Queensland’s government announced, with some fanfare, its great delight at passing another series of law reforms in the areas of domestic and family violence.

This, they say, is another step towards its commitment to help “make Queensland safer”.

Of course, nobody in their right mind believes that actual violence against women is acceptable, and most agree that appropriate and effective legal frameworks should be in place in that area.

The question is, however, how far are we as a society prepared to erode well-established principles that have underpinned our legal system for centuries in order to achieve that goal?

A Note on Language

The Government announcement itself is inflammatory.

Gone is the language of “accuser” and “accused”. Instead we now have “victim-survivors” and “perpetrators”.

It seems the Government who is supposed to uphold foundation principles like the presumption of innocence chooses to take little care to do so when it comes to a press release.

This is why they say that the new changes are about “protecting victims immediately without the trauma of seeking domestic violence orders through court”.

So just to be clear: the Government has enabled a process whereby a “victim” and a “perpetrator” are now determined without the intervention of a Court.

And with that, another blow to the head is struck when it comes to the presumption of innocence in Queensland. Let’s take a look at just one area of reform that has been announced.

Police Protection Directions – Administrative Decisions Exercising Judicial Powers

In the ordinary course, an individual who seeks protection from another does so through an application to Court. Unless the respondent to that application consents to the order, the Court then weighs the evidence to determine whether such an order should be made and, if so, on what terms it should be made.

In some circumstances, the Domestic and Family Violence Prevention Act does allow Police to issue a Police Protection Notice, providing immediate but short term protection for someone who claims to have experienced domestic violence.

That Notice, however, must be considered by a Court within 14 business days and then either dismissed or turned into a Domestic Violence Order or contested by way of a hearing.

This law reform introduces a new system, designed to supplement (rather than replace) the current system.

Under this new regime, the Police can issue a 12 month Police Protection Direction (as opposed to a Notice), and no further consideration by a Court is required. While there is a path by which an accused can seek to review the decision to issue the notice, that is not the typical order in which the justice system works.

In effect, the government has just put in place a system which allows the Police to decide matters that previously were reserved for a Court.

When Can Police Issue a PPD?

You would think that in order to make a decision which might either save a person’s life or potentially ruin another person’s life there would be a strict set of guidelines about appropriate circumstances in which to do such a thing.

And you’d be wrong.

In fact, the fundamental tests the Police are supposed to apply are so vague that they are essentially meaningless. The Police in question must “reasonably believe”:

1. the respondent has committed domestic violence;
2. a Direction is “necessary or desirable” to protect the complainant from domestic violence; and
3. it would not be more appropriate to seek a protection order .

There are a litany of other factors the Police are required to consider as part of deciding to issue a PPD, however the core requirements are summarised above.

But this leads to another concern.

Police Aren’t Judges

Just reading through the new laws, they read very similarly to legislation we see that typically informing judicial decisions.

For example, there is:

1. the fundamentals of when a PPD can be issued (those above);
2. lists of circumstances that the issuing officer (or their supervisors in some cases) must take into account;
3. occasions on which a PPD should not be issued.

In all, there are dozens of pages of requirements, rules, considerations, exceptions and guidelines that the Police will have to master in order to make these kinds of decisions.

No doubt the Police will have to implement training and specialised units to tackle this complexity. Given that the point of the Direction system is to offer a fast outcome, it’s difficult to see how the many relevant factors and considerations can be contemplated in a timely manner by a single Police officer.

It is, however, eery and concerning to read these variables and discretions in the context of Police decision making, rather than in the context of Court decision making or even Government (administrative) decision making.

The Underlying Ideology of Concern

The criminal law system has its flaws, but for many centuries has been founded on the same basic principles.

Those basic principles are being eroded at a steady rate as Governments attempt to get a handle on complex issues like domestic violence.

These new powers being given to Police are concerning, because they are based on an underlying ideology that:

1. seeks to avoid decision making by a Court;
2. instead just places Police in the shoes of a Judge; and
3. decides guilt without Court involvement.

Now you might think that in an area like domestic violence these measures are completely reasonable and required.

But what if the powers are extended to other areas, as the Government of the day decides to start tackling different types of crime? After all, they might say, if it worked for X why can it not also work for Y. What if all matters previously handled in the Magistrates Court simply get relegated to the Police instead adopting a similar system as we see here.

It doesn’t take too many steps from laws like these before we have left behind a flawed but functional judicial system and instead found ourselves in Judge Dredd.

So take care if you are celebrating these reforms, because you might not like the path that we’re heading down in a few years from now.