Northern Territory Second Reading Speeches

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DIRECTOR OF PUBLIC PROSECUTIONS AMENDMENT BILL 1999

Mr Speaker, I move that the bills be now read a second time.

These bills will help give the victims of domestic violence a fighting chance against offenders in a system that is still heavily loaded against them despite good policy, good intentions and good work from many quarters. Other measures and other resources must be deployed as well if some victims of domestic violence are not to feel cruelly hoaxed by all the policy glossies, and the ‘It’s got to stop’ ads when it comes to action to protect and help them.

The intent of the Northern Territory domestic violence strategy is clear and unequivocal and the government is to be congratulated upon it. However, we must not blind ourselves to the fact that it is not strategies alone that assist victims of crime, but appropriate implementation of those strategies. Of course, appropriate legislation is only one aspect of combating domestic violence, there are many others. They include the provisions of vital resources such as a domestic violence crisis intervention service, adequate numbers of general police officers, ongoing education, changes to general police orders and so on. The Chief Minister has finally caught up with this debate and promised in this House yesterday that there would be a review into the domestic violence policy and that that would commence early next year. However, there is a serious problem that needs fixing sooner rather than later and that is the fact that victims of domestic violence continue to face serious disadvantage because the response of the criminal justice system is inadequate and, more than that, in direct conflict with the Northern Territory’s domestic violence strategy.

In a recent paper by the Australian Institute of Criminology, ‘Femicide: an Overview of Major Findings’, it is stated: ‘Nearly 3 in 5 of all femicides, defined here as the killing of women aged 15 years and over, occur between intimate partners and nearly all of these as a result of a domestic altercation’. The statistics on repeat offences is worthy of mention too. In recent studies in the UK which have similar patterns elsewhere, it was indicated that about 4% of surveyed victims suffered approximately 44% of the offences. In one locality other research found that 43% of domestic violence incidents occurring over a 25 month period involved only about 7% of 1459 households. In other words, the police were called time and time again to the same households on domestic violence matters.

The Northern Territory has the highest murder rate in Australia. It is almost 4 times that of Queensland which has the next highest murder rate. In 52% of all murder cases the victim was a family member of the offender. While some of these murders was a result of a single violent incident, in many other cases clearly a pattern and history of domestic violence is evident.

Early intervention is critical if we are to prevent the serious injury even death of victims of domestic violence.

Perpetrators of domestic violence are generally manipulative and controlling of their victims and victims are often in terror of their abusing partner who also seeks to isolate the victims from any possible support. To have to initiate and pursue a case against such a person can be an insurmountable hurdle to a victim of domestic violence. As a result many victims either put up with violent abusive behaviour or call for help only as a last resort in order to stop the abuse for the time being.

The Northern Territory domestic violence strategy states and I quote:

Well of course, the domestic violence legislation itself says nothing of the sort, yet surprisingly, according to the annual status report on the domestic violence strategy April 1996-97 prepared by the Office of Women’s Affairs, that particularly policy objective was, and I quote: ‘achieved’. It tells us at page 72:

Northern Territory police have introduced a no-drop prosecution policy which instructs police that all charges arising out of domestic violence family circumstances are to be proceeded with, notwithstanding the subsequent wishes of the victim to withdraw.

Now this is just not happening uniformly and victims of domestic violence continue to tell horror stories about the fact that their wishes have been ignored in some of the issues to do with domestic violence. Indeed, their cases are very strongly supported by the Domestic Violence Legal Help Service who have brought forth a paper on criminal justice, response to domestic violence entitled The Myth Continues, a discussion paper that they brought forward in August 1999, having first written the critique of the domestic violence policy. This paper makes a plea for urgent action to change things. It makes a plea to look again at the domestic violence policy. The policy there is no problem with, the enactment is another thing. This is just one step along the way in making changes that will assist victims of domestic violence and in some terms come to meet the requirements of the domestic violence policy. After all, we are talking here about government policy and it is government policy that I’m supporting in this House today and wishing to strengthen by the enactment of this legislation.

Turning to the issue that is dealt with in the Domestic Violence Act, restraining orders, it is clear that he intent of the domestic violence policy is that police should assist the victim by taking out urgent section 4 or section 6 restraining orders and this can and should be done by general duties police, as well as any specialist police or the Domestic Violence Legal Help or the victim him or herself. I return to the important point that victims by definition face intimidation and are often pressured by the perpetrators not to apply for a restraining order. So it is important that the police take on this important responsibility so that the victim themself does not feel pressured to either proceed with the case despite intimidation perhaps by their harasser or argument from other family members and so forth.

It is important that once police are called to an incident the matter proceeds whether or not the victim wishes that matter to proceed, whether or not they are saying they are not going to press charges, it is important that the police proceed. In remote locations, no specialist police are available and the function has to be carried out by special general duties police officers. So there are no specialist police to help people in that situation. In many cases throughout the Northern Territory, the duty of obtaining restraining orders is carried out by general duties police and that is what is helped and enshrined in this legislation. Once a restraining order has been issued, follow through is crucial. The domestic violence policy makes it plain that domestic violence is a crime, it is not a civil matter.

