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Queensland Police Union Submission to the Special Taskforce on the Review of Domestic and Family Violence


17 September 2015

Queensland Police Union

Submission to the Special Taskforce

on the

Review of Domestic and Family Violence

 

The Queensland Police Union (“QPU”) believes the current domestic violence laws in Queensland have become overly cumbersome and time consuming, and created a situation which seems more directed towards collecting statistics than actually protecting vulnerable people.

 

The QPU recommends a complete re-working of the current laws, and a simpler and more stream lined approach. 

 

At present, before a domestic violence protection order (“DVPO”) can be issued, an actual act of domestic violence must occur. After that, the Court must be satisfied that the making of an order is desirable or necessary to protect from future domestic violence.

 

The QPU understands a large number of DVPOs contain simply the “mandatory conditions” being an order that the respondent must be of good behaviour and refrain from future acts of domestic violence. Most such orders expire after either 12 months or two years, and hence stop acting as any form of protection.

 

The current situation can be summed up as requiring an aggrieved to be subjected to actual domestic violence, and then to remain at risk of further domestic violence. After that, the aggrieved may receive an order, telling the respondent to behave themselves for a year or two. There is no intervention or assistance provided to the aggrieved by virtue of the DVPO. Simply it is a piece of paper, and the aggrieved, if requiring assistance, is forced to approach support services themselves.

 


Additionally, there is no intervention into the behaviour of the respondent. It is not until such time as the respondent is charged with breaching a DVPO, that the respondent faces the Courts and can be subject to community based orders such as probation, community service or intensive correctional orders. By this time, the respondent has committed at least two acts of domestic violence against that particular aggrieved. The first act being to ground the application for the order, and the second the breach of the order.

 

It takes considerable police effort and time to make applications for domestic violence orders, and to investigate allegations of domestic violence. It is not uncommon in the QPU’s experience, for a police crew (consisting of two officers) to spend half of their eight hour shift dealing with a single domestic incident.

 

The QPU believes the above approach is ad hoc and fails to provide protection for vulnerable people. Instead the system needs to be redesigned to provide for immediate protection for all individuals.

 

The QPU advocates the creation of a new summary offence of “commit domestic violence”, in similar form to the following:

 

“Any person who commits an act of domestic violence against a relevant associate of the person commits an offence”.

 

The definition of “domestic violence” should be the same as under the current Act, and the “relevant associate” should adopt the current “relevant relationship” between the aggrieved and respondent provisions.

 

The benefit of creating such an offence means that the majority of current DVPOs would be unnecessary. It would simply be a statutory offence to commit domestic violence against one’s partner (or former partner). 

 


There would no longer be a need for a person to be subject to an act of domestic violence, and placed at risk of further acts, before being eligible for a DVPO. Victims of domestic violence would only be exposed to the Court process once, and that would only occur where a charge of committing domestic violence was contested by the respondent. At present, an aggrieved can be required to give evidence both at the hearing of the application for an order, and then at any subsequent breach of the order.

 

In addition, the creation of such an offence means orders will not expire after a year or two, but rather aggrieveds will be afforded ongoing and continual protection. In addition, there would be no need for an aggrieved to register an interstate (or New Zealand) order in Queensland, where such order only contained the standard conditions. The proposed offence provision would simply apply.

 

The creation of a commit domestic violence offence also removes the need for police to serve DVPOs which contain only the standard conditions. At present a DVPO does not take effect unless the respondent was in Court at the time it was made, or it is served on the respondent, or a police officer explains the conditions of the DVPO to the respondent. Under the current system, any act of domestic violence committed between the making of the order and its service, does not constitute a breach.

 

The above proposal would also assist in freeing up police resources. Police are trained to investigate criminal offences and lay criminal charges. This is a daily function of most officers. With the exception of domestic violence applications, most police have very limited experience in making or dealing with civil applications. By creating the proposed offence, domestic violence is moved into a realm police are extremely familiar and comfortable with.

 


To support the proposed offence, and further enhance the safety of the victim, accompanying provisions which suspended any respondent’s weapon’s licence and prohibited such person from possessing a weapon could be enacted. Such provision would mean that a respondent’s weapons licence was suspended automatically from the moment of being charged, and would remain suspended until such time as the charge is determined by the court.

 

In addition, a respondent could be subject to bail conditions, including ouster type conditions and no contact conditions. A respondent could also be subject to an objection to bail and kept in custody until their matter is heard by the court. The existing laws in relation to arrest, charging, bail conditions and refusal of bail are already in place and would apply to any new offence of committing domestic violence.

 

At the conclusion of the court proceedings, the court itself should be required to determine whether conditions such as no contact or ouster or other conditions are required. The court should be entitled to make an order imposing such conditions whether the court convicts or dismisses the charge of committing domestic violence. Such a position is consistent with the present stalking laws in Queensland, where the court can make a restraining order at the conclusion of the hearing and regardless of conviction. Up until the making of such order, the defendant is subject to bail and any conditions thereon.

