Ministry of Justice, New Zealand

Purpose of this review
Background to the review
Preventing domestic violence
The review of the Domestic Violence Act 1995 and related legislation
Previous reviews of the Domestic Violence Act 1995
Scope of the review
Matters excluded from the current review
Consultation – how to have your say
Official Information Act and Privacy Act requirements

Purpose of this review

The Domestic Violence Act 1995 (the Act) enables victims of domestic violence to obtain greater legal protection from the perpetrators of that violence. It helps to prevent and reduce domestic violence. Any person who is in a "domestic relationship" including, for example, married, de facto, civil union, gay and lesbian couples, children, family/whānau, and flatmates can seek a protection order if they are enduring physical, sexual or psychological abuse from a person in that relationship. The protection order imposes no-violence and non-contact conditions on the abusive partner. If these are breached then the partner has committed an offence and may be arrested.

The Ministry of Justice administers the Act. It advises the Government about any amendments that may be required to keep the legislation working well. Since enactment, the Ministry of Justice has kept a record of concerns raised by stakeholders about the operation of the Act and its provisions. However, while some concerns have been raised, there is a generally held consensus that the objectives and general framework of the Act are sound.

The Care of Children Act 2004 (also administered by the Ministry of Justice) promotes children’s welfare and best interests; facilitates their development by helping to ensure that appropriate arrangements are in place for their guardianship and care; and recognises certain rights of children. It interfaces with the Domestic Violence Act at several points. Particularly relevant to this review is section 5(e) of the Care of Children Act, which provides that the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whānau, hapū, or iwi, or by other persons).

The Family Proceedings Act 1980 deals with paternity, separation, maintenance, dissolution of marriages (divorce), voiding marriages, and counselling referrals both before and during proceedings. As it is about court procedures it does not impact on the policy of domestic violence per se, but rather it influences the operation of the Family Court.

Another important piece of legislation that also interfaces with the domestic violence legislation is the Immigration Act 1987, administered by the Department of Labour. This Act sets out the framework for determining who may enter and remain in New Zealand on a temporary or permanent basis, and the rights of New Zealand citizens to be in New Zealand. Some immigration policies use the same definition of domestic violence as in the Domestic Violence Act. These policies are concerned with the provision of work permits or permanent residence for some victims of domestic violence, and also with the criteria for determining who can sponsor a partner. Appendix One provides a brief overview of the Immigration Act, and current policy initiatives that interface between the Immigration Act and the Domestic Violence Act.

The purpose of this review of the Domestic Violence Act and those aspects of the Care of Children Act and the Family Proceedings Act that relate to domestic violence is to make our current domestic violence legislative regime more effective by:

• Identifying the provisions of the Domestic Violence Act 1995 that could be strengthened in order to more closely achieve its objects

• Identifying the provisions in the Care of Children Act 2004 and the Family Proceedings Act 1980 relating to domestic violence that could be strengthened in order to more closely achieve the objects of the Domestic Violence Act

• Developing, in light of public consultation, policy proposals for amendment of the Domestic Violence Act 1995, the Care of Children Act 2004 and the Family Proceedings Act 1980 for government consideration.

Background to the review

Domestic violence is defined in the Act to include physical abuse, sexual abuse and psychological abuse.[1] It makes it clear that a person psychologically abuses a child if that person causes the child to witness any of the above abuse. Domestic violence also includes minor or trivial acts where they form part of a pattern of abuse.

Domestic violence impacts on families from all cultures, backgrounds and circumstances. It is a problem that affects thousands of New Zealanders, whether they have direct experience of violence within their family or not. Although it is difficult to measure, the social and economic cost of domestic violence is significant.

New Zealand has a comprehensive set of laws designed to protect women, children and men from violence in the home, yet we continue to have high rates of domestic violence. For example, in the calendar year 2006, NZ Police recorded 38,369 family violence related incidents, and 32,675 family violence related offences, making up a total of 71,044 family violence related occurrences.

