Thursday, February 26, 2009


Below is the draft of my submission on the Domestic Violence (Enhancing Safety) Bill, which I'll be posting away later this afternoon. It is based on posts made here, here, here, here, and here.

  1. While I support the aims of the Domestic Violence (Enhancing Safety) Bill, I oppose a key part of it, and ask that it be passed with amendments.
  2. I support the amendments to the Sentencing Act 2002 in Part 2, the Bail Act 2003 in Part 3, and the amendments to the Domestic Violence Act 1995 in sections 3 to 6 of Part 1. These amendments collectively address a key flaw in our existing domestic violence regime: the difficulty of enforcement. I ask that they be passed.
  3. I oppose new Part 6A, relating to on the spot “police orders”, and ask that it be amended to ensure that it conforms with the values affirmed in the New Zealand Bill of Rights Act 1990.
  4. Domestic violence is responsible for approximately 50% of all homicides, and 12,000 violent assaults a year. Combating it is undoubtedly an important public goal. But our means of doing so must be consistent with our fundamental values of fairness, justice, and the rule of law. The amendments proposed in new Part 6A are not consistent with these values. As written, they impose a significant penalty on a relatively low threshold of evidence with no effective possibility of review. This violates the rights to freedom of movement and justice affirmed in the BORA.
  5. The orders impose a significant penalty: A police order requires not only that its subject not assault, threaten, intimidate, harass, or damage the property of the person it protects – it also requires them to “vacate any land or building occupied by a person at risk, whether or not he or she has a legal or equitable interest in the land or building”. In plain English, that means kicking people out of their homes and effectively sentencing them to a short period of internal exile. The Ministry of Justice considers this to be a “very broad and intrusive effect” which “necessarily limits various significant legal rights of the person against whom it is made” and prima facie violates the right to freedom of movement. Such a significant penalty should be ideally imposed by a court, not by a mere police officer. If it must be imposed as an “on the spot” measure, it should be for only as long as reasonably necessary to apply to the Family Court for a full protection order – one or two days at most.
  6. The threshold for an order is low: The criteria for issuing an order laid out in new section 124B amount essentially to suspicion – a very low threshold on which to impose a penalty, let alone one as severe as throwing someone out of their home. In addition, the matters an issuing officer must have regard to are vague, and the inclusion of s124B (2) (e) – “any other matter the constable considers relevant” – provides a catchall clause which invites abuse. Finally, it is also questionable whether, in the circumstances where the orders are expected to be used, they would actually be necessary. As noted by the Law Commission,
    it is difficult to envisage circumstances that would meet the threshold of having "reasonable grounds to believe ... [it] is necessary to ensure the immediate safety" of an at risk person, where it would not also attract a power of arrest.
    In other words, suspected offenders could simply be arrested and charged.
  7. There is no effective review: The bill makes no provision for orders to be appealed or reviewed. While in theory an order could be subject to judicial review by the High Court, in practice the point will be moot long before a review gets on the docket. Such unreviewable power has no place in a democracy, and is a prima facie violation of the right to justice (including the right to appeal) affirmed in the BORA. There seems to be no reason for this violation beyond administrative convenience.
  8. An unjustified limitation: The proposed powers in the bill violate several rights affirmed in the BORA. In order to be a “justified limitation” of those rights under s5, a policy must be rationally connected to an important public goal, and it must be proportionate to achieving that goal. As noted above, combating domestic violence is undoubtedly an important goal, and there is clearly a rational connection. But the severity of the penalty combined with the low threshold and lack of effective judicial review render it disproportionate. If the orders are intended to provide protection for victims until a full order can be granted by the Family Court, they clearly last too long; if they are intended as a punishment then the threshold is too low and they should be imposed by a judge. Absent judicial oversight, they constitute punishment without trial.
  9. Recommendations: New part 6A should not be passed in its current form. Instead, it should be amended to:
    1. Provide an express right of appeal;
    2. Reduce the duration of the orders to only the time necessary for a victim to apply to the Family Court for a full protection order: one day, or two days on weekends;
    3. Remove s124B (2) (e).
  10. I do not wish to make an oral submission to the Select Committee.