Domestic Violence (Enhancing Safety) Bill

datePosted on 06:00, January 10th, 2009 by Anita

As part of fulfilling their election promises the government has put forward changes to the domestic violence legislation. The proposal will see Police able to issue an order banning the perpetrator of domestic violence from the home for five days to protect the victim and any children, those orders will not be subject to any kind of judicial review or oversight.

The first part is a reasonable approach to the issue, the second is clearly wrongheaded – why should these orders be without judicial review or oversight? Where are the checks and balances?

The problem the Police face is what to do in the middle of the night in the face of a case of the less serious end of the spectrum of domestic violence (in the more serious cases they simply arrest the abuser). At the moment in cases which don’t quite warrant that they have three options: leave the abuser at large and hope nothing worse happens, tell the victim to go to a refuge or a friend’s place, or lock the abuser up anyhow. The ability to issue an order banning the abuser from the house would be a sensible tool to add to this.

Idiot/Savant has called for the Bill to be rejected but that doesn’t improve the current situation which probably sees both unnecessary imprisonment and victims being driven out of their homes. Deborah suggests reducing the period to 72 hours, but I’m not sure it’s the period that’s the problem as long as there’s an opportunity to review inappropriate exclusions.

I think that the Police should have the ability to ban the abuser immediately from the house for five days. The first day that courts are open the Police should then go before the court and have the order reconfirmed with everyone involved able to be heard. The court can then either confirm the order, reject the order or, potentially, issue a normal protection order. The order itself should be subject to the normal review process.

That way victims of domestic violence are protected, abusers are not unnecessarily arrested, and the standard judicial processes and reviews are available to all involved.

What do you all think? We have until late February to get submissions in, so we have time to figure out a solution which would really work.

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11 Responses to “Domestic Violence (Enhancing Safety) Bill”

  1. Lee - MWT on January 10th, 2009 at 06:36

    A revolving door-process for abusers?
    “The first day that courts are open the Police should then go before the court and have the order reconfirmed with everyone involved able to be heard. The court can then either confirm the order, reject the order or, potentially, issue a normal protection order. The order itself should be subject to the normal review process.” Now, I may be displaying my ignorance of the law, but, here goes…
    Two things come to my mind. First, Why should it be the onus of the police to have the order reconfirmed, shouldn’t the person who has been barred be the one driving any challenge to his/her suitability to regain access? By the same token, why should it be on ‘the first day the courts are open’ as if the world revolves around the particular needs of an individual who has been barred for exhibiting enough violence or intention to commit it that the police have seen fit to exclude them? Again, the offender should be driving the process to have their situation reviewed rather than the courts, police and those offended against, having to set their agendas according to some arbitrarily imposed deadline. And if it takes a little longer, perhaps it will deter one from a second offence.
    I don’t like the idea of an abuser saying ‘Sure, I’ll go now, but I’ll see you Monday afternoon, Bitch…” because he knows there is a likelihood that he will be empowered by the courts to return home, simply by doing nothing.

  2. Lew on January 10th, 2009 at 09:17

    Lee: ‘Sure, I’ll go now, but I’ll see you Monday afternoon, Bitch…”

    Do you think the courts would allow him to return home if he exhibited this sort of behaviour?

    L

  3. Anita on January 10th, 2009 at 13:01

    Lee,

    Two things come to my mind. First, Why should it be the onus of the police to have the order reconfirmed, shouldn’t the person who has been barred be the one driving any challenge to his/her suitability to regain access? By the same token, why should it be on ‘the first day the courts are open’ as if the world revolves around the particular needs of an individual who has been barred for exhibiting enough violence or intention to commit it that the police have seen fit to exclude them?

    Because the Police’s job is to enforce the law, not to judge events or hand down sentences – that is the role of the judiciary.

    By letting the Police take immediate action they can enforce the law and we can keep people safe, but their judgement and the penalty they impose (it’s hard to argue being banned from ones home is not a penalty) should go through the judicial process.

    I’m not suggesting a huge complex process. Where it’s uncontested (and I suspect many will be) a judge checking and reconfirming it would be a 5 min job.

  4. Lee - MWT on January 10th, 2009 at 22:44

    Lew – it need not be shouted from the rooftops. Anita, fair enough – but i can’t see how what I asked infers tht the Police are being asked to judge events any more than your option. The options they are presented with are decided by the judicial process either way, they simply enforce them. As for ‘it’s hard to argue being banned from ones home is not a penalty’ – I’d suggest that ‘home’ is a misnomer: perhaps a better definition may be: “a structure within which one and one’s children may be beaten by family with the complicity of inadequate laws to protect the most vulnerable.”?
    having said that, despite my picky attitude about some of what you have said, on reflection, I have reread your original point; “The first day that courts are open the Police should then go before the court and have the order reconfirmed with everyone involved able to be heard. The court can then either confirm the order, reject the order or, potentially, issue a normal protection order. The order itself should be subject to the normal review process.” and think you are absolutely correct.
    Alcohol giveth and alcohol taketh away, I guess…

  5. Deborah on January 12th, 2009 at 21:38

    Ah! Yes… good. I like the idea of the order being reconfirmed by the courts as soon as possible. It’s another way of getting the balance right between the woman’s right to be free from violence, and the man’s right to due process, but I think a more effective one than the way I originally proposed. I would be very happy to support a submission to this effect.

  6. Eddie Clark on January 13th, 2009 at 09:03

    The other thing I think needs to be addressed is the ability to have this expunged from the record after the fact. Say due to genuine police error or, less charitably, exaggerated evidence given by police, the order is upheld, lasts for 5 days, then lapses. Accused abuser goes home, and there is never any violence. Remember, these orders can be given even when the person who is allegedly being abused doesn’t want one.

    In these circumstances, there would be a black mark saying ‘probably abuser’ against the person’s name for an indefinite period of time. And you couldn’t appeal this after it has lapsed – it would be a moot legal issue and the courts wouldn’t see it. So I think there needs to be either
    (a) a method of challenging the order after it has expired or;
    (b) a provision in the Act stating that, in the absence of any further orders of this kind, or protection orders, the police delete their records of these orders after, say, 2 years.

    Thoughts?

  7. Anita on January 13th, 2009 at 09:43

    Eddie Clark,

    The other thing I think needs to be addressed is the ability to have this expunged from the record after the fact.

    Yes they should.

    Making judicial reviews possible means they could be reviewed out of existence (so expunged), but maybe there also needs to be a period of time after which they stop being visible given the low evidential threshold and the fact a formal protection order could be applied for.

    My hunch is that at the moment Protection Orders (under the Domestic Violence Act) are never taken off someone’s record, and as they’re not convictions they’re not covered by the Clean Slate provisions. I wonder if that’s true.

  8. Jum on January 13th, 2009 at 10:14

    Is there a ‘yeah right’ factor here in that the perpetrator is sent from home and stays away like a good citizen – what risk is there that he/she will return to knock out any show of new independence on the part of the endangered spouse?

    Intimidation can be mouthed for the spouse and no one else to see. The pattern would already be there and recognised as a real threat.

    Good to see altered thinking that the family should not have to leave home to seek refuge. Otherwise that means they get punished again.

    Also, good that the onus is off the person to have to make a decision re the perp. Wasn’t a trial done in Hamilton a few years back doing just that?

    I also heard a previous police commissioner (might have been Robinson) talk about the rule of the 12 f’s being used to describe/prove domestic violence e.g. f-fear, f-finances, f-family in danger, etc. But no one else seems to remember that, even the local police when I asked about it at a court system open day, once.

  9. Bashing Bills « LudditeJourno on January 13th, 2009 at 23:27

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