March 25th 2017

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COVER STORY Decentralisation: an undeveloped country

CANBERRA OBSERVED Millennials feel they've been left out in the cold

EDITORIAL Gas, power crises are due to renewables obsession by Peter Westmore

WESTERN AUSTRALIA Barnett election wipe-out delivers WA to Labor

MULTICULTURALISM First among equals or an also-ran culture?

WEST AUSTRALIAN LAW Domestic-violence laws disregard basic rights

INDUSTRIAL RELATIONS Fair Work Commission's disastrous penalty-rates decision

OPINION Trump-Russia allegations are smoke and mirrors

FOREIGN AFFAIRS Don't laugh: this is serious. Revival of Maoist play is a propaganda coup in Victoria

RURAL AFFAIRS Without new dams in the Basin, we're up the creek

CULTURAL HISTORY Pascal without pressure

OPINION Scope for regeneration as Me Generation shuffles off

MUSIC Dying for exposure

CINEMA Kong: Skull Island: Ape-ocalypse Now

BOOK REVIEW How maritime England lost America

ENERGY Hazelwood is vital to Australia's power supply

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Domestic-violence laws disregard basic rights

by Dr Augusto Zimmermann

News Weekly, March 25, 2017

Late last year the West Australian Parliament passed laws regarding domestic violence which pose an insidious threat to fundamental rights of citizens in that state.

Previous laws ensured that if a person alleged that violence had occurred she would usually be issued with a restraining order without any evidence to support that claim.

The new laws take this even further. Under the new legislation it is enough for a person simply to claim that she fears violence may occur in order to be issued with a restraining order.

“Powerful protection for the truly vulnerable? Or an incredibly dangerous weapon in the hands of the streetwise, vexatious and manipulative litigant?”, asks rhetorically Simon Creek, a well-known divorce lawyer in Western Australia.

As a divorce lawyer for many years, Simon has been “introduced to the best, and worst, of human beings”.

Perhaps, right there, is the source of his “growing unease” over the recent amendments to the Restraining Orders Act 1997 (WA). Quite rightly, in a piece published in The West Australian newspaper, Simon correctly explains the inadequacies of these ill-conceived amendments, thus manifesting his completely understandable “frustration that the changes are likely to cause as many problems as they might fix”.

Evidence is superfluous

Simon is simply expressing the frustration of many experienced lawyers at these radical changes. After all, such orders can be used to evict innocent people from their homes and to deny them any contact with their children. Indeed, these orders lack the proper application of due process and they are often granted on a “without admissions” basis, which means no evidence needs to be produced.

Indeed, the new laws passed by Parliament not only include these problematic moves but, as Attorney-General Michael Mischin openly stated: “We will be moving away from the need for establishing evidence of an act of abuse as is currently the case, towards one of behaviour to intimidate, coerce and control.”

So, under the new laws it will not even be necessary to demonstrate that domestic violence has occurred. Action can now be taken before that point, simply on the basis that someone fears that alleged control or intimidation could escalate into violence. That is an extraordinary shift, undermining one of the foundations of the rule of law: namely that one is innocent until proven guilty.

West Australian Police Minister Liza Harvey has been quoted in the media as saying: “We’re sending a message to the courts that we would prefer them to err on the side of the victim and err on the side of granting one of the violence-restraining orders in these scenarios because they do protect women.”

Of course it is extremely important to protect women who are at risk of violence and it is commendable that such strenuous efforts are finally being made to ensure victims are given every possible legal support to ensure their safety. But many in the legal profession and elsewhere take issue with the notion that laws should be tilted to favour victims without any consideration for traditional legal protections to ensure fair treatment for the alleged perpetrators.

“Arrest is the preferred option”

These protections are already being severely undermined in this state. The WA police have a deeply problematic pro-arrest policy for domestic violence. “Arrest is the preferred option,” according to the relevant police manual (COPS Manual, DV, even in situations where there is no evidence that violence has taken place. WA Chief Justice Wayne Martin told the WA Law Reform Commission that such a presumption of arrest “will almost inevitably produce injustice and hardship in some cases”.

Indeed many such cases have ended up in our courts where allegations of violence have ultimately been disproved years after the alleged offender found himself arrested, evicted from his home, suffered immense damage to his personal and professional reputation, and faced huge court costs to defend himself.

Police commissioner Karl O’Callaghan says that these reforms are necessary because the number of reported incidents of family violence in WA has “risen dramatically in recent years”. Incidents of violence have substantially increased but this is largely due the definition of domestic violence being expanded in 2004 to include behaviour that is “emotionally abusive”, “could intimidate a person”, etc. That year WA police recorded 17,000 incidents of violence, but by 2012 this had almost tripled (to 45,000).

And yet, to progress from a bad situation to one that is even worse, Simon Creek explains: “[W]ithin these laws – which passed through Parliament last [December] – all a person will need to show in order to be granted a violence restraining order (VRO) or a Family Violence Restraining Order (FVRO) is that they have a ‘reasonable apprehension’ of personal or family violence. No actual violence need have occurred. The new definition of family violence will mirror the Family Law definition of family violence, encompassing cyberstalking, denying a family member financial autonomy and support, preventing a family member from making or keeping connections with friends, ‘or any other behaviour that coerces/controls/causes a family member to be fearful”.

Hence, as Simon also correctly explains: “All a person will need to do is head off to court with their silver-tongued lawyer and tearfully explain that they have a reasonable fear of something bad happening. There will then be an automatic presumption in favour of granting a VRO or FVRO. And all of the above can take place without the alleged perpetrator even being informed. The first he, or she, might know of what is being said about them is when they return home to find the locks changed and a police officer serving them with a copy of the order.”

Legal advice ignored

The WA Liberal Government took this action despite having received explicit advice against it from the WA Law Reform Commission. In 2013 the Law Reform Commission was asked to consider various proposed legal changes, including introducing separate domestic violence legislation and expanding the types of “emotional abuse” included in the definition of domestic violence and adding banking and financial abuse.

The final report from the commission explicitly rejected such moves, noting that they were likely to exacerbate the existing problem of overuse and abuse of violence restraining orders, which are known to be used for tactical purposes in family law litigation. The commission’s report commented that the inclusion of emotional and psychological abuse within the definition of family violence is highly contentious, referring to Sydney University law professor Patrick Parkinson’s conclusion that the concept of economic abuse “has very little potential to be helpful and much potential for the opposite”.

No popular support

Above all, such “reforms” will inevitably lead to the further undermining of basic rights to natural justice, property rights and parental rights. Clearly the WA Government believed these moves had popular support, particularly from women voters. But judging from the results of recent elections, as well as the submissions received by the commission, there are many in our community, including many women, who are already uncomfortable with gender politics being used to undermine essential legal rights. This is certainly a step too far.

Augusto Zimmermann, LLB, LLM cum laude, PhD (Mon.) is a Law Reform Commissioner with the Law Reform Commission of Western Australia and Professor of Law (adjunct) at The University of Notre Dame Australia, Sydney. He is also Director of Post-Graduate Research and Former Associate Dean (Research) at Murdoch Law School, where he coordinates two core units taught in the Law School: Constitutional Law and Legal Theory. A prolific writer and the author of numerous academic books and articles, Dr Zimmermann was the recipient of the Vice-Chancellor’s Award for Excellence in Research 2012. He is also a Fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF).

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