The police and the Office of the Director of Public Prosecutions have carriage of criminal matters from start to finish. That principle needs to be followed by the practice that a restraining order once taken out by police will be pursued through the entire process. This includes the involvement of Summary Prosecutions. Anecdotal evidence suggests that involvement of Summary Prosecutions in restraining order matters is patchy and inconsistent. This problem has arisen partly as a result of transfer of responsibility of summary prosecutions from the police prosecutions section to the Office of the DPP, and the accompanying memorandum of understanding between police and the Director of Public Prosecutions.

The problem highlighted in the Director of Public Prosecutions’ letter dated 14 January 1999, to the domestic violence legal help service, in which he states that he does not have express power to become involved in applications for restraining orders, will be rectified by adoption of the bill before us today.

Turning now to the detail of the bill, the Domestic Violence Bill first, the bill creates a category of offences, domestic violence offences, that include (a) offences against the Criminal Code that are perpetrated upon a person in a domestic relationship with another person, and (b) breaches of restraining orders against such a person.

If a victim calls the police and they attend at the residence, they must arrest a person they reasonably believe may have committed a domestic violence offence, and collect evidence. If a victim calls the police and the police attend at a house or place, they must apply for a restraining order if they believe there is sufficient evidence. In order to obtain a restraining order, (a) there must be evidence of assault to a person or property or of offensive and provocative behaviour or harassment that could lead to a breach of the peace; (b) there has to be established that there is likelihood that that offence being committed again by the offender.

In the case for issue of restraining orders, this only has to be proved on the balance of probabilities. That is, it is more likely than not that the circumstances are made out. This differs from, and is easier to prove, than an offence beyond reasonable doubt. If the offender has departed, the police must apply for a warrant for his/her arrest.

To summarise, the police officer may have to arrest or apply for a restraining order, or both. If they can arrest but not get a restraining order - for example, they can prove past offences but not intention to commit one in the future - they may hold the person as long as the Police Administration Act permits, to gather evidence and charge them with a domestic violence offence. If they can’t arrest but can get a restraining order, they can get one by phoning a magistrate from the house or, if it occurs during the court’s opening hours, they can take the person to the court and have the order made. The person can’t be held for more than 4 hours. If they can arrest and can get a restraining order they can take the offender to the police station to make the application for the restraining order and to question and charge for as long as they normally keep suspects under the Police Administration Act. The offender can be released on a bond and must put conditions on the bail that are protective of the victim and enables her or him to stay where they live.

If both an offence and a restraining order circumstance apply, the police must not release the person from custody until there is a restraining order in force or bail conditions in place. If the police member attending and investigating a possible commission of a domestic violence offence does not either arrest the perpetrator, charge the perpetrator or does not apply for a restraining order, the member must keep a record of the reasons for not doing so.

A member of the police force may not determine that there is insufficient evidence for a court to find a person guilty of a domestic violence offence or for a clerk to make a restraining order because the victim is unwilling to give evidence against the person, unless the member has first considered all other evidence available in relation to the matter.

Applications for restraining orders must be made in the police officer’s name unless the application went direct to the court or to the Domestic Violence Legal Help Service. Once made in the officer’s name, they will have conduct of variation in revocation, but Prosecutions in this instance can then assist them.

Turning to the amendment to the Director of Public Prosecutions Bill, a new section is simply added which states that it is the function of the Director of Public Prosecutions to conduct and take over proceedings for applications for restraining orders and for any offence against the Domestic Violence Act.

Mr Speaker, in framing this legislation I would like to thank the Domestic Violence Legal Help Service and particularly their solicitor, Julie France, for her assistance and feedback on this important matter and for other agencies in advising me of the situation and circumstances that they face. Other agencies down the track such as the Alice Springs Shelter and such as Bradag in Tennant Creek and others in Darwin. I’d also like to thank the police association representative, Max Hill, for casting his eye over this and providing feedback on the concerns that the police undoubtedly have about this particular piece of draft legislation.

The Chief Minister has finally caught up with this debate and I’m glad that there is a consultant undertaking a review of the legislation. But as I said at the outset in this second reading speech, it’s very important that the framework for ensuring that restraining orders and in fact arrests, bails and charging and bailing of offenders against domestic violence are made clear in the legislation so that police have a clear instruction about their duty in this regard and that the agencies who deal with these matters understand that they also have the force of law behind them in these particular cases. Because the policy is very, very good and the policy suggests that police do in fact have entrain a ‘no drop’ policy. It’s not there though, it’s not there in enactment, it’s not there in fact and this legislation is just but one small step along the way to ensure that at least a part of that policy is enshrined in law.

It ensures that in the future these matters are beyond doubt and beyond question, it provides protection to the victim and assurance of their duty to the Police Force and, of course, then all of the other issues that need to be followed on will have to follow. There is no doubt that other issues need to accompany this piece of legislation. We need to ensure that police general orders are consistent with these pieces of legislation; there has to be adequate resourcing of the Police Force to ensure that they can carry out these duties adequately. There has to be the facilities for domestic violence victims as the Police Association representative advised me, things like conciliation and accommodation are other issues that need to be examined in this way.

This is a private members bill. It could sit on the table for some time and there is ample opportunity for the government and for members of the public and interested parties to have a look at it and to decide what they think about it and what arguments need to be brought for or against it. I bring it in in the hope that the government will look at it seriously because it is a very serious matter. The Chief Minister has acknowledged that himself and I believe that at the end of the day whether the government takes on this piece of legislation or not there will have to be legislation brought in to strengthen the domestic violence policy if we are to make sure that that policy has real legs.

Debate adjourned


 

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