The Justice and Electoral Committee has examined the Domestic Violence (Enhancing Safety) Bill and recommends that it be passed with the amendments shown.
Introduction
This bill amends the Domestic Violence Act 1995, the Sentencing Act 2002, and the Bail Act 2000 to strengthen the criminal justice response to family violence in order to protect victims.
The bill proposes a number of key amendments to the Domestic Violence Act to strengthen the police’s response to domestic violence:
giving the police the ability to issue “on-the-spot” Police orders
removing the statutory criteria that the police must take into account when considering whether to arrest, without warrant, a person who they have good cause to suspect has committed a breach of a protection order
reforming the structures and penalties for contravening a protection order.
This commentary covers the major amendments that we recommend. We also recommend various minor and technical amendments to clarify the intent of the bill, which are not discussed in this commentary.
We were pleased to receive advice from Ministry of Justice officials that we should see further domestic violence legislation by the end of July.
Commencement
Clause 2 of the bill as introduced provides that the bill will come into force on a date to be appointed by the Governor-General by Order in Council. We recommend amending clause 2 to provide that all the provisions in the bill, excluding clause 7 and new Part 2, will come into force when the bill is enacted.
We were advised that a provision allowing legislation to commence by Order in Council should not be included in a bill unless it is clearly justifiable. We consider that in order to allow time for preparatory work to be undertaken such as modifications to computer information systems and extra training for the police, and for amendments to be made to the Sentencing Act Regulations 2002 and the Domestic Violence (General) Regulations 1996, it is justifiable for the remaining provisions to come into force on 1 July 2010 and not by Order in Council as proposed by the bill as introduced.
Police orders
New Part 6A introduces a regime relating to Police orders. Such orders are intended to protect victims of domestic violence.
We recommend a number of amendments to new Part 6A to improve the effectiveness of the new enforcement initiative.
Interpretation
We recommend replacing the term “Police order” with “Police safety order”, to reflect more clearly the purpose of the order, and to distinguish these new orders from protection orders issued by the Family Courts and District Courts.
Qualified constable may issue order
As introduced, new section 124B(1) would allow an order to be issued where there is insufficient evidence to arrest a person for an offence but where a constable has reasonable grounds to believe that the order is necessary to ensure the safety of another person.
We recommend amending new section 124B to make it clear that where a person was arrested for an offence that was not an offence involving domestic violence, an order could still be issued against that person. This would ensure that where a constable was responding to a domestic violence incident and had found evidence of another offence, the constable could make an arrest for that offence and would not be precluded from issuing the order.
The circumstances in which an order can be issued are specified in new section 124B(1). As introduced this section provides that an order may be issued against person A only when person A is in a domestic relationship with person B. Section 7 of the Domestic Violence Act allows any person who is or has been in a domestic relationship with another person to apply for a protection order in respect of that other person. To ensure consistency with section 7 of the Domestic Violence Act we recommend amending new section 124B(1) to include partners from previous relationships.
We recommend removing the condition that an order can be issued only if it is necessary to safeguard the “immediate” safety of a person. This would ensure that the decision whether to issue the order took into consideration the safety of that person over the next few hours or days, and not just at the time that the police were called to the domestic violence incident.
New section 124B(2) sets out the matters to which the constable must have regard when considering whether to issue an order; one is whether there is a serious likelihood that domestic violence might be used. Because of its imprecision, we recommend that “serious” be deleted.
We recommend amending new section 124B(3) to clarify that a constable who is not a “qualified constable” must receive authorisation from a “qualified constable” for each order the constable believes should be issued.
Consent to issue order not required
We heard evidence on new section 124C, which would allow an order to be issued without the consent of the person for whose safety the order was proposed. We consider that as the victim’s decision might be influenced by the other person’s presence at the scene of the incident, and to avoid the person at risk being seen by the alleged violent person as responsible for the order being issued, the safety of the victim would be better safeguarded by not requiring the victim to consent to the order being issued.
Effect of order
We recommend amending new section 124E(1) to require the person against whom the order is issued to immediately surrender any firearms licence held by him or her. As introduced, new section 124E(1) only requires that this person surrender any firearms or weapon in his or her possession or control and to vacate any land or building occupied by the person at risk. We also recommend inserting new section 124EA to provide that any firearms licence held by the person against whom an order is issued is deemed to be suspended for the duration of the order and that person is deemed to not be the holder of a firearms licence.
