pushes respondents toward complete non-engagement even in situations — co-parenting logistics, shared property, health emergencies — where some contact is inevitable and beneficial to everyone involved, including any children. A statute that was meant to protect people from inadvertent breach ends up manufacturing more opportunities for it, by making every response to contact a gamble.


Why this matters beyond the individual case


It would be easy to dismiss this as a niche drafting quirk that only litigants and their lawyers will ever encounter. It isn't. Every asymmetric liability provision in a strict-liability criminal scheme sends a signal about whose account the system defaults to believing, and whose exposure the system is willing to leave uncapped. A jurisdiction that wants to be taken seriously on family violence reform has to be equally serious about closing loopholes that let the framework itself be turned into an instrument of the very control dynamics it exists to prevent. Coercive control, after all, is not the exclusive province of one party to a relationship, and a statute that cannot conceive of that is a statute working from an incomplete model of the problem it is trying to solve.


The ACT government has had ample opportunity, across successive amendments to this Act (most recently in 2023 and 2024), to add a qualifying word or two to subsection (4) — "inadvertently," "in the circumstances," "reasonably" — that would preserve the genuine protection while closing the door to its exploitation. That it hasn't is, at best, an oversight the government should be embarrassed to have sitting in its own statute book this long, and at worst, a sign that nobody with the power to fix it has been made to look closely enough to notice. Either way, it's a poor look for a jurisdiction that markets itself as a national leader on family violence law reform.


A modest, fixable proposal


The fix here is not radical. Other Australian jurisdictions have grappled with similar drafting problems by conditioning immunity or defences on good faith, reasonableness, or the absence of deliberate procurement. The ACT could:



Qualify subsection (4) so the immunity applies only where the protected person's involvement was not a deliberate attempt to procure a contravention; or

Introduce a statutory defence to section 43(2) where the respondent's conduct was substantially induced by the protected person, leaving it to the court — which already hears these matters — to assess credibility and weight; or

At minimum, require sentencing courts to treat inducement by the protected person as an express mitigating factor, rather than leaving it to the general sentencing discretion under the Crimes (Sentencing) Act 2005.



None of these would weaken protection for genuine victims of family violence, which remains this Act's core and correct purpose. What they would do is stop a well-intentioned four-line subsection from doubling as a tool for the very abuse the Act exists to prevent.


The other side of the ledger


In fairness, defenders of the current drafting would make a real argument in response, and it deserves airtime rather than a footnote. Adding a "reasonableness" or "good faith" qualifier to subsection (4) reopens exactly the door the subsection was built to close: a protected person who made entirely innocent contact could suddenly find themselves relitigating their own motives to avoid an accessorial charge, which is a heavy and chilling burden to place on someone the Act is trying to protect. There is also a well-founded concern, raised consistently by family violence advocates, that "she invited the contact" is one of the most common narratives used by perpetrators to minimise or excuse breaches, and a statutory defence built around inducement risks becoming a routine line of attack in exactly the cases where the protected person's safety is most at risk. On that view, the current asymmetry is not an oversight so much as a considered trade-off — accepting some risk of misuse at the margins in exchange for not reintroducing a chilling effect on the much larger number of genuine victims the Act is meant to serve.


Reasonable people, including reasonable advocates for victims of family violence, can disagree about where that line should sit. What shouldn't be in dispute is that the trade-off exists, that it currently sits entirely on the respondent's side of the ledger, and that a government genuinely committed to getting family violence law right owes the public a clearer account of why it has chosen to leave it there.



ACT Family Violence Act 2016 s43(4) AustLII: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/fva2016158/s43.html (protected person not guilty of complicity/aiding in breach).


Equivalents (breach/complicity provisions protecting applicants):



This article discusses the drafting of section 43(4) of the Family Violence Act 2016 (ACT) as a matter of legislative policy. It is not legal advice. Anyone involved in family violence order proceedings, whether as an applicant or a respondent, should seek advice from a lawyer or, if unrepresented, contact Legal Aid ACT or the ACT Law Society's referral service.

 
 
 

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