Friday, 18 January 2019

How workforces respond to domestic violence

In November I had the pleasure on my first outing as a partner of Page Provan, family and fertility lawyers, of presenting to the Australian Human Resources Institute Diversity and Inclusion Network, just before the UN International Day for the Elimination of Violence Against Women.

Here is my paper prepared for the presentation.


AUSTRALIAN HUMAN RESOURCES INSTITUTE

DIVERSITY AND INCLUSION NETWORK


How workplaces respond to domestic violence


by Stephen Page[1]


What is domestic violence?

There are many definitions of domestic violence, but the current definition in the Domestic and Family Violence Protection Act 2012 (Qld) is a useful one as it seems to capture the range of behaviour that constitutes domestic violence.  Section 8 of that Act defines domestic violence as follows:

“(1)     "Domestic violence" means behaviour by a person (the "first person") towards another person (the "second person") with whom the first person is in a relevant relationship that —

(a)        is physically or sexually abusive; or
(b)        is emotionally or psychologically abusive; or
(c)        is economically abusive; or
(d)        is threatening; or
(e)        is coercive; or
(f)        in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

  (2)      Without limiting subsection (1), domestic violence includes the following behaviour —

(a)        causing personal injury to a person or threatening to do so;
(b)        coercing a person to engage in sexual activity or attempting to do so;
(c)        damaging a person’s property or threatening to do so;
(d)        depriving a person of the person’s liberty or threatening to do so;
(e)        threatening a person with the death or injury of the person, a child of the person, or someone else;
(f)         threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g)        causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
(h)        unauthorised surveillance of a person;
(i)         unlawfully stalking a person.

  (3)      A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

  (4)      To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.

(5)        In this section —

"coerce", a person, means compel or force a person to do, or refrain from doing, something.

"unauthorised surveillance", of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.

Example:
• reading a person’s SMS messages
• monitoring a person’s email account or internet browser history
• monitoring a person’s account with a social networking internet site
• using a GPS device to track a person’s movements
• checking the recorded history in a person’s GPS device

"unlawful stalking" see the Criminal Code , section 359B.”

That Act also talks about exposing a child to domestic violence.  This is contained in section 10:
“A child is
"exposed" to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.
Example:

• overhearing threats of physical abuse
• overhearing repeated derogatory taunts, including racial taunts
• experiencing financial stress arising from economic abuse
• seeing or hearing an assault
• comforting or providing assistance to a person who has been physically abused
• observing bruising or other injuries of a person who has been physically abused
• cleaning up a site after property has been damaged
• being present at a domestic violence incident that is attended by police officers”

Family violence is a wider term than domestic violence.  Family violence typically is the same kind of behaviour occurring within members of a family, as oppose to merely that occurring between two partners in a nuclear relationship.

Statistics have indicated that domestic violence occurs at higher rates within lower socioeconomic families, but to assume that domestic violence does not occur within well-off families is a mistake.  Looking at police maps many years ago, it was interesting to see that in Brisbane there were high rates of police responses in areas such as Logan City, but in suburbs such as Kenmore and Brookfield there were no police responses to domestic violence.  The assumption therefore would have been that no domestic violence occurred in those well-to-do areas.

That assumption was a mistake.  I have certainly acted for many clients from those areas who complained of domestic violence committed by their husbands.  If there were any room for doubt, the words that should resonate are those of a woman living in Brookfield killed by her husband – Alison Baden-Clay.  Her husband, it will be remembered, had an affair, killed Alison, then drove her body to a local bridge, where her body was dumped and then returned home.  The children were at home at the time their mother was murdered.

The good new – domestic violence rates are going down


In recent years, domestic violence has been a topic frequently talked about.  The media in particular has been much more responsible in reporting domestic violence.  In highlighting the domestic violence stories, not only is there pressure upon politicians and government agencies to act, but victims of domestic violence in seeing the stories realise that they may not be alone after all, and therefore seek help.  The ABC in particular has been very keen in the last few years in highlighting domestic violence, with a counter on any story as to the number of attendances by police across Australia on a particular day.  The counter changes during the course of the day, as the day progresses.