We note that our recommended new section 124EA differs from sections 21 and 24 of the Domestic Violence Act on which it was modelled. Section 21 provides that once a respondent has been served with a protection order, any firearms licence that the respondent holds must be surrendered to the police as soon as practicable, but no later than 24 hours after being served with the order. We were advised that this difference reflects the different circumstances in which protection orders and Police safety orders are to be served. When the Family Court or the District Court have issued a protection order this would subsequently be served on the respondent; on the other hand it is envisaged that a Police safety order would be issued and served while the alleged violent person was present at the scene of the domestic violence incident. Therefore it is not necessary for new section 124E(1) to include a period within which a firearms licence must be surrendered. We also note that as the duration of the order is not to exceed five days, a firearms licence needs to be surrendered without delay in order to secure the safety of the at-risk person.
As surrendering firearms licences is a condition of every order, our recommended amendments to new section 124I make it clear that it would be a breach of a condition of the order if the person against whom the order was issued did not comply with this condition. Some of us are concerned with the consequences of requiring a person against whom an order is issued to surrender his or her firearms licence, as there might be situations where the person is legitimately unable to surrender the firearms licence and as a consequence may have proceedings brought against them under new section 124I.
New section 124E also sets out the conditions of an order. As introduced new section 124E(2)(i) prohibits the person against whom the order is issued from contacting the person at risk. We recommend amending new section 124E(2)(i) to clarify that contact by emails and text messages would be included in the prohibition. As new section 124E(2)(i) is similar to section 19(2)(e) of the Domestic Violence Act, which relates to conditions for protection orders, we recommend the inclusion of new clause 3A to also amend section 19(2)(e).
Order to be served and explained
We recommend inserting new section 124FB to include an offence provision to cover situations where a person against whom an order is to be issued fails to remain where directed by the constable, so that arrangements can be made for the order to be issued and served. The maximum penalty for this offence would be a $500 fine. As introduced the bill would not allow the police to take action against a person who left the scene of a domestic violence incident in order to avoid being served with an order.
Ordinarily the police cannot arrest a person without a warrant if the offence only results in a fine; we recommend that new section 124FB be accompanied by a provision to allow the police to arrest, without warrant, a person who commits this offence.
We also recommend new section 124FB clarify that the period of time that a constable is allowed to detain a person in order for arrangements to be made for the order to be issued and served would include the time it took for a constable who is not a qualified constable to obtain authorisation to issue the order.
We do not recommend that this two-hour detention period be extended. We consider that this period is sufficient and note that similar provisions in the Bail Act, relating to the preparation and signature of a bail bond, and in the Sentencing Act, relating to the preparation and service of a sentencing order, also provide for a two-hour detention period.
We recommend inserting new section 124FA to clarify that an order must be served within 48 hours of issue; if it had not been served after 48 hours the order would lapse.
Duration of order
New section 124H provides that an order will come into force immediately after it has been served and will continue in force for up to five days. We examined whether the duration of the order should be shortened or extended and concluded that the duration of the order should not be changed. We considered that extending the duration of the order would make the constable’s considerations, of matters relating to hardship and to the welfare of children, when deciding whether to issue an order more complex. The duration of the order does not need to be shortened as new section 124H of the bill as introduced gives the police the discretion to decide whether a shorter-length order may be more appropriate and allows them to factor in weekends, public holidays, and an individual’s ability to access the courts if necessary.
Failure or refusal to comply with order
We recommend replacing new section 124I of the bill as introduced with new sections 124I to 124IF to clarify how the police and the District Court would deal with a person who had failed or refused to comply with an order.
New section 124I of the bill as introduced provides that if a person served with an order fails or refuses to comply with the order, that person may be taken into custody and brought before the District Court. The court could direct that the order be extended for up to five days, direct that another order be issued, or make a temporary protection order.
As the bill does not make a breach of an order an offence, there is uncertainty as to how a hearing for a failure or refusal to comply with an order might be referred to the District Court. To clarify this we recommend inserting new section 124I(3) to allow the police to make an application to the District Court by way of a complaint.
