Wednesday, December 17, 2008

This bill needs a select committee

The Greens have posted the government's Domestic Violence (Enhancing Safety) Bill [PDF]. The bill incorporates some elements of the previous government's Domestic Violence Reform Bill, most notably the ability for police attending a domestic violence incident to issue "police orders" to a suspect where there is insufficient evidence to arrest someone. The threshold for these orders would be "reasonable grounds to believe" that the order is necessary to ensure the safety of the abuse victim - the same standard as would be required for a search warrant (or indeed for arrest) - and would force the suspected offender to "vacate any land or building occupied by a person at risk" for the duration of the order - which can be up to five days (extended from the original three). There is no recourse to the courts or inbuilt judicial oversight. If the subject of such an order is unhappy with it, they can spend tens of thousands of dollars and a few years taking it to a High Court judicial review - by which time of course it will have long expired.

Think about that for a moment: the government wants the police to be able to throw people out of their own homes for up to five days on suspicion.

Such orders might be a useful tool for dealing with domestic violence from persistent abusers. But they unquestionably raise serious human rights and due process issues. Here's what the Ministry of Justice had to say on the previous version of the bill (their advice on the new bill is, of course, unavailable):

11. As such, the effect of an order engages numerous rights under the Bill of Rights Act, including the right of expression under s 14 and the right to freedom of movement under s 18. Further, and noting that the safety order is in substance a short-term version of protection orders made by the Family Court under the existing legislation, the new provisions necessarily lack the procedural and institutional safeguards of that Court. It is therefore necessary to consider whether these various limitations are justifiable in terms of s 5 of the Bill of Rights Act.

12. The explanatory note to the Bill indicates (at 4) that the safety order provisions are intended to provide Police with an alternative where a person is believed to be at risk but where there is not a sufficient basis to arrest and to provide persons at risk with an opportunity to consider their options. There are also indications of practical difficulties faced by people at risk in making use of the existing Family Court regime.

13. Given those considerations, the threshold of necessity under proposed s 124B(1)(b), the relatively short duration of safety orders and the requirement of seniority of authorised officers, I consider that this provision is, on balance, a justifiable limitation on the rights concerned.

That balance is, at the best, very fine, and given the proposed extended duration of the orders, may very well have shifted (it will be interesting to see whether the new advice takes note of that change, or whether it just takes the same "the government wants to do it, so it must be OK" approach seen here). In any case, with such serious human rights issues involved, the bill demands a full debate. And the proper way of getting one is to put it before a select committee and allow public submissions to be heard.

The NBR claims that will happen. I hope so (I also hope Brownlee indicates these things more clearly in his urgency motions in the future. If Cullen could do it, so can he). This bill is too important to be rammed through under urgency. It needs and deserves a select committee.