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Cabinet paper - DVA review

Cabinet paper - DVA review (Adobe Acrobat v5 25KB)

OFFICE OF THE MINISTER OF JUSTICE

Chair

Cabinet Social Development Committee

DOMESTIC VIOLENCE – A REVIEW OF THE DOMESTIC VIOLENCE ACT 1995 AND RELATED LEGISLATION – A DISCUSSION DOCUMENT FOR PUBLIC RELEASE

Proposal

  1. This paper seeks your agreement to release to the public the attached discussion document entitled Domestic Violence - A Review of the Domestic Violence Act 1995 and Related Legislation.

Executive Summary

  1. The Ministry of Justice has carried out an issues-based review of the Domestic Violence Act 1995. A first principles review was not considered necessary as an evaluation of the implementation of the Act in 2000 found the approach of the legislation was well supported. This view has also been endorsed by the very recent research report[1] – Living at the Cutting Edge: Women’s Experiences of Protection Orders (the research report).
  1. The Ministry of Justice had consulted key stakeholders to identify proposals that would strengthen the effectiveness of the Domestic Violence Act 1995. Proposals raised during the consultations that were not consistent with the general policy underpinning the Act and its objects have not been included in the discussion document.
  1. In May this year, the Family Violence Ministerial Team requested that the scope of the discussion document be broadened to include the legislative proposals in the above research report. The research recommended amendments to the Domestic Violence Act 1995, the Care of Children Act 2004, and the Family Proceedings Act 1980. The Ministerial Team also asked, amongst other things, that preliminary proposals to each issue be included. A few preliminary proposals suggest no change to current legislative provisions. The discussion document also sets out relevant immigration policies.
  1. Because of the intense public interest in domestic violence matters it will be helpful to obtain public feedback on these preliminary proposals before undertaking further policy development work on any amendment of the legislative regime.
  1. I am seeking Cabinet’s approval for the process and timeframe associated with releasing the discussion document to the public in early December.

Background

  1. The Domestic Violence Act 1995 (the Act) came into force in 1996. It put in place a new legal framework aimed at providing greater protection from domestic violence, and replaced the earlier Domestic Protection Act 1982. The Act provides a civil regime for the making of domestic protection orders for victims of domestic violence. The Act contributes towards the following Justice Sector outcomes:
  • Reduced crime
  • Reduced impact of crime
  • Offenders held to account
  • Trusted justice system
  1. Since the Act came into force the Ministry of Justice has kept a record of issues raised by the Judiciary, the legal profession, and other interested parties about how the legislative provisions are working in practice.
  1. A suite of reports including the Domestic Violence Act 1995 Process Evaluation of August 2000 concluded that, while there were implementation issues, the legislation is well accepted and supported and did not need a major overhaul. In 2005, the Ministry decided to undertake an "issues-based" review of the Act - as opposed to a first principles review - to determine if any amendments were required to improve the effectiveness of the legislation.
  1. An important part of the work associated with the issues based review is the attached discussion document. It includes the key issues raised by stakeholders during earlier consultation, and by the recommendations for legislative change outlined in the research report – Living at the Cutting Edge: Women’s Experiences of Protection Orders.
  1. I wish to seek public feedback on the preliminary proposals for amending the legislative regime. Because of the public interest in the family violence area, and the polarised views that exist in the community, it is important to seek public input before further policy development is undertaken to determine what amendments might be desirable.

Comment

  1. A range of representative stakeholders were approached in 2005/06 for their views about the effectiveness of the Domestic Violence Act 1995. The stakeholders consulted included relevant government agencies, the Family Court Judiciary, the NZ Law Society, and NGOs who deal with family violence issues. The then Associate Minister of Justice, the Hon Marian Hobbs directed that the Union of Fathers be included in the consultation, so that all viewpoints were canvassed. As a result of the consultation, a range of proposals for reform were received.
  1. At an earlier time this year, when the Ministry of Justice completed a draft of the discussion document, it was intended that it should put forward all the proposals for change regardless of their nature without providing any indication of the views of government. However, subsequently, the Family Violence Ministerial Team requested that the discussion document:
  • be delayed to include any legislative recommendations from the Waikato University research report – Living at the Cutting Edge: Women’s Experiences of Protection Orders. This request broaden the scope of the discussion document to include preliminary proposals to amend the Care of Children Act 2004 and the Family Proceedings Act 1980, and a discussion on relevant immigration policies
  • not include proposals that are inconsistent with the general policy underpinning the Act and its object to reduce and prevent violence in domestic relationships by recognising that domestic violence, in all its forms, is unacceptable behaviour
  • to provide preliminary proposals for each issue raised
  • to highlight the gendered nature of domestic violence
  1. The attached discussion document is consistent with the request from the Family Violence Ministerial Team.