Where a person cannot be brought before a District Court within 24 hours that person must be released and served with a summons to appear at a later time. Our recommended new section 124IA would provide that if a person served with a summons does not appear at the court at the time and place specified in the summons, he or she may be arrested and brought before the court.
We recommend inserting new section 124IB to distinguish between the jurisdiction of a District Court that is presided over by one or more Justices, by one or more Community Magistrates, or by a District Court Judge. This section clarifies that when the court is not presided over by a District Court Judge and the court is satisfied that a person has failed or refused to comply with an order to the extent that it may be appropriate for a temporary protection order be issued, the court may adjourn proceedings and direct that the order continue in force or that a new order be issued. We consider that the expertise and skill of a District Court Judge is required to determine whether a temporary protection order should be issued.
The bill as introduced does not address how the police should respond to a person who has failed or refused to comply with the order. We recommend inserting new section 124IC to include a provision similar to section 36 of the Bail Act. This would allow the District Court to issue a warrant to allow a constable to arrest a person who had failed or refused to comply with the order, or who failed to attend the court at the time and place the court proceedings had been adjourned to under new section 124IB(1)(c)(i). The constable executing the warrant may enter at any time on to any premises, by force if necessary, if the constable has reasonable grounds to believe that the person against whom it is issued is on those premises.
We recommend inserting new section 124ID to allow the District Court, after it has determined that a temporary protection order is to be issued, to detain the person for a period not exceeding two hours for the purpose of issuing and serving the temporary protection order.
We recommend inserting new section 124IE to provide that immediately after the District Court has issued a temporary protection order the order should be referred to the Family Court nearest to where the protected person resides. This amendment is consistent with new section 123F of the bill as introduced, which relates to protection orders issued at the time an offender is sentenced in the criminal courts for a domestic violence offence.
For consistency with new section 123F of the bill as introduced we also recommend inserting new sections 124IE and 124IF to provide that once a temporary protection order issued by the District Court has been received by the Family Court, this order should be entered into the records of the Family Court and then treated as if it were an order made by the Family Court.
Amendments to the Sentencing Act
Part 2 of the bill as introduced amends the Sentencing Act to enable the criminal courts when sentencing an offender convicted of an offence involving domestic violence to issue a protection order if the court is satisfied that the order is necessary for the victim’s protection and the victim does not object to the order being made.
Protection orders
As introduced, new section 123B(1)(c) provides that a court may not make a protection order against an offender if the victim of the offence has made an application for a protection order and that application is awaiting determination in a Family Court or District Court.
We recommend deleting new section 123B(1)(c) and inserting new section 123B(4) to provide that the courts may issue a protection order against an offender in such cases. We also recommend inserting new section 123B(5) to provide that the proceedings in the Family Court or District Court for a protection order would then end. We consider that a sentencing court should not be precluded from making a protection order if it considers that the protection order is necessary for the protection of the victim of the offence.
Explanation of protection orders
As introduced, new section 123D requires that after the issue of a protection order the Judge or Registrar must explain to the offender the effect of the order and the consequences of failing to comply with the order. We recommend amending new section 123D to require that the Judge or Registrar also explain to the offender the effect of a court’s direction to attend a stopping violence programme and the consequences of failing to attend any session of a programme. We consider that this amendment would help offenders to understand the importance of attending stopping violence programmes.
Consent for the protection order
We considered whether the requirement for the victim to not object to the making of the protection order, new section 123B(2)(b), should be removed. We concluded that it is important for victims to be involved in the process for issuing protection orders and do not recommend removing new section 123B(2)(b).
Amendments to the Bail Act
Part 3 of the bill as introduced would amend the Bail Act to allow the police, when considering whether to grant bail to a person who has been charged with a domestic violence offence, to impose any conditions considered reasonably necessary to protect any child who is in a domestic relationship with that person.
To ensure that other family members of the victim of the alleged offence, such as new partners or elderly parents, would be protected, we recommend amending clause 11 to allow the police to impose any conditions considered reasonably necessary to protect any particular person who lives with the victim.
