Family violence reform, or eroding basic rights?

Start with the language

The announcement itself is worth reading carefully, because the vocabulary gives the game away.

Gone are "accuser" and "accused". In their place are "victim-survivor" and "perpetrator".

A government charged with upholding the presumption of innocence has adopted, in its own material, terminology that assumes the conclusion. The stated purpose is protecting victims immediately without the trauma of seeking domestic violence orders through court.

Read that sentence for what it actually describes. A process in which who is a victim and who is a perpetrator is now determined without a court being involved.

Words in a press release are not law. But they describe the frame the drafters were working inside, and the scheme they produced does exactly what the words suggest.

An administrative body exercising judicial power

Ordinarily, a person seeking protection from another applies to a court. If the respondent does not consent, the court weighs the evidence and decides whether an order should be made and on what terms. That is what courts are for.

The Domestic and Family Violence Protection Act already allowed police to act quickly. A police protection notice provides immediate short term protection where someone claims to have experienced domestic violence. Crucially, that notice must go before a court within 14 business days, where it is dismissed, converted into a domestic violence order, or contested at a hearing.

The new regime supplements rather than replaces that. Police can now issue a twelve month police protection direction, and no consideration by a court is required at all. There is a review pathway, but review comes after the decision has already taken effect, which inverts the usual sequence.

Reduced to its essentials, the state has created a system in which police decide something that used to be reserved for a court.

The tests are close to meaningless

You would expect a decision capable of saving one person’s life and upending another’s to be governed by tight criteria.

It is not. The core requirements are that the officer reasonably believes:

• the respondent has committed domestic violence;
• a direction is necessary or desirable to protect the aggrieved from domestic violence; and
• it would not be more appropriate to apply to a court for a protection order.

"Necessary or desirable" is doing an enormous amount of work in that middle limb. Necessary is a real standard. Desirable is barely a standard at all, and the two are joined by "or", so the lower one governs.

There is a long list of other factors an officer must take into account, and a list of circumstances in section 100C where a direction must not be issued. Those constraints are real and they matter. They do not change the fact that the threshold question is framed at a level of generality that will rarely stop anything.

Police are not judges, and the legislation forgets it

Read the provisions on their own and they look like legislation written to guide judicial decision making. There is a threshold test, a list of mandatory considerations, and a list of circumstances in which the power must not be exercised.

In total there are dozens of pages of requirements, rules, considerations, exceptions and guidelines that officers must master to make these decisions properly.

Two things follow. First, police will need training and dedicated units to handle the complexity, which is a cost nobody mentioned when the reform was announced. Second, and more awkwardly, the entire point of a direction is speed. It is difficult to see how a single officer, at a residence, late at night, works through that many variables and discretions in a timely way.

Reading discretionary criteria of that kind is unremarkable in the context of a court. It is unsettling in the context of an officer standing in a hallway with two upset people and a body worn camera.

The ideology underneath

Criminal law has flaws and always has. It has also rested on the same basic propositions for centuries, and those propositions are being eroded steadily as governments try to get a grip on genuinely difficult problems.

What makes this particular power concerning is not its scope. It is the reasoning behind it, which is that a decision of this kind:

• is better made without a court;
• can be made by police standing in a judge’s shoes; and
• can determine, in substance, who did what, without a hearing.

You may well think that in the domestic violence context those trade-offs are worth it. That is a defensible position and plenty of thoughtful people hold it.

The question is what happens when the same reasoning is applied elsewhere. If it worked for domestic violence, why not for public order offences, or property offences, or anything else currently clogging a Magistrates Court list? The argument that a court hearing is a delay to be engineered around does not contain its own stopping point.

It is not many steps from here to a system in which a functional, flawed judiciary has been replaced by administrative decision making with a review form attached.

What this is not saying

None of this argues that domestic violence is overstated, or that people at risk should wait for a court date before anything happens. They should not, and the existing police protection notice already ensured they did not have to.

The narrow objection is to the removal of the court from the sequence altogether. A notice that must be tested by a magistrate within 14 business days provides immediate protection and preserves the principle. A twelve month direction that never reaches a court unless the respondent takes steps does the first thing and abandons the second.

That was a choice, not a necessity. It is worth being clear eyed about what it cost.

If you are dealing with a direction rather than debating one, our practical guide is at the reforms from a respondent’s side, and the mechanics are set out on our police protection directions page.