The Discussion Document

  1. The draft discussion document includes the most significant of the proposals received from stakeholders that were consistent with the current policy underpinning the Act and its objects. It also includes all the recommendations for legislative change in the research report.
  1. The intention is to invite wider public input before considering amendments to the current legislative regime. The discussion document will serve three functions. It will:
  • Better inform stakeholders about the specific proposals
  • Inform the public about the relevant provisions and objects of the Act as well as provide other information about domestic violence in a balanced way, and
  • Invite feedback from the wider public on the preliminary proposals. This feedback will inform further policy development. This is important given the polarised views in the community about domestic violence. We may get some genuine consensus about the continued need for, and importance of, a framework which gives victims of domestic violence access to legal protection.
  1. The discussion document includes the following:

Overview –

This sets out the purpose of the review, some background about domestic violence in New Zealand, the work that the government has undertaken to address domestic violence, the scope of the review, and how to have a say.

Part One –

The Domestic Violence Act 1995. This provides the background to the Domestic Violence Act, and its main features. It discusses the changing responses to domestic violence, and the issues we are consulting on.

Issues Relating to the Domestic Violence Act. This section discusses the issues relating to:

  • Protection orders
  • Enforcement of protection orders
  • Links between the Family Court and the District Court
  • Children
  • Programmes

Part Two –

The interface between the Domestic Violence Act and the Care of Children Act and the Family Proceedings Act. This part discusses:

Interface with the Care of Children Act 2004

  • the definition of violence in the Domestic Violence Act and in the Care of Children Act
  • no consent orders to be made unless the Court has obtained a specialist report
  • relocation as a matter to be considered in determining what serves the child’s welfare and best interests;
  • no unsupervised contact with a party who has used violence until the Court has considered a report from a psychologist;
  • the age of a minor

Interface with the Family Proceedings Act 1980

  • directions to mediation.

Key Proposals and Costs

  1. One of the most important proposals discussed in the discussion document that will strengthen the current regime is the proposal to enable the Police to issue short term protection orders when they are dealing with a domestic violence incident. This process will be in addition to Court-based protection orders. Experience in Australia demonstrates that enabling the Police to issue orders increases the number of protection orders issued. Evaluations of the most recent initiatives will be released very soon from Tasmania (March 2008) and Western Australia (December 2007). These evaluations will assist us in estimating the possible increase.
  1. If this proposal proceeds the Police will need extra resources and training. The impact of any increase in the numbers of protection orders being issued will also be felt by Courts and the Legal Services Agency.
  1. Most of the other proposals will also incur additional costs across the whole justice sector, including Police, Courts, the Legal Services Agency and Corrections. Examples are:
  • An extra hearing if a without notice application is declined
  • Changing the criteria for arrest for breaches of protection orders
  • A hearing to consider contact issues (say) two weeks after a temporary order has been issued
  • Extending children’s right to have a lawyer to represent them, and
  • The various extended opportunities for respondents and protected persons to attend programmes
  1. Information about the costs will be provided in future Cabinet papers.

Communication and Risk Mitigation Strategy

  1. There are some risks in not releasing this discussion document to the public in the near future. There is stakeholder anticipation of the discussion document as a result of the initial consultation with stakeholders on the Domestic Violence Act.
  1. There are also some concerns associated with the release of the discussion document which need to be managed. Firstly, it may raise stakeholder expectation about what may be included in any future amendment to the legislation. To mitigate this concern the document highlights that the proposals are only government’s preferred preliminary proposals at this stage, and they are very likely to change as a result of consultation via the discussion document.
  1. Secondly, some stakeholders may feel the review is too limited in its scope and that a first principles review should have been undertaken. The document makes clear, however, that the evaluation of the implementation of the legislation found there was broad acceptance of the general approach of the legislation and that it was well supported. This view has been further endorsed by the recently released research report by the University of Waikato.
  1. Finally, some stakeholders will expect to see their suggestions included in the discussion document. However, in response to the Family Violence Ministerial Team’s direction outlined in paragraph 13, they have not been included because they were not consistent with the general policy underpinning the Act and its objects. These stakeholders will be disappointed.
  1. A media statement will be issued at the time the document is released to ensure the information about the purpose and scope of the document is conveyed to the public. This will assist people who wish to engage in the consultation process.

Next Steps

  1. If Cabinet’s approval is obtained, the Ministry of Justice intends to make the attached discussion document widely available by publishing the discussion document on its website and providing hard copies to stakeholders and interested members of the public. The Ministry will also call for submissions through advertisements in major newspapers.
  1. I propose to allow seven weeks for submissions. If the discussion document is approved, it can be released by 10 December 2007, it would seek submissions by 28 January 2008.
  1. It is intended that Cabinet decisions for amendments to the Domestic Violence Act and related legislation will be sought in April 2008.