New Zealand Labour view
We note that the Domestic Violence Reform Bill (introduced by the previous Labour government, and on the Order Paper), in addition to Police safety orders, includes a number of amendments which provide a more comprehensive and enhanced approach to addressing domestic violence and providing better protection for domestic violence victims.
These include increasing the age at which protection orders applied to minors from under 17 years to under 18 years of age, empowering the Court to make interim orders to protect the welfare of the child in cases where an applicant with a child applies for a protection order, requiring the judge considering a “without notice” application for a protection order to provide written reasons (if it is not granted), providing for applicants to attend information sessions on protection orders and advice on social assistance, providing the power to direct attendance at an addiction treatment programme, and amending the Care of Children Act 2004 to include psychological abuse.
The Domestic Violence Reform Bill was the culmination of extensive community consultation over a considerable time-frame and the views of the public were included in the bill. Indeed many submitters argued that the amendments should be incorporated in the Domestic Violence (Enhancing Safety) Bill.
Regrettably the amendments fall outside the narrow scope of the Domestic Violence (Enhancing Safety) Bill. Whilst Police safety orders address one aspect of domestic violence, victims of domestic violence have been denied protection by the limited scope of this bill.
Progression of the Domestic Violence Reform Bill would have addressed many of the concerns raised by victims rights organisations, Women’s Refuges and the community, and would have provided greater protection and enhanced services for victims of crime.
We urge the Government to progress without delay the amendments as outlined in the Domestic Violence Reform Bill. Despite an assurance from the Minister of Justice that new legislation would be before the House in June we note that this is yet to happen.
Appendix
Committee process
The Domestic Violence (Enhancing Safety) Bill was referred to us on 16 December 2008. The closing date for submissions was 27 February 2009. We received and considered 66 submissions from interested groups and individuals. We heard 22 submissions.
We received advice from the Ministry of Justice and the New Zealand Police. The Regulations Review Committee reported to us on clause 2.
Commentary
Recommendation
The Justice and Electoral Committee has examined the Domestic Violence (Enhancing Safety) Bill and recommends that it be passed with the amendments shown.
Introduction
This bill amends the Domestic Violence Act 1995, the Sentencing Act 2002, and the Bail Act 2000 to strengthen the criminal justice response to family violence in order to protect victims.
The bill proposes a number of key amendments to the Domestic Violence Act to strengthen the police’s response to domestic violence:
giving the police the ability to issue “on-the-spot” Police orders
removing the statutory criteria that the police must take into account when considering whether to arrest, without warrant, a person who they have good cause to suspect has committed a breach of a protection order
reforming the structures and penalties for contravening a protection order.
This commentary covers the major amendments that we recommend. We also recommend various minor and technical amendments to clarify the intent of the bill, which are not discussed in this commentary.
We were pleased to receive advice from Ministry of Justice officials that we should see further domestic violence legislation by the end of July.
Commencement
Clause 2 of the bill as introduced provides that the bill will come into force on a date to be appointed by the Governor-General by Order in Council. We recommend amending clause 2 to provide that all the provisions in the bill, excluding clause 7 and new Part 2, will come into force when the bill is enacted.
We were advised that a provision allowing legislation to commence by Order in Council should not be included in a bill unless it is clearly justifiable. We consider that in order to allow time for preparatory work to be undertaken such as modifications to computer information systems and extra training for the police, and for amendments to be made to the Sentencing Act Regulations 2002 and the Domestic Violence (General) Regulations 1996, it is justifiable for the remaining provisions to come into force on 1 July 2010 and not by Order in Council as proposed by the bill as introduced.
Police orders
New Part 6A introduces a regime relating to Police orders. Such orders are intended to protect victims of domestic violence.
We recommend a number of amendments to new Part 6A to improve the effectiveness of the new enforcement initiative.
Interpretation
We recommend replacing the term “Police order” with “Police safety order”, to reflect more clearly the purpose of the order, and to distinguish these new orders from protection orders issued by the Family Courts and District Courts.
Qualified constable may issue order
As introduced, new section 124B(1) would allow an order to be issued where there is insufficient evidence to arrest a person for an offence but where a constable has reasonable grounds to believe that the order is necessary to ensure the safety of another person.