According to the ABC, this number is calculated in part by statistics for each State and Territory.  The most recent for Queensland in its story is the 2014-2015 year when Queensland Police attended 71,777 domestic violence occurrences.[2]

As I said, the good and surprising news is that the rate of domestic violence in Queensland at least is going down. 

I was alarmed when Dame Quentin Bryce was undertaking her Not now, Not never review into domestic violence responses in Queensland and it was seen that the rate of domestic violence was going inexorably up.  I wondered whether it was merely greater reporting or whether we had a more fundamental problem which was a greater rate of domestic violence – even though the first version of the Domestic and Family Violence Protection Act was passed as long ago as 1989.  The view of Quentin Bryce was that the rate of domestic violence was going up. 

By contrast with that figure of 71,777 domestic violence occurrences that Queensland Police attended to in 2014-2015, by the 2016-2017 year that number had decreased to 62,264.[3]

The service which assists with domestic violence in Queensland, DV Connect, says:[4]

  • handles 55,000 calls a year in Queensland;
  • helps 150 women and children to move per month to safety;
  • helps 12-20 pets per month to safety;
  • most calls are from South East Queensland, especially Brisbane;
  • 9% of the moves to safety are in far North Queensland, where the first trip is typically by plane;
  • 83% of the women callers are Anglo-Australian;
  • 10% of the women callers are Aboriginal/Torres Strait Islander (which I note is double their group as to the proportion of population) but 26% of those require a move to safety.

According to the Australian Bureau of Statistics:

·         The Aboriginal and Torres Strait Islander population as of 2016 in Queensland was 4.6% of the broader population.  The Australian Bureau of Statistics estimate that the Queensland population is currently five million.  4.6% of 5,000,000 is 230,000.

·         7% of callers are non-English speaking background and represent 11% of all crisis intervention; up to 40% of whom need crisis intervention and an interpreter.

The number of domestic violence applications is another indicator that statistics are going down.  In the 2016-2017 year there were 32,072 applications[5].  In the 2017-2018 year there were 30,381 applications for protection orders, or a drop of 5.27%.  In the 2018-2019 year to date (to 31 October 2018) there were 9,807 applications for protection orders.

Applications to vary protection orders have remained stable.  There were 10,129 variation applications in the 2016-2017 year, compared to 10,243 in the 2017-2018 year, or an increase of 1.13%.

With rare exception, the drop in numbers is occurring across the State.
Table 2. DVO applications (Magistrates Courts with the most lodgments) initiating applications only
Location
2013-14
2014-15
2015-16
2016-17
2017-18
2018-19 YTD (to 31 October 2018)
No. variance 2016-17 to 2017-18
% variance 2016-17 to 2017-18
Southport
2,391
2,691
3,515
3,346
2,945
966
-401
-11.98%
Beenleigh
2,034
2,170
2,594
2,509
2,384
811
-125
-4.98%
Ipswich
1,452
1,655
1,783
1,975
1,731
503
-244
-12.35%
Townsville
1,397
1,473
1,845
1,780
1,833
581
53
2.98%
Brisbane
1,351
1,436
1,956
1,935
1,862
643
-73
-3.77%
Cairns
1,195
1,205
1,261
1,319
1,243
384
-76
-5.76%
Caboolture
919
946
1,168
1,141
1,037
350
-104
-9.11%
Rockhampton
887
785
1,018
999
953
328
-46
-4.60%
Maroochydore
847
946
1,104
1,060
1,041
325
-19
-1.79%
Toowoomba
753
763
845
904
868
257
-36
-3.98%
Holland Park
697
711
895
835
777
228
-58
-6.95%
Pine Rivers
675
811
874
855
864
318
9
1.05%
Redcliffe
619
668
773
800
758
238
-42
-5.25%
Cleveland
607
665
751
796
735
224
-61
-7.66%
Richlands
571
577
696
751
698
278
-53
-7.06%
Mackay
623
639
791
783
753
236
-30
-3.83%
Bundaberg
385
504
724
659
639
163
-20
-3.03%
Mt. Isa
495
537
764
892
654
207
-238
-26.68%
Sandgate
408
407
534
473
435
122
-38
-8.03%
Gladstone
472
505
559
558
627
188
69
12.37%

What it is telling is that almost 71% of all applications are brought by police, just under 29% are brought privately and 0.48% or 47 applications are made by the Court.  There is the power given to Courts on sentencing on their own motion to make protection orders.

