Amicus Curiae: Balancing Privacy and Safety – proposed legislative responses to family violence

Jack Garden, content contributor

New Zealand has a shameful domestic violence record. In 2014, Police attended over 100,000 domestic violence incidents, and Women’s Refuge received over 78,000 crisis calls. Successive governments have moved to conduct inquiries, fund publicity campaigns and strengthen legislation in attempts to tackle the problem. Ministerial initiatives have come and gone without a significant decrease in the shocking statistics.

Justice Minister Amy Adams hopes to break this trend with a fresh proposal to continue the struggle against the country’s depressingly persistent domestic abuse statistics. In a discussion document released for consideration by the public, the Minister proposes to amend the Domestic Violence Act 1995 and associated legislation to better reflect our current understanding of how abuse occurs.

The document considers several alterations to the way the justice system approaches cases of domestic violence. The central proposal that has received the most press coverage is the introduction of a legislative presumption that the rights of offenders under the Privacy Act 1993 are trumped by safety concerns for families. This would mean that information previously held independently by the Police, CYFS, or associated agencies would be able to be legally shared. As a lack of inter-agency teamwork has previously been identified as a crucial failing in other serious cases of domestic violence, it is hoped that this will help social services connect the dots on domestic violence before it’s too late.

The new powers could go even further and allow police to inform new partners of known domestic abusers of their previous pattern of behaviour, allowing for individuals to be aware of red flags early in a potential relationship. While some have highlighted this idea as a welcome safeguard, as the Minister admitted, it is difficult to imagine “after a third date … nipping down to the police” to see if he has a record, and allowing social services to share information with each other seems a more likely route to identifying and reacting to domestic abusers.

The more effective changes then may be in the procedural changes to the legislation. The document includes a suggestion that an entirely new offence directed against perpetrators of domestic violence be introduced. While the Crimes Act 1961 already specifically criminalises males assaulting females, a new offence modelled on the similar British crime of “coercive control” is a possibility. This could be tailored to encompass methods of abuse which lack the especially violent element but still have a devastating psychological toll on their victims, hopefully catching domestic abusers earlier before causing additional damage.

A further proposed amendment is to improve the accessibility of protection orders, a common remedy used by the Family Court the protect victims by ordering abusers to refrain from contacting them. The orders have been attacked previously as too technical for victims to rapidly understand and apply for, and in any case are often flouted by offenders. Proposed changes currently on the table would provide increased legal support for victims to apply for the orders, and more stringent responses to breaches. The orders are a crucial solution for levels of abuse that are significant, but insufficiently criminal as to warrant a more serious charge, and increasing their bite is a sensible approach to ensuring the justice system is able to respond to all varieties of domestic abuse.

The proposals have been received positively by many commentators, though there has been scepticism expressed as to whether this new consultation will produce any more tangible results than the last. As public submissions do not close until 18 September, it is unclear what components of the document will make it to Parliament. As the Minister admits, “[w]e can’t legislate our way out of this.” It is sensible, however, that legal framework that addresses domestic abuse be held up to closer scrutiny. If any lives can be saved then the exercise must be more than just a further bureaucratic discussion paper.

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