We recommend amending new section 124B to make it clear that where a person was arrested for an offence that was not an offence involving domestic violence, an order could still be issued against that person. This would ensure that where a constable was responding to a domestic violence incident and had found evidence of another offence, the constable could make an arrest for that offence and would not be precluded from issuing the order.
The circumstances in which an order can be issued are specified in new section 124B(1). As introduced this section provides that an order may be issued against person A only when person A is in a domestic relationship with person B. Section 7 of the Domestic Violence Act allows any person who is or has been in a domestic relationship with another person to apply for a protection order in respect of that other person. To ensure consistency with section 7 of the Domestic Violence Act we recommend amending new section 124B(1) to include partners from previous relationships.
We recommend removing the condition that an order can be issued only if it is necessary to safeguard the “immediate” safety of a person. This would ensure that the decision whether to issue the order took into consideration the safety of that person over the next few hours or days, and not just at the time that the police were called to the domestic violence incident.
New section 124B(2) sets out the matters to which the constable must have regard when considering whether to issue an order; one is whether there is a serious likelihood that domestic violence might be used. Because of its imprecision, we recommend that “serious” be deleted.
We recommend amending new section 124B(3) to clarify that a constable who is not a “qualified constable” must receive authorisation from a “qualified constable” for each order the constable believes should be issued.
Consent to issue order not required
We heard evidence on new section 124C, which would allow an order to be issued without the consent of the person for whose safety the order was proposed. We consider that as the victim’s decision might be influenced by the other person’s presence at the scene of the incident, and to avoid the person at risk being seen by the alleged violent person as responsible for the order being issued, the safety of the victim would be better safeguarded by not requiring the victim to consent to the order being issued.
Effect of order
We recommend amending new section 124E(1) to require the person against whom the order is issued to immediately surrender any firearms licence held by him or her. As introduced, new section 124E(1) only requires that this person surrender any firearms or weapon in his or her possession or control and to vacate any land or building occupied by the person at risk. We also recommend inserting new section 124EA to provide that any firearms licence held by the person against whom an order is issued is deemed to be suspended for the duration of the order and that person is deemed to not be the holder of a firearms licence.
We note that our recommended new section 124EA differs from sections 21 and 24 of the Domestic Violence Act on which it was modelled. Section 21 provides that once a respondent has been served with a protection order, any firearms licence that the respondent holds must be surrendered to the police as soon as practicable, but no later than 24 hours after being served with the order. We were advised that this difference reflects the different circumstances in which protection orders and Police safety orders are to be served. When the Family Court or the District Court have issued a protection order this would subsequently be served on the respondent; on the other hand it is envisaged that a Police safety order would be issued and served while the alleged violent person was present at the scene of the domestic violence incident. Therefore it is not necessary for new section 124E(1) to include a period within which a firearms licence must be surrendered. We also note that as the duration of the order is not to exceed five days, a firearms licence needs to be surrendered without delay in order to secure the safety of the at-risk person.
As surrendering firearms licences is a condition of every order, our recommended amendments to new section 124I make it clear that it would be a breach of a condition of the order if the person against whom the order was issued did not comply with this condition. Some of us are concerned with the consequences of requiring a person against whom an order is issued to surrender his or her firearms licence, as there might be situations where the person is legitimately unable to surrender the firearms licence and as a consequence may have proceedings brought against them under new section 124I.
New section 124E also sets out the conditions of an order. As introduced new section 124E(2)(i) prohibits the person against whom the order is issued from contacting the person at risk. We recommend amending new section 124E(2)(i) to clarify that contact by emails and text messages would be included in the prohibition. As new section 124E(2)(i) is similar to section 19(2)(e) of the Domestic Violence Act, which relates to conditions for protection orders, we recommend the inclusion of new clause 3A to also amend section 19(2)(e).
Order to be served and explained
We recommend inserting new section 124FB to include an offence provision to cover situations where a person against whom an order is to be issued fails to remain where directed by the constable, so that arrangements can be made for the order to be issued and served. The maximum penalty for this offence would be a $500 fine. As introduced the bill would not allow the police to take action against a person who left the scene of a domestic violence incident in order to avoid being served with an order.