It is most telling in my view that so many applications are made by police.  The practice around Queensland used to vary dramatically.  In some parts of Queensland (such as rural areas) applications were overwhelming made by police, but in busy registries such as the Gold Coast and Beenleigh Magistrates Courts, police often left it to the aggrieved to make their own applications.  This attitude by police seems to be from a systemic approach over many years, but particularly following the not now, not ever report. 

The Domestic and Family Violence Protection Act 1989 (Qld) was originally enacted following the report of the Queensland Domestic Violence Task Force, Beyond these Walls (1988), commissioned by the then national party government.  The report was prescient in its comments about police:

            “Members of the Task Force believe that a circular phenomenon is currently operating in respect of the interface between police and incidents of domestic violence.  Victims do not report spousal assaults to police because of a belief that police are unable and/or unwilling to provide effective protection.  Police are reluctant to actively intervene amongst other factors because of a perception that the victims do not welcome police involvement.  Police officers believe that they have neither the mandate nor the powers to effectively intervene in cases of domestic violence.  Victims of domestic violence generally perceive that the police have neither the necessary powers, nor the will to pursue these cases.

            As stated at the beginning of this chapter, Task Force members believe that law enforcement officials have a critical role to play in the management of domestic violence and that appropriate intervention by police officers can avert further violence in the short term by arrest, or the removal of one or other party, or through the initiating of protectional proceedings…Task Force members also believe that while the police response is clearly a “provisional solution to a long range problem” it can have beneficial flow-on effects through deterrence of the offender, and through breaking the cycle of violence dynamic between the couple.  However, significant changes are needed to current police practices to effect these outcomes.

            To this end, the Task Force recommends that the police department adopt a policy commitment to active intervention in respect of domestic violence.  Police officers should be committed to the full application of the criminal law in cases of domestic violence and to the utilisation of the proposed protection order provisions…”

What I saw through my work as a solicitor over many years handling domestic violence cases and sitting on various community organisations that dealt with domestic violence was that too often the police did not take criminal action to charge perpetrators with assault or other offences (or even breach proceedings), instead relying on protectional proceedings, and even then too often passing the responsibility of seeking those orders onto the aggrieved, rather than bringing to bear the full weight of the State.

The gender of the aggrieved, according to Queensland Government statistics are:

  • Females – 74%
  • Male – 26%
  • Not known – 14% or 0.2%

Domestic violence orders in the 2017-2018 year are:

  • Female aggrieved and male respondent – 71% of orders made;
  • Female aggrieved and female respondent – 6% of orders made;
  • Male aggrieved and male respondent – 8% of orders made;
  • Male aggrieved and female respondent – 16% of orders made.

One may think in looking at those numbers that there is a large amount of domestic violence occurring in same-sex relationships.  Be wary with those statistics, as domestic violence is defined under the Domestic and Family Violence Protection Act, orders can be obtained against family members as well as informal carers.  So a female to female case or a male to male case may be a same-sex relationship or it may be members of family or even informal carers.  Of the types of relationships in which orders are made, according to the Queensland statistics:

·         74% of cases involve an intimate personal relationship, which includes marriage and de facto relationships;

·         26% of cases involve family relationships (which would include senior abuse cases where there has been domestic violence);

·         0.31% of cases have involved informal care.

The legislation under an earlier version of the Act that was widened to include informal carers specifically came about through the lobbying efforts of HIV positive men where it was asserted that these seriously ill men were being subject to abuse by their carers.

The next telling statistic is that 71% of applications are made electronically, 28% over the counter and 1% other.  The police used to complain that after they had attended a domestic violence incident, it would take them 6 hours of paperwork to process what they had just dealt with, including an application for a protection order.  Amendments to the legislation allowed police to bring applications electronically.  It is not surprising that the figure of 71% is also the same as the number of police applications.  The number of private applications of 28% reflects the number that are made over the counter of 28%.  The other 1% would include on the relatively rare occasions that the police would contact magistrates to make orders urgently, doing so by telephone or radio.  Although those oral applications might be electronic, I suspect that they would be categorised under that 1%.

