Tuesday, January 06, 2009

The domestic violence bill and the BORA

The government's BORA analysis for the Domestic Violence (Enhancing Safety) Bill went up a few days ago - a mere two weeks after it passed its first reading in the House - and with the bill currently being open for submissions, its worth taking a look at.

For those who don't know, the bill would allow police officers to respond to domestic violence by issuing alleged offenders with "police orders" exiling them from their homes for up to five days, on suspicion. Crown Law at least recognises that this is prima facie inconsistent with numerous sections of the BORA:

First, an order made under cl 7 is of very broad and intrusive effect and limits the rights of the person against whom it is made to expression (s 14 of the Bill of Rights Act) and movement (s 18). Further and more significantly, an order necessarily limits various significant legal rights of the person against whom it is made – notably, in denying that person access to land or buildings that he or she may own or otherwise be entitled to enter or use – by decision of a non-judicial officer and without procedural safeguards either at the time or by way of subsequent review or appeal, and so raises an issue as to compliance with the right to natural justice affirmed by s 27(1). Further, there is also limited immunity for the Crown and Police, under which there is no substantive redress for an order that is made or implemented in an unjustified manner, albeit in good faith and with reasonable care.
Unfortunately, it falls down on the analysis. In order to be a "justified limit" under the BORA, a policy must be rationally connected to an important public goal, and it must be proportionate to achieving that goal. There's no question that preventing and punishing domestic violence is an important public goal, and this is pretty clearly a policy aimed at addressing it. But on the key question of proportionality, Crown Law simply fudges. The fact that the police are "only" kicking people out of their own homes for five days, and that the orders are made by senior police officers (who of course are not steeped in a police culture of unaccountability and punitiveness) apparently makes everything OK. The fact that this is a very substantial limitation of freedom is simply not addressed. No comparison is made with existing police powers of summary punishment (a standard "infringement fee" or instant fine is on the order of $200, though they can go far higher for serious speeding offences) or to limit freedom (the police cannot hold you for more than IIRC 24 hours without charging you - meaning they need to put up some evidence; even when they have a compelling public purpose to limit freedom, such as detaining illegal immigrants for immediate return, this still requires judicial oversight within 72 hours). And its clear why: the proposed orders are far in excess of existing police powers. The fact that they may be issued without any form of hearing or review of evidence, simply on a police officer's suspicion, makes them very troubling indeed.

These police orders may very well be an effective means of dealing with domestic violence - but so is summary execution. That of course would clearly be disproportionate - not to mention violating some pretty fundamental human rights. And so are these proposed powers. I don't like wife-beaters, but even they have a right to fairness, to due process, and to checks and balances to ensure they are actually guilty of what they are accused of and that the police are not abusing their powers. The best way of ensuring those rights - and the right of their victims to justice - is by arresting, charging, and prosecuting them. And given that issuing an exile order requires exactly the same evidentiary barrier as arrest - "reasonable grounds to believe" - there seems to be no reason why that cannot be done. That is, after all, the police's job.

This bill threatens a dangerous expansion of police powers of summary justice, and a dangerous erosion of the principle that no-one should be punished without trial. Parliament should reject it.