Ordinarily the police cannot arrest a person without a warrant if the offence only results in a fine; we recommend that new section 124FB be accompanied by a provision to allow the police to arrest, without warrant, a person who commits this offence.
We also recommend new section 124FB clarify that the period of time that a constable is allowed to detain a person in order for arrangements to be made for the order to be issued and served would include the time it took for a constable who is not a qualified constable to obtain authorisation to issue the order.
We do not recommend that this two-hour detention period be extended. We consider that this period is sufficient and note that similar provisions in the Bail Act, relating to the preparation and signature of a bail bond, and in the Sentencing Act, relating to the preparation and service of a sentencing order, also provide for a two-hour detention period.
We recommend inserting new section 124FA to clarify that an order must be served within 48 hours of issue; if it had not been served after 48 hours the order would lapse.
Duration of order
New section 124H provides that an order will come into force immediately after it has been served and will continue in force for up to five days. We examined whether the duration of the order should be shortened or extended and concluded that the duration of the order should not be changed. We considered that extending the duration of the order would make the constable’s considerations, of matters relating to hardship and to the welfare of children, when deciding whether to issue an order more complex. The duration of the order does not need to be shortened as new section 124H of the bill as introduced gives the police the discretion to decide whether a shorter-length order may be more appropriate and allows them to factor in weekends, public holidays, and an individual’s ability to access the courts if necessary.
Failure or refusal to comply with order
We recommend replacing new section 124I of the bill as introduced with new sections 124I to 124IF to clarify how the police and the District Court would deal with a person who had failed or refused to comply with an order.
New section 124I of the bill as introduced provides that if a person served with an order fails or refuses to comply with the order, that person may be taken into custody and brought before the District Court. The court could direct that the order be extended for up to five days, direct that another order be issued, or make a temporary protection order.
As the bill does not make a breach of an order an offence, there is uncertainty as to how a hearing for a failure or refusal to comply with an order might be referred to the District Court. To clarify this we recommend inserting new section 124I(3) to allow the police to make an application to the District Court by way of a complaint.
Where a person cannot be brought before a District Court within 24 hours that person must be released and served with a summons to appear at a later time. Our recommended new section 124IA would provide that if a person served with a summons does not appear at the court at the time and place specified in the summons, he or she may be arrested and brought before the court.
We recommend inserting new section 124IB to distinguish between the jurisdiction of a District Court that is presided over by one or more Justices, by one or more Community Magistrates, or by a District Court Judge. This section clarifies that when the court is not presided over by a District Court Judge and the court is satisfied that a person has failed or refused to comply with an order to the extent that it may be appropriate for a temporary protection order be issued, the court may adjourn proceedings and direct that the order continue in force or that a new order be issued. We consider that the expertise and skill of a District Court Judge is required to determine whether a temporary protection order should be issued.
The bill as introduced does not address how the police should respond to a person who has failed or refused to comply with the order. We recommend inserting new section 124IC to include a provision similar to section 36 of the Bail Act. This would allow the District Court to issue a warrant to allow a constable to arrest a person who had failed or refused to comply with the order, or who failed to attend the court at the time and place the court proceedings had been adjourned to under new section 124IB(1)(c)(i). The constable executing the warrant may enter at any time on to any premises, by force if necessary, if the constable has reasonable grounds to believe that the person against whom it is issued is on those premises.
We recommend inserting new section 124ID to allow the District Court, after it has determined that a temporary protection order is to be issued, to detain the person for a period not exceeding two hours for the purpose of issuing and serving the temporary protection order.
We recommend inserting new section 124IE to provide that immediately after the District Court has issued a temporary protection order the order should be referred to the Family Court nearest to where the protected person resides. This amendment is consistent with new section 123F of the bill as introduced, which relates to protection orders issued at the time an offender is sentenced in the criminal courts for a domestic violence offence.
For consistency with new section 123F of the bill as introduced we also recommend inserting new sections 124IE and 124IF to provide that once a temporary protection order issued by the District Court has been received by the Family Court, this order should be entered into the records of the Family Court and then treated as if it were an order made by the Family Court.