If in doubt that the amount of domestic violence is going down, three further statistics indicate this is so:

·         In the 2017-2018 year, there were 24,893 protection orders granted, a 7% drop on the 2016-2017 year.

·         In the 2017-2018 year, there were 13,886 temporary protection orders issued, a drop of 3% on the 2016-2017 year.

·         In the 2017-2018 year, there were 7,215 variation orders made, a drop of 20% on the 2016-2017 year.

There must be caution about that last figure.  Previously domestic violence orders were made (except in special circumstances) for a maximum of 2 years.  The legislation now allows protection orders to be made, except in special circumstances for a maximum of 5 years.[6]  What used to happen was that when the 2 years was almost up, a variation application would be made when there was ongoing domestic violence to extend the order.  Now with longer orders, the number of those applications will likely continue to drop.

In the 2017-2018 year, the number of protection orders made for Aboriginal and Torres Strait Islander people was 930 or 16% of the overall total.  The number of temporary protection orders was 466 or 14% and the number of variation orders was 301 or 17%. It would appear that the Aboriginal and Torres Strait Islander population as I said above is about 4.6% of the Queensland population, which means that the orders are being made roughly about three times the rate for Aboriginal and Torres Strait Islander people as for the population as a whole.

Breaches commenced by Queensland Police in the 2017-2018 year were 19,994 or a decrease of 3%.  Convictions were 13,735 or up 200.  Of those:

  • 4,825 were imprisoned;
  • 71 were custody in the community;
  • 353 received community service;
  • 2,735 received probation;
  • 4,132 received a fine;
  • 890 received good behaviour;
  • 729 received other.

According to Queensland Police statistics (which were only up to 30 June 2017), reported breaches were up in that year at 678 per 100,000 or up 11%.  Brisbane was up 10%.  Central Police was up 17%.  Brisbane has the lowest rate of breaches.  Northern Police command has the highest rate of breaches.  85% of breaches are by males.  52% of those breached were arrested.

Breach proceedings had increased in the 2016-2017 by 9% on the prior year. 

However, there were also 1,049 strangulation offences in domestic settings.  This law was added in May 2016.  There were 34 per 100,000 in Northern command which is the highest in the State and 11 per 100,000 in Brisbane command, the lowest in the State.

According to the police, 28% of male respondents had 2-3 domestic violence applications concerning them.  This also concerned 20% of female respondents.  Happily, less than 1% of male respondents had 5 or more domestic violence applications concerning them.

What you can do in your workplace to help stop domestic violence


Checklist of things to do:

1.             Support a diverse and inclusive workplace.
2.             Have a workplace that does not tolerate bullying.
3.             Be supportive of those who have been the subject of domestic violence, including offering them counselling and leave.
4.             Check your EBA or award to see if domestic violence leave is covered.
5.             Partner with an organisation like Australian CEO Challenge.
6.             Have training about domestic violence within your workplace.


Supportive environment


It is essential for those who are the subject of domestic violence that they have a supportive workplace.  Often work is the only place that provides a social outlet and sanity for those trapped in domestic violence relationships.

Being believed can be absolutely vital to one’s soul during this trauma. 

About 20 years ago, I acted for a woman who had separated from her husband.  It was uncontested that during the marriage they owned a business together.  He would radio her or phone her repeatedly during the course of the day to check on exactly where she was and exactly what she was doing.  At night, he would in rages punch holes in the walls and chase her or the children around the house with a loaded shotgun.  He owned several guns.  All of this was uncontested evidence.

When the matter came to a domestic violence hearing, the hearing itself took 7 days – which is still a Queensland record.  A typical domestic violence trial might take half a day or a day or in a complex matter 2 days.  It shows just how desperately fought this matter was.

