18 December 2008

An Urgent Submission #2

> NoRightTurn: "This bill needs a select committee" > LAWS179: "An Urgent Submission" > FrogBlog: "New domestic violence bill kept secret from public"

The government's plans about the passing of new measures to allow on-the-spot protection orders remains unclear. Early Monday morning, reports were that the Bill would be passed through all stages under urgency. Later, reports appear to have been amended to suggest the urgency would be for the First Reading only, with the Bill likely to be referred to a Select Committee. But the most recent urgency motion still suggests the Bill will be passed through all stages under urgency.

Since then, the Greens have posted a version of the government's Bill. It's largely based on parts of a previous Bill (one that had not yet been reported on by a Select Committee).

One of my colleagues, Professor Bill Atkin - a renowned family law expert, has expressed a number of technical, practical, and constitutional concerns about the Bill. His concerns were based on the previous version of the Bill, where the orders were to last only for 3 days (and were to be called something different). His concerns are now exascerbated because - under the Bill just released - the orders will now last for 5 days.

Because it's unclear whether he will have an opportunity to put his concerns to a Select Committee, he's agreed to allow me to post a (quickly prepared) version of his concerns on this blog.

In my view, it speaks volumes about the value of Select Committee process. Circumventing the public participation process avoids important concerns - including concerns from those who are experts in the field - being considered and addressed. Bad process leads to bad laws.

UPDATE 18/12/2008: I understand the Bill has just now been referred to a Select Committee for consideration. A sensible course.

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Professor W R Atkin Faculty of Law Victoria University of Wellington 15 December 2008

Safety orders for domestic violence

The new Minister of Justice, the Honourable Simon Power MP, is reported as saying that he plans to see new police powers go through Parliament under urgency before Christmas (NZ Herald, 15 December 2008). The proposal is to allow the police to hand out safety orders in domestic violence situations on-the-spot. Such orders are very similar to the protection orders that the Family Court can grant under the Domestic Violence Act 1995. The idea appears in a Bill introduced before the election by the previous Labour Minister of Justice and is therefore likely to have cross-party support. Advice to the Attorney-General stated that “the effect of an order engages numerous rights under the Bill of Rights Act” but because of “the relatively short duration of safety orders and the requirement of seniority of authorised officers” the limitations on civil rights were “on balance” justified. However, getting a proper balance in this area of the law is fraught: it is an area that exercises the energies of interest groups, including women’s groups and men’s groups. It is the very kind of legislation that ought to be thoroughly tested through the select committee process but urgency means that select committee scrutiny is by-passed. What of the two justifications in the advice to the Attorney-General? With respect to the second justification, the original Bill allows an ordinary constable to issue an order. A senior officer must have given the constable authority but the Bill does not provide that this authority has to be given specifically on each occasion. As it stands, there is nothing to stop a general authorisation being given to ordinary constables. With respect to the first justification, a police-issued safety order lasts only 72 hours. That sounds fine. Home violence is a very serious issue, one of the reasons surely that swayed the vast majority of politicians to vote for the repeal of the old section 59 of the Crimes Act 1961. However, this should not deny a careful assessment of the proposal. The short-term effect of an order is that the respondent is evicted from home and cut off from children. The long-term effect is that the respondent has an order against his or her name, something that may, among other things, affect the outcome of litigation involving the children. There is no mechanism in the Bill at all for challenging the issue of a safety order. Probably the only mechanism for doing so is a cumbersome judicial review application in the High Court or perhaps a civil action if it is claimed that the police acted without reasonable care or with a lack of bona fides. So, the consequences of a safety order, despite its short duration, are serious. We should also ask questions about the granting of these orders. First, no one needs to ask for them: the police act on their own initiative. The test for their granting is that they are “necessary to ensure the immediate safety of [the other person]”. What does “safety mean? It is undefined and is not limited to physical safety. So, a constable may act because of a fear that a person’s psychological safety is at risk. This broadens the scope of the orders enormously. Next, an order can be issued only where an arrest is not made. In other words, we are not dealing with the really serious instances of domestic violence, the ones where the police can use their familiar powers of arrest. By definition we are talking about less serious situations. One might actually wonder whether the new powers might not be more valuable where an arrest is made and the arrested person may be released within 72 hours. Finally, for the purposes of this brief comment, there is no provision at all for the respondent to put forward a different side of the story or advance an explanation and, if any such explanation happens to be given, there is no provision for it to be taken into account. It is fair enough to treat domestic violence as a top priority. While one may have constitutional qualms about these new police powers, it looks as though they will be enacted very soon. There remain however important aspects of the form of the legislation that really need to be carefully scrutinised.

1 comment:

Will de Cleene said...

A thought occurs. If the reigns aren't kept tight around this thing, we could well have our own Anti-Social Behaviour Orders in effect. Like the Criminal Proceeds Bill, the need for all that nasty mucking about in the courts is done away with. The police will have the unchecked power to enforce pleasantness.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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