Amendments to the Sentencing Act
Part 2 of the bill as introduced amends the Sentencing Act to enable the criminal courts when sentencing an offender convicted of an offence involving domestic violence to issue a protection order if the court is satisfied that the order is necessary for the victim’s protection and the victim does not object to the order being made.
Protection orders
As introduced, new section 123B(1)(c) provides that a court may not make a protection order against an offender if the victim of the offence has made an application for a protection order and that application is awaiting determination in a Family Court or District Court.
We recommend deleting new section 123B(1)(c) and inserting new section 123B(4) to provide that the courts may issue a protection order against an offender in such cases. We also recommend inserting new section 123B(5) to provide that the proceedings in the Family Court or District Court for a protection order would then end. We consider that a sentencing court should not be precluded from making a protection order if it considers that the protection order is necessary for the protection of the victim of the offence.
Explanation of protection orders
As introduced, new section 123D requires that after the issue of a protection order the Judge or Registrar must explain to the offender the effect of the order and the consequences of failing to comply with the order. We recommend amending new section 123D to require that the Judge or Registrar also explain to the offender the effect of a court’s direction to attend a stopping violence programme and the consequences of failing to attend any session of a programme. We consider that this amendment would help offenders to understand the importance of attending stopping violence programmes.
Consent for the protection order
We considered whether the requirement for the victim to not object to the making of the protection order, new section 123B(2)(b), should be removed. We concluded that it is important for victims to be involved in the process for issuing protection orders and do not recommend removing new section 123B(2)(b).
Amendments to the Bail Act
Part 3 of the bill as introduced would amend the Bail Act to allow the police, when considering whether to grant bail to a person who has been charged with a domestic violence offence, to impose any conditions considered reasonably necessary to protect any child who is in a domestic relationship with that person.
To ensure that other family members of the victim of the alleged offence, such as new partners or elderly parents, would be protected, we recommend amending clause 11 to allow the police to impose any conditions considered reasonably necessary to protect any particular person who lives with the victim.
New Zealand Labour view
We note that the Domestic Violence Reform Bill (introduced by the previous Labour government, and on the Order Paper), in addition to Police safety orders, includes a number of amendments which provide a more comprehensive and enhanced approach to addressing domestic violence and providing better protection for domestic violence victims.
These include increasing the age at which protection orders applied to minors from under 17 years to under 18 years of age, empowering the Court to make interim orders to protect the welfare of the child in cases where an applicant with a child applies for a protection order, requiring the judge considering a “without notice” application for a protection order to provide written reasons (if it is not granted), providing for applicants to attend information sessions on protection orders and advice on social assistance, providing the power to direct attendance at an addiction treatment programme, and amending the Care of Children Act 2004 to include psychological abuse.
The Domestic Violence Reform Bill was the culmination of extensive community consultation over a considerable time-frame and the views of the public were included in the bill. Indeed many submitters argued that the amendments should be incorporated in the Domestic Violence (Enhancing Safety) Bill.
Regrettably the amendments fall outside the narrow scope of the Domestic Violence (Enhancing Safety) Bill. Whilst Police safety orders address one aspect of domestic violence, victims of domestic violence have been denied protection by the limited scope of this bill.
Progression of the Domestic Violence Reform Bill would have addressed many of the concerns raised by victims rights organisations, Women’s Refuges and the community, and would have provided greater protection and enhanced services for victims of crime.
We urge the Government to progress without delay the amendments as outlined in the Domestic Violence Reform Bill. Despite an assurance from the Minister of Justice that new legislation would be before the House in June we note that this is yet to happen.
Appendix
Committee process
The Domestic Violence (Enhancing Safety) Bill was referred to us on 16 December 2008. The closing date for submissions was 27 February 2009. We received and considered 66 submissions from interested groups and individuals. We heard 22 submissions.
We received advice from the Ministry of Justice and the New Zealand Police. The Regulations Review Committee reported to us on clause 2.
Committee membership
Chester Borrows (Chairperson)
Jacinda Ardern
Kanwaljit Singh Bakshi
Simon Bridges
Dr Kennedy Graham
Hon Nathan Guy (from 24 June 2009)
Hon David Parker
Lynne Pillay
Paul Quinn
Dr Richard Worth (until 16 June 2009)