Of course, those 7 days weren’t all together.  They were bunched out over a number of months.  In the meantime we had difficult family law proceedings.  The husband took a set against me because he didn’t like paying anyone any money.  Much like Yertle The Turtle by Dr Seuss, the husband had climbed to the top of his empire on the backs of others and was determined to remain there.  After he had sought to intimidate his wife (and that didn’t work), he tried the same with me.  I had driven to Court with boxes of files.  I had parked near the Courthouse.  The husband apparently wrote down my registration number on the back of his hand.  He then went to an office of the Department of Transport and bribed an officer to give him my home address.  The husband lived a short distance from me.  Despite police raids, police were unable to recover his guns.  He had made threats to kill me.  My client (and I) took those threats very seriously.  She thought I was in more danger than she was. 

One night I was out shopping with my wife and young children.  The husband had also been at that shopping centre.  He saw my car and waited for us to return.  He then abused me in the presence of my wife and kids.  His tone and manner was intimidating.

Subsequently, I gave evidence so that I could be named and protected on the order.  I was in the witness box for 4 hours.  The husband cross-examined me personally. 

On my wall in my office I have a series of plaques and certificates that I have obtained during my career.  The one that means the most to me is a copy of the protection order made in that case.  The names of everyone else in that case have been blacked out. I am named as an aggrieved person (now called a named person) as someone who needed to be protected on the order.  Aside from my gratitude the Court in having the order made, the reason that that order has pride of place on my wall is because the magistrate in his findings said that he believed me absolutely.  Never have I had such a sweet victory.  I cannot tell you how important it was to be believed as the teller of truth in that matter.

Staff may be able to be referred to a counsellor, such as through an EAP.  If the counsellor is seeing the client about sexual assault allegations, then the counselling may well be privileged.  If the counselling is through an approved organisation under the Family Law Act, such as Relationships Australia, the counselling may also be privileged under the Family Law Act.  Ironically, in the case involving Gerard Baden-Clay, that counselling may not be privileged in other civil or criminal proceedings.[7]

Therefore, care should be taken about referral of a staff member to an EAP. 

Obviously a staff member can attend upon their GP and have a referral to a psychologist or similar professional for a mental healthcare plan.  Those attendances similarly will not be privileged unless they meet those criteria I mentioned above.

Partner and Training


I want to give a very strong endorsement that your organisation should partner with and receive training from Australia CEO Challenge.  For about 10 years I was either a partner of or a board member of (as deputy chair) of Australia CEO Challenge.  This is a micro charity based in Brisbane that has won award after award for innovation.  Its model is to inspire CEOs of organisations, i.e. to challenge them, to tackle the issue of domestic violence and then from that top down leadership position within organisations to make sure that the organisation does likewise. 

One of the ways it does this is to provide workplace training.  Another way is to engage in active partnership between the business and a partner in the domestic violence sector.  That partner might be a women’s refuge, it might be Australia CEO Challenge or might be another organisation related in the field, such as DV Connect.

As an example of such a partnership, one women’s and children’s refuge that I visited spoke adoringly about their partnerships.  One partnership was with the then Department of Works.  It is fair to say that women and children shelters run on the smell of an oily rag.  They are very tight for money and resources.  The Department’s apprentices built the refuge a cubby house.  When it was realised that it was very difficult to get the cubby house into the refuge, the Department hired seemingly the world’s largest crane to life the cubby house over the refuge and put it into position.  It made the joy of young children so much better that they actually had somewhere to play.

Another partnership was with the Women’s Service Organisation.  They came up with the idea of providing beauty packs for women.  It is extraordinarily moving to talk to refuge workers who take women and children in with the clothes that they have on them and nothing more.  It was described to me either by workers or the women themselves that they felt naked coming into the refuge.  They did not have their usual beauty products.  They did not feel feminine at all.  A small beauty pack gave them some joy in all the stress and gloom of separation. 

Andrea O’Halloran has told you that Aurizon was a partner of Australia CEO Challenge, and had provided training there, but somehow that training had only impacted a small number of staff.  Andrea and others then rolled that out on a much larger scale within the organisation, so that staff knew the company’s position about domestic violence.

Domestic violence leave


Domestic violence leave is now regularly in the headlines, as unions insist on it and some employers at least resist having more leave and therefore costs foisted on them.  There were recently headlines that Queensland public servants who were allegedly perpetrators of domestic violence were taking leave. 

