Bashing Bills

The new government’s Domestic Violence (Enhancing Safety) Bill has attracted plenty of comment in the blogosphere. 

No Right Turn is concerned police being able to issue “on the spot” protection orders – turfing people who use violence out for up to five days as a cool-down period – could be misused.  He disagrees – and is supported by media law expert Steven Price – with the assessment by the Crown Law Office which finds the proposed legislation consistent with the Bill of Rights Act.

Deborah at the Hand Mirror however, sees the rights of those using violence in context:

It’s a balance thing. Absolutely, being removed from your home is an infringement against your rights. But we infringe against rights all the time, in the elaborate system of compromises that makes up our political state. Equally, living in fear of violence infringes against human rights.

Meanwhile Anita at KiwiPolitico suggests “on the spot” protection orders be reviewed by a judge as quickly as possible after they are made.

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.

My understanding of all the consultative processes regarding the Domestic Violence Act which the Ministry of Justice began in 2007 was that this was the intention of “on the spot” orders.  To provide a window of safety for victims of violence to access protection orders, a window in which women (who apply for 92% of protection orders against male partners) can access support and advocacy.  See the Cabinet Paper notes on this from MoJ to the last government. 

One of the things that has changed from the Labour-led government’s Domestic Violence Reform Bill, drafted before they were kicked out, is the time-frame for the “on-the-spot” orders.  Labour had followed MoJ’s advice, based on 103 submissions to a 2007 discussion paper, and limited the orders to 72 hours.

National, for no reason I can see in the MoJ briefing papers, have extended this period to 5 days.

Another key difference in the two Bills is that National’s does not review inconsistencies between the Care of Children Act 2004 and the Domestic Violence Act 1995.  Labour’s Bill sought to include “psychological abuse” – previously omitted – within issues to be considered in making parenting orders (one of the main purposes of CoCA 2004). 

Labour’s Bill also brought age definitions (children are defined as under 18 in the CoCA and under 17 in the DVA) into alignment, which National’s Bill ignores.  In doing so, Labour were again following the advice of MoJ and the 103 submissions to the first discussion paper.

Finally, Labour’s Bill improved access to education programmes both for those using violence, and those victimised by violence.  They extended the period of time protected people could take up a programme after getting a protection order.  This was a real benefit to women – often immediately post-violence is not the time women want, or are able to, sit around talking about the impact violence has on them.  But several months later, when they have settled themselves and their children, being part of a supportive group can be wonderful.

The second improvement in programme access was in allowing people to do more than one programme if they wish.  This was seen as useful for men using violence – while only one in three of those who start programmes complete them, many men find the lack of support after finishing a programme difficult, especially if they have started to think about how to live without violence. 

Again, this advice came straight from the MoJ, and dare I say it again, the 103 submissions sought on these issues back at the beginning of 2008.  As did the suggestion, retained in National’s Bill, that when an offender is charged in District Court with a domestic violence related crime (eg rape), the District Court should be able to issue a protection order if one is not in place.

It is a little surprising that National have such changes to a Bill already drafted based on public submissions.

But we have a chance to submit, again for some of us, by 27 February.

The main difficulties in keeping victims safe from domestic violence according to every major piece of research since the Domestic Violence Act 1995 is however, not legislation at all.

The problem with justice sector responses to domestic violence in Aotearoa New Zealand is implementation, which is inconsistent, and at times, poor.  And this has literally cost women and children their lives.

A Ministry of Justice evaluation in 2000 overwhelmingly supported the legislation, but recommended training for police and justice sector officials; removing cost barriers for protection orders; and better police response to breaches of protection orders.

A Women’s Refuge report in 2004 found that applications for protection orders had dropped by 25% between 1998 and 2003 – and that women were struggling to be safe because of the bar of what was considered “violence” had shifted upwards after successful advocacy by men’s rights groups.

A 2006 study of protection orders in the New Zealand Law Journal found a lack of knowledge of domestic violence in legal professions:

…because of the way the Act is implemented, use of the Act may not provide the degree of support women need to ensure safety from further violence.

And finally, a huge study by expert lawyers, psychologists and advocates in 2007 which interviewed professionals and victims of violence and said the problem was with how the DVA was used by the justice sector, not the Act itself.  This piece of research, to remind readers what is at stake, opens with the names of the 212 women and children who have been killed in domestic violence homicides since 1995.

Think about all this research when you’re submitting.  “On the spot” protection orders in the hands of police who are not trained in domestic violence are not only open to abuse as No Right Turn suggests.  They may even, without care, discussion with the victims of violence, and access to support services and advocacy, place her and her children in more danger.

And when the police are called to a domestic violence incident in Aotearoa New Zealand every six or seven minutes, that’s a lot of danger.

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One thought on “Bashing Bills

  1. I think you’ve written an excellent and thought provoking piece. Good on you for writing it.
    I recently (at huge financial cost) successfully defeated an application for a protection order because it was based on malice rather than actual danger posed to the applicant. Unlike me, many men can’t afford the legal costs involved in getting a good lawyer to defend such applications, or they defend it themselves and often lose because they are up against trained lawyers.
    My concern is the “abuse factor” that protection orders offer to malicious spouses. Talk to any men’s group and you will hear many, many stories of how protection orders have been used as weapons to keep fathers from their children rather than for real safety reasons. I was one such case.
    I disagree that men’s rights groups have resulted in the number of applications for protection orders decreasing. It is far more complex than that. The women’s refuge report ignores the fact that with the grow of men’s rights groups comes the growth of men behaving more responsibly and living without violence. I do not know of any men’s group that would encourage or tolerate any of its members being violent. These groups play a huge and largely unrecognised role in stopping domestic violence. It is my view these groups do a better job of teaching men to live without violence than court-enforced programmes that are often just a money-spinner for the organisations that run them. The old adage most often applies – “you can lead a horse to water etc.” Men have to want to stop using violence. A man who attends a men’s group has already made that decision.
    Any lawyer will tell you protection orders are blunt and clumsy instruments very open to abuse. They are reactive, not proactive. They in fact provide little or no “real time” protection to a woman. Sadly, few of the unfortunate fatal victims of domestic violence would have be saved from them as the police cannot provide 24/7 protection. They work for people who respect the law, killers have no such respect for the law and often already have a criminal track record of violence. There should be greater resources put into education and support services. The changes to the Domestic Violence Act are simply another example of the government putting a flash, new ambulance at the bottom of the cliff.

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