 

The Weapons Act could be amended to then recognise that a person is not fit and proper to hold a licence where that person has been convicted in the preceding five years of committing domestic violence, or has been subject to a restraining order.

 

Amendments to the Bail Act could also ensure that where a respondent fails to appear in relation to a domestic violence offence, any conditional bail (such as ouster conditions or no contact), would continue to apply (even though the person’s undertaking was forfeited), until such time as the person is brought before a court on the fail to appear warrant.

 

There would no longer be a need for copies of restraining orders to be served on respondents, simply because respondents would be present in court for the determination of their matters. There would be no gap between additional conditions being imposed and subsequent service of an order on a respondent.

 

Finally, the above proposal allows for intervention into the behaviour of respondents. The courts have the power to impose probation and other community based orders which can be conditioned to require attendance at courses and other rehabilitative schemes. Such orders and supervised assistance can allow for proactive and preventative steps to be taken to reduce the risk of a respondent re-offending.

 

It would even be possible to introduce a provision, similar to that used for drug diversion, whereby respondents appearing on a first or second offence of committing domestic violence, could have their convictions rescinded, in circumstances where they complete designated courses successfully and demonstrate that they have addressed their behaviour over a 12 month period by not reoffending.

 

The QPU believes the above approach, and use of the criminal justice system in a manner in which it is designed to operate, would be the best approach to providing protection to victims of domestic violence. The Union similarly believes the above approach would constitute a better use of police resources and time.

 

Private Orders

There would be no scope for the making of private domestic violence orders under the above scheme. In most cases the need for such orders would be eliminated, as the creation of the offence itself means that every individual is afforded the protection of what is currently a standard DVPO.

 

It is the QPU’s position that more serious cases of domestic violence, and those requiring the making of no contact orders etc, would ordinarily result in police investigating and prosecuting for the proposed offence. The use of appropriate bail conditions would also be applicable in this instance.

 

Should the Review determine that there is still a need for the making of private DVPOs, then amendments could be made to the Peace and Good Behaviour Act to allow for such applications to be brought. However it is the QPU’s position that the above approach would effectively eliminate the need for the vast majority of private applications.

 

Alternatives

The QPU is extremely concerned over the amount of police resources tied up in dealing with domestic violence matters, and believes savings in terms of time and money can be made by bringing some amendments to the current legislative scheme, should the QPU proposal for a summary offence be rejected.

 

Firstly, it is suggested that rather than involve police having to apply to the court for a DVPO, an authorised officer (of the rank of Sergeant or higher) should be authorised to issue a DVPO. A police issued DVPO would then take immediate force with the status of a “temporary order”. A respondent to such an order would then have the right to make application to the court to contest it. If the respondent fails to apply to the court to contest a police issued DVPO within 14 days of its issue, then such order would become a “final” order.

 

This approach would reduce to some degree the paperwork the current legislative scheme imposed on police. It would also remove the requirement to serve first the application, and then days later, the court issued order, thus freeing up police resources.

 

Such a scheme would be similar to the current infringement notice schemes already utilised in Queensland. For example, a speeding infringement is issued. The motorist then has 28 days to elect to go to court. If the motorist makes no such election, then the infringement becomes enforceable.

 


Malicious Applications

The QPU understands its members are consistently frustrated by aggrieveds wanting to bring applications for DVPOs to support family law proceedings. Even in the case of a private application, police officers are tasked with gathering statements and preparing a brief of evidence, where such application is contested. In addition, a police prosecutor often appears on behalf of the aggrieved in private applications.

 

The QPU believes domestic violence is a serious issue and should not be used as a crutch to support family law proceedings. As such, the QPU recommends the current provisions restricting the issue of costs orders should be repealed. As in all civil proceedings, costs should follow the decision and be awarded to the successful party. By removing the current costs limitation provisions in the current Act, the QPU believes only sound applications are likely to be brought before the Courts.

 

To the knowledge of the QPU, costs have been rarely issued against an unsuccessful aggrieved in Queensland since the conception of the Act. Clearly the current cost limitation provisions are not working, and are encouraging people to utilise the domestic violence legislation for alternative purposes.

 

The misuse of the domestic violence legislation is of major concern to the QPU. It frequently encounters instances where the partner of QPU members will bring a private DVPO application during a separation, without any grounds. Often these matters are withdrawn prior to hearing, however, on occasion, the officer must endure the hearing only to be successful and not be awarded their costs.

 

It is particularly problematic for police officers who are subject to malicious DVPO applications, as they are immediately removed from operational duty and have their access to service issued weapons revoked, even in cases where no temporary order is made. The impact of malicious applications on police officers is severe. The QPU believes allowing the ordering of costs, as occurs in most other civil proceedings, would greatly reduce the incidence of malicious applications.cg