The experience that Andrea O’Halloran had seemed to be closer to what one might expect was the case and that is that although there was domestic violence leave available within Aurizon, employees rarely took it.  To do so means that they would have to open up to fellow employees that they were the subject of domestic violence.  Unfortunately, domestic violence continues to throw a shadow and veil across those subject to it, who were forever afraid that they will be judged as weak and that it may impact upon them in their workplace.

We have all heard stories of women who say that they have fallen over the dog, been hit by a bat, fallen down the stairs and similar to explain injuries.  Research undertaken at Royal Brisbane and Women’s Hospital about 20 years ago, which was world leading, showed not surprisingly that women were grossly underreporting domestic violence when they came to Accident and Emergency.  Again not surprisingly, other research showed that pregnant women were all too commonly assaulted by their partners during the pregnancy – and again covering up.  The reasons given for covering up are obvious:

  • Shame;
  • Fear;
  • Embarrassment;
  • Concern that the children will be removed from them.

Incidentally, I should mention that domestic violence leave both sadly and proudly was a Queensland innovation.  The first place I am every aware that had domestic violence leave was Heritage Bank.  John Mintz decided to take up the domestic violence race, i.e. a race to raise funds and particularly raise awareness about domestic violence.  The race is run by Australia CEO Challenge.  John decided to throw the effort to a committee, his management team within Heritage Bank.  Heritage Bank already supported Toowoomba Says No – an effort to ensure that domestic violence was not approved of in Toowoomba.  They ramped up their efforts.  Through all their branches they talked about opposing domestic violence. 

The one thing that Heritage Bank that no-one had done before, at least to my knowledge, was to create domestic violence leave – so that staff knew that they could take time off if needed when dealing with these terrible events. 

Queensland Government


The Queensland Government has a domestic and family violence directive which is support for employees affected by domestic and family violence.  I have attached the directive to my paper.

Australia CEO Challenge along with its main partner Minter Ellison, DV Connect and the Queensland Government has also prepared a workplace approach to employees who use or may use violence and abuse. 

I consider this an excellent document and I have also attached it.

As to the legal perspective from Minter Ellison, in large part I agree with what they say. 

Great care must be taken if you have a staff member who is the respondent to a domestic violence application.  It may be that the staff member has not committed any acts of domestic violence at all.  Sometimes applications are brought maliciously, such as cross-applications.  It used to be the case prior to the 2012 Act that when police turned up at a domestic, if they couldn’t work out who was mainly committing the domestic violence, they would bring an application for a protection order against both parties, which resulted in mutualisation (and then diminishment of the consequences) of domestic violence.

When the Government was seeking community consultation, which then led to the enactment of the 2012 Act, I was among a group of white ribbon ambassadors who told Government officials that domestic violence was primarily gendered, i.e. by men to women.  It was amazing there was a group of men who said this.  Apparently none of the women’s groups had said this specifically.  We also said that there had to be a stop to these mutual applications and that the primary perpetrator of domestic violence should be identified. 

These two principles made it into the principles for administering the Act which are contained in section 4:

“(1)     This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

  (2)      Subject to subsection (1), this Act is also to be administered under the following principles —

(a)        people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

(b)        to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;

(c)        perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;

(d)        if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Example:
• women
• children
• Aboriginal people and Torres Strait Islanders
• people from a culturally or linguistically diverse background
• people with a disability
• people who are lesbian, gay, bisexual, transgender or intersex
• elderly people

(e)        in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;

(f)         a civil response under this Act should operate in conjunction with, not instead of, the criminal law.”

We were also critical that police were obtaining protection orders as an alternative to the criminal law.  In other words, it seemed that all those years since beyond these walls in 1988 that nothing had really changed.

It seems as though mutual application brought by police have decreased, but they nevertheless remain in place. 

Twenty-eight percent of applications are brought privately.  In those 28% of matters, it is extremely common that a temporary protection order will be made on the first occasion in Court without the respondent being made aware.  All that the magistrate needs to be satisfied about is that on the material before him or her, there is an allegation of domestic violence.  If there is more than one, all the better, but there only needs to be one.  The bar to obtain such an order is extremely low.  Section 46 of the Domestic and Family Violence Protection Act 2012 (Qld) says:

            “A temporary protection order need only be supported by the evidence that the court considers sufficient and appropriate having regard to the temporary nature of the order.”