Minor Technical and Editing Amendments

  1. Following Cabinet approval to release the attached draft discussion document, I seek authorisation to make minor technical or editing amendments to the draft discussion document prior to publication to ensure clarity and consistency, and to correct any typographical or grammatical errors.

Consultation

  1. The agencies consulted during the development of the discussion document include: NZ Police, Department of Corrections, Ministries of Social Development, Women’s Affairs, Pacific Island Affairs, Te Puni Kōkiri, the Department of Labour, and the Family Court Judiciary. The Department of the Prime Minister & Cabinet was also informed.
  1. The following agencies have been consulted on this paper: NZ Police, Department of Corrections, Ministries of Social Development, Women’s Affairs, Te Puni Kōkiri, and Pacific Island Affairs, the Treasury, the Department of Labour, the Office of Ethnic Affairs, the Office for Disability Issues, the Office for Senior Citizens, the Families Commission, and the Children’s Commissioner. The Department of the Prime Minister and Cabinet was informed.

Financial Implications

  1. The release of the attached discussion document does not have any financial implications.

Human Rights Implications

  1. The recommendations in this paper are not inconsistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

Legislative Implications

  1. There are no legislative implications at this stage. A request for a Domestic Violence Amendment Bill to be included in the 2008 legislative programme will be made to progress any proposals arising from the consultation and policy development process.

Regulatory Impact and Business Compliance Cost Statement

  1. A Regulatory Impact and Compliance Cost Statement is not required.

Gender implications

  1. The issues based review recognises that while the Act is an effective legislative framework for addressing domestic violence, its effectiveness could be improved. The New Zealand National Survey of Crime Victims 2001[2] found that women are significantly more likely than men to experience heterosexual partner violence in their lifetime. Protection orders are a means for victims to seek protection; women make up the majority of applicants. Any changes to the legislative regime will have particular significance for women. Any future policy proposals to amend the Act will be analysed for gender implications. However, no specific gender analysis is required for this paper as it does not contain any policy proposals.

Disability perspective

  1. Disabled people like others need the protection of the Act. There is strong evidence internationally that show disabled people are more likely (some statistics indicate 2-10 times as likely) to be subjected to abuse and violence and find it difficult to escape. The Ministry of Justice intends to consult directly with disabled people and their families to make sure they have the opportunity to make sure they have the opportunity to provide comment.

Publicity

  1. I will issue a press release inviting the public to make submissions.

Recommendations

  1. I recommend that the Committee:
  1. Note that as part of an issues based review the Ministry of Justice invited key stakeholders in 2005/2006 to comment on any areas of the Domestic Violence Act 1995 that required amendment to improve its effectiveness
  1. Note that an early draft of the discussion document was completed in May, however, that document was not tabled for Cabinet’s approval because of the pending research from Waikato University (Living at the Cutting Edge: Women’s Experiences of Protection Orders)
  1. Note that the Family Violence Ministerial Team requested that the discussion document should
  • include the legislative recommendations from the research report
  • highlight the gendered nature of domestic violence
  • discuss only those proposals that were consistent with the general policy of the Act and its objects, and
  • contain preliminary proposals
  1. Note that the attached discussion document sets out the significant proposals received from stakeholders consistent with the general policy underpinning the Act and its objects, and the recommendations from the above research report
  1. Note that the purpose of the discussion document is to obtain public feedback on the preliminary proposals before policy proposals are developed
  1. Note that the proposals are preliminary only, and that it is expected that submissions on the discussion document will change some of these proposals
  1. Note that a number of the preliminary proposals if they were to proceed would incur costs across the Justice sector
  1. Authorise the Minister of Justice to make minor technical and editing amendments to the discussion document prior to publication as required
  1. Agree that the Ministry of Justice makes the discussion document available to, and seeks submissions from, the public either by direct correspondence, through the Ministry of Justice website or by an advertisement in major newspapers
  1. Agree that the Minister of Justice issue a press statement when the discussion document is released to the public
  1. Note that the Minister of Justice proposes to submit further papers to the Cabinet Social Development Committee in April 2008 with proposals for amendment of the Domestic Violence Act and related legislation if required .

Hon Annette King
Minister of Justice

Date    /     /

Footnotes

1 A report prepared by Neville Robertson, Ruth Busch, Radha D’Souza, Fiona Lam Sheung, Reynu Anand, Roma Balzar, Ariana Simpson and Dulcie Paina of the University of Waikato (School of Law and the Māori and Psychology Research Unit) for the Ministry of Women’s Affairs.

2 Allison Morris et. al. (2003). New Zealand National Survey of Crime Victims 2001. Ministry of Justice, Wellington

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