Strengthening New Zealand’s Legislative Response to Family Violence

August 5, 2015 by robmccann

Download the discussion document

The Ministry of Justice is consulting about New Zealand’s family violence laws. The domestic violence act was introduced in 1995 (reviewed in 2007) and the discussion document is an opportunity to review the current laws and approach and have your say. The Ministry want to know your views about the ideas presented in the discussion document along with any other ideas you have for strengthening New Zealand’s family violence laws.

Here are some views of Judge Peter Boshier, Chair of the White Ribbon Campaign

Part One

Is there scope for broadening the definition of family violence and including guiding principles?

The definition is generally sound but certainly could be broadened. What will help is the setting down of guiding principles, and sense of expectation and consequence. This has worked well overseas. It has also been the hallmark of the success of the Children, Young Persons and their Families Act where guiding principles have heavily influenced judicial decision making. I think too that having a greater emphasis on accountability and consequence will assist judiciary, Police and health professionals in approaching this issue and exercising judgment. A good, modern example of requiring accountability is to be seen in the recently passed Vulnerable Children Act 2004.

Victim safety: Are there better ways of applying for orders and for our responses to breaches?

I would like to see a completely new approach to how orders can be applied for. I would like these to be “online” and for applicants to be able to choose options in a similar way to how Survey Monkeys have been created. There can be simple fields for supporting information. All-important accompanying certificates such as medical and police family violence reports can be scanned and attached. I do not see conventional sworn affidavits as being necessary and think that the information should be able to be verified as to truth and consequence by the applicant and a scanned signature attached.

There is good scope for having a wider range of applicants acting for someone else.

I think our responses to breaches have been too weak and that there should be a default position as to consequence. When a disqualified driver is apprehended by Police, little discretion is exercised – they will invariably be prosecuted and the court has little discretion because of the default expectations created. Similar clear expectations should apply to breaches.

There is good scope when property orders are made, for better dealing with consequence as to whether it is wise for the victim to continue living in the same house as the perpetrator or whether he should be required to live elsewhere in supported accommodation.

The safety of victims and children caught up in family violence will be greatly enhanced if there is a mandatory expectation of risk assessment, so that the true nature of the risk being faced is known. At the moment, it is not. The Police ODARA risk assessment tool is known to have limitations. However we have good risk assessment tools in operation overseas. One of the single most important outcomes of this discussion paper may be legislative backing for risk assessment and accordingly triage to gauge future response.

Prosecuting family violence perpetrators

The paper asks whether we should “create a standalone family violence offence or a class of offences” and on page 33 of the paper, three examples are given. New Zealand is now behind other countries in this respect because family violence is not recognised at all other than through the obscure label of “male assaults female”. The Minister’s reference to the Law Commission as to whether or not there should be a standalone offence of non-fatal strangulation is an example of what such a standalone offence might look like. There is merit of having a clear label attached to family violence offending and of that being available to any police officer or judge who sees a criminal conviction record. Many countries have chosen to keep generic violence offences but add in as an aggravating factor, whether or not it has occurred in context of family violence. This particular approach is also very attractive.

The paper also asks what changes there might be to court processes and structure to enable criminal courts to respond better to family violence cases.

Our domestic violence courts have been well intentioned but have met with limited success. The clear guiding principles I suggested earlier will help, and these could include mandatory timelines for disposition of cases and default expectations as to consequence. At the moment procedure is too driven by conventional criminal procedure process and allowing judges to be much more directive in how cases are handled may encourage victims to seek access to the criminal justice process but at the same time maintain the appropriate balance of natural justice for perpetrators. Judges should be able to hear family violence cases quickly and on terms that they direct, rather than an open ended ill-defined basis.

Should there be an additional pathway to safety?

This section of the paper asks whether victims should be able to access services short of having to go to court. Since the Family Court began in 1981, there has been an ability of those in conflict to seek help through the court short of applying for orders. A self-referral where there is escalating conflict and the beginning of domestic violence, may well save a life later. A victim should also be able to ask that another person attend for an assessment or a discussion or both where family violence is occurring or the victim fears it is about to.

A very helpful and insightful suggestion is that Police take at least one of the following steps when responding to family violence reports, that they file a criminal charge (or issue a warning), issue a Police safety order, or make a referral to a funded service or services or an assessment?

What better services for victims, perpetrators and whanau should there be?

On page 45 of the paper suggestions for enhancement of sharing of information between agencies and between courts is set out. Good decisions can only be made on full information. This is exactly the basis upon which medical professionals work – they rarely operate or suggest medical procedure without knowing all the facts. We need to do the same when it comes to outcomes of family violence. We may be dealing with lethality and not even know it. Clear expectations as to sharing of information will help and a good clinically based risk assessment for judges may be instrumental in better decision making over bail and sentencing. There is scope for overall relaxation of privacy so that all possible relevant information is permitted to be shared while always retaining the right of anyone affected by decision making to challenge the basis of doing so.

One of the justifications for this approach is because we are not just dealing with adults and their rights but children who have equal rights but cannot express or claim them. The state must be protective and principles of privacy may be required to adjust accordingly.