The thinking behind the Act is to wait until the evidence is tested at trial.  A hearing may be 2 or 3 or sometimes 6 or 7 months away from when the initial temporary protection order was made.

Some respondents may have particularly adverse consequences to their employment caused by the making of temporary or final protection orders.  For example, those in the security industry may no longer have a licence.  Those in the mining industry may be required by their employer to handle explosives.  It may be appropriate for the employee to be reassigned during the currency of any temporary protection order.  Section 15 of the Explosives Act 1999 (Qld) is an example of potential difficulties where the making of the protection order may cause problems for the employee and the employer.  The Chief Inspector of Explosives is entitled to make enquiries.  Section 15(2A) and (3)(a) are clearly directly relevant:

“(2A)   If the person is an individual, the chief inspector may, for subsection (2) , make inquiries about the person’s identity, character, mental and physical health, and relevant experience and expertise.

   (3)     In deciding whether the person is an appropriate person, the chief inspector may consider, among other things —

(a)        if the person is an individual —

(i)                                         the person’s mental and physical health; and

(ii)              whether the person has been convicted, in Queensland or elsewhere, of a relevant offence; and

(iii)            whether a domestic violence order has been made, in Queensland or elsewhere, against the person at any time; or…”

A domestic violence order is defined in the dictionary to the Explosives Act as:

            “…has the meaning given by the Domestic and Family Violence Protection Act 2012, and includes an interstate order or registered New Zealand order under part 6 of that Act.”

What is a domestic violence order is defined in section 23(2) of the Domestic and Family Violence Protection Act 2012 (Qld):

“A Domestic Violence Order means:

(a)              a protection order; or
(b)              a temporary protection order.”

Therefore a mining company would have certain obligations to the regulator upon learning that a staff member had had a temporary protection order made against them – even though that temporary protection order does not contain a finding about whether or not domestic violence has occurred.

Just because a final protection order has been made, do not assume that there has been a finding of domestic violence against the respondent.  There may not have been.  Section 51(1) of the Domestic and Family Violence Protection Act 2012 (Qld) makes this plain:

“(1)     If the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not oppose the making of the order, the court may make the order –

(a)              the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and

(b)              without being satisfied as to any matter mentioned in –

(i)                 for a proceeding for a protection order – section 37(1)(b) or (c); or
(ii)              for a proceeding for a temporary protection order – section 45(1)(b); and

(c)               whether or not the respondent admits to any or all of the particulars of the application.”

Section 37(1)(b) and (c) provide:

“(1)     A court may make a protection order against a person (the “respondent”) for the benefit of another person (the “aggrieved”) if the court is satisfied that –

            (b)        the respondent has committed domestic violence against the aggrieved; and

Example: See the examples of the type of behaviour that constitutes domestic violence in sections 8 , 11 and 12, which define the terms
"domestic violence" ,
"emotional or psychological abuse" and
"economic abuse".
(c)        the protection order is necessary or desirable to protect the aggrieved from domestic violence.”

Section 45(1)(b) provides:

            “A court may make a temporary protection order against a respondent only if the court is satisfied that –

            (b)       the respondent has committed domestic violence against the aggrieved.”

If you have an employee whom you believe has committed domestic violence and you believe action needed to be taken regarding that employee, it would be wise to obtain legal advice.  As Minter Ellison say very clearly in their note:

            “Remember: an employee is entitled to natural justice in any employment process.”


Stephen Page

Page Provan

22 November 2018

stephen@pageprovan.com.au


[1] Stephen Page is a partner of Page Provan Solicitors, Brisbane.  Stephen was admitted as a solicitor in 1987 and has been a Queensland Law Society Accredited Family Law Specialist since 1996.  Stephen has written and presented at conferences about domestic violence in Australia and the United States.  Stephen was involved in the 2003 Domestic Violence amendments, was part of White Ribbon Ambassadors Group consulted to the Domestic and Family Violence Protection Act 2012 (Qld) and was the Queensland Law Society representative dealing with the drafting of the bill that became that Act.
[6] Section 97 Domestic and Family Violence Protection Act 2012 (Qld).
[7] R v. Baden-Clay [2013] QSC 351.