In 2005, 29 of the 61 murders were recorded as domestic violence related, while in 2006 16 of the 49 murders were recorded accordingly.[2]

While no part of society is immune from domestic violence, we know that women and children are far more likely to be victims than men. For example, the Ministry of Justice’s Family Court Statistics 2005 report highlighted that 92 per cent of the applicants for protection orders were female (p.40). While the 2001 National Survey of Crime Victims reported that more than one in four women can expect to experience violence from an intimate partner in her lifetime (p.139).

Many children are also affected by domestic violence. In 2005, there were 7,924 children involved in the 4,545 applications for protection orders. Women’s Refuge provided services and programmes to 12,161 children in the year 2005/06. Most of these children will have witnessed violence, and some will have been subjected to violence directly.

These statistics do not show the whole picture of domestic violence in New Zealand. Domestic violence is an under-reported crime. Only a small percentage of victims come to the notice of the justice system. It occurs in private, and within close interpersonal relationships.

Preventing domestic violence

Reducing and preventing domestic / family violence is a priority for New Zealand. Over the years since the Act was passed, a range of initiatives have been launched by government and non-government agencies to assist in reducing violence in all its forms, and violence within families in particular. Recent key initiatives include the following.

Te Rito

In 2002, the Ministry of Social Development published Te Rito: New Zealand Family Violence Prevention Strategy. The strategy included objectives, and areas for action, for working toward the vision of families/whānau living free from violence.

Taskforce for Action on Violence within Families

This taskforce was established in June 2005 to advise the newly formed Family Violence Ministerial Team on how to make improvements to the way family violence is addressed, and how to eliminate family violence in New Zealand. The taskforce builds on the action areas outlined in Te Rito, and aims to strengthen the response to violence within families. The taskforce provides a forum for the government and non-government sectors, the judiciary, the Children’s Commissioner and the Families Commission to set the strategic direction for family violence prevention in New Zealand.

The taskforce's work programme can be viewed on http://www.msd.govt.nz/work-areas/families-whanau/action-family-violence/index.html

The review of the Domestic Violence Act 1995 and related legislation

This discussion document is part of the continuing focus on reducing family violence in New Zealand.

The Act is the core legislation in relation to family violence. Improving its operation is essential to the wider work programme. The Act creates a framework for providing legal protection to victims of domestic violence to assist in preventing further violence. It places importance on the value of education in preventing violence by requiring respondents[3] to protection orders to attend free programmes, and providing for applicants[4] and children to do so as well.

The Care of Children Act 2004 is wider in its scope and purpose. It provides a framework for resolving ongoing care arrangements for children within families, especially when the relationship between the parents breaks down. However, some of its provisions interface with those of the Domestic Violence Act when the child may be at risk of violence. We need to ensure that, in regard to those aspects, the relationship between the two Acts is consistent with, and reinforces, the objectives of the Domestic Violence Act.

Previous reviews of the Domestic Violence Act 1995

Since the enactment of the Domestic Violence Act in 1996 several justice sector agencies have investigated how the new Act was working in practice. This work includes the following reports:

• The Domestic Violence Legislation and Child Access in New Zealand[5]

• The Domestic Violence Act 1995 Process Evaluation[6]

• Women living without violence – An evaluation of programmes for adult protected persons under the Domestic Violence Act 1995[7]

• Evaluation of programmes for children under the Domestic Violence Act 1995[8]

• Evaluation of programmes for Maori adult protected persons under the Domestic Violence Act 1995[9]

• The Domestic Violence Act 1995 42 Day ‘Rules’ and the Children, Young Persons and their Families Act 1989 60 Day ‘Rule’[10]

• Evaluation of community based stopping violence prevention programmes[11]

• The University of Waikato’s report entitled Living at the Cutting Edge: Women’s Experiences of Protection Orders[12]

Some of these reports are available on the Ministry of Justice website. Of these reports, the research that comprehensively examined the entire process of implementing all aspects of the Act was the Ministry of Justice’s process evaluation (2000). The process evaluation concluded that the new legislation was an improvement on the previous law, especially in its focus on programmes designed to change respondents’ behaviour and its emphasis on the safety of protected persons. The key message from the evaluation was that the Act is sound in achieving its objectives. Nothing in the research suggested a need for a major overhaul.

The evaluation found that the broadened definitions of both a ‘domestic relationship’ and ‘domestic violence’ were useful. It noted that many of the respondents and adult protected persons interviewed who had attended programmes were very positive about the experience. The speed with which a protection order could be put in place and the simplified application process both received positive comment in the evaluation feedback.

The process evaluation suggested several areas where the operation of the Act could be enhanced. These issues were mostly operational in nature or related to implementation processes rather than to the legislative provisions themselves.

In summary, the process evaluation and the above work confirms that the main principles and approach of the Act are sound. The latest report released in August 2007 – Living at the Cutting Edge: Women’s Experiences of Protection Orders also endorsed this view.

Scope of the review

As noted above, this is not a ‘first principles review’. Most stakeholders support the current objectives and framework of the Act. A fundamental review is not warranted. Indeed, many of the features of our Act have been, or are being, picked up in legislative reforms overseas.

The review focuses on matters that will improve the current law in achieving its objective of reducing and preventing violence in domestic relationships and by the means specified in the object section (s5) of the Act.[13] We are seeking to strengthen the Act and related legislation to ensure an optimal response to domestic violence.

Please note that this discussion document indicates the Government’s preferred preliminary proposals at this stage. These proposals may change as a result of consultation via this discussion document.

Matters excluded from the current review

Some issues and proposals raised by stakeholders in preliminary consultation were inconsistent with the general policy underpinning the Domestic Violence Act and its objects, or with general legal principles. As a result those proposals are not included in the discussion document.

Other issues, that are not subjects of the Act or related legislation, are also beyond the scope of the review and excluded from the discussion document. These include: eligibility for legal aid, the administration and operation of the Family Court, and funding for the organisations that provide programmes or other services.

More technical and legal drafting matters that will assist in clarifying the current policy behind the Act have also been omitted from this document, but these aspects of the legislation will be addressed at the time of legislative drafting.

Consultation – how to have your say

Your feedback on this discussion document will help to shape any proposals to change the Act. If the Government decides to make changes to the law, you will also have a chance to make your views known to a Parliamentary Select Committee, which must consider any changes before legislation is passed.

Official Information Act and Privacy Act requirements

The contents of any submissions will be subject to the provisions of the Official Information Act 1982 and the Privacy Act 1993. If the Ministry receives a request for information contained in a submission, it will be required to consider release of that submission, in whole or in part, in accordance with the terms of those Acts.

In providing your submission, please advise if you have any objections to the release of any information contained in your submission, and if you do object, the parts of your submission you would wish withheld along with the grounds for withholding under these Acts. Your views will be taken into account in making any decision whether to withhold or release the information requested.

The discussion document can also be viewed and downloaded from the Ministry of Justice website www.justice.govt.nz

Footnotes

1 Domestic violence is a term defined in section 3 of the Domestic Violence Act 1995. In this document the terms domestic violence and family violence are used interchangeably to refer to behaviour that would fall within the scope of section 3.

2 Research & Evaluation Unit, Ministry of Justice.

3 "Respondent" means the person against whom an application has been made for an order under the Domestic Violence Act; and includes a person (other than an associated respondent) against whom an order is made under this Act. (Section 2, Domestic Violence Act 1995)

4 "Applicant" means (a) a person who applies for an order under the Domestic Violence Act on his or her own behalf; (b) the person on whose behalf an application for an order is made pursuant to section 9, or section 11, or section 12 or section 73 of the Domestic Violence Act 1995 (Section 2, Domestic Violence Act 1995).

5 Chetwin, A; Knaggs, T, & Young P.T.W.A; (1999).

6 Barwick, H; Gray A; & Macky R; (2000).

7 Maxwell, G; Anderson, T; & Olsen, T; (2001).

8 Cargo, T, & Cram, F; (2002).

9 Cram, F., et al; (2002).

10 Barwick H; & Gray A; (2002).

11 McMaster K, Maxwell G, & Anderson T; (2000).

12 Robertson, N; et al. (2007).

13 This section is discussed in Part One: Main features of the Domestic Violence Act.