Wednesday, 1 October 2008

NT: draft mandatory DV reporting Bill

Back in August, I posted an article about how the NT was proposing laws so that there was mandatory reporting of domestic violence.

The Northern Territory Government has now circulated a draft of the Domestic and Family Violence Amendment Bill 2008. The new mandatory clauses are contained in new sections 124A and 125:

Reporting domestic violence
(1) An adult commits an offence if the person:
(a) believes on reasonable grounds:
(i) another person has caused, or is likely to cause, harm to
someone else with whom the other person is in a
domestic relationship; or
(ii) another person's life or safety is under serious or
imminent threat because domestic violence has been or
is being committed; and
(b) does not, as soon as practicable after forming the belief,
report (orally or in writing) to a police officer:
(i) the belief; and
(ii) any knowledge of the person forming the grounds for the
belief; and
(iii) any factual circumstances on which that knowledge is
Maximum penalty:
200 penalty units.
(2) It is a defence to a prosecution for an offence against
subsection (1) if the defendant has a reasonable excuse.
(3) Without limiting subsection (2), it is a reasonable excuse for the
defendant to establish the defendant honestly and reasonably
believed someone else who had formed the same belief had
already made a report under subsection (1) about the belief.
(4) On receipt of the report, the police officer must take reasonable
steps to ensure the report is investigated.
(5) This section has effect despite another law of the Territory.
(6) In this section:
harm means physical harm that is serious harm.
physical harm, see section 1A of the Criminal Code.
serious harm, see section 1 of the Criminal Code.

Repeal and substitution of section 125
Section 125
repeal, substitute
Protection for reporting domestic violence
(1) A person acting in good faith in making a report under section 124A
is not civilly or criminally liable, or in breach of any professional
code of conduct:
(a) for making the report; or
(b) for disclosing any information in the report.
(2) In any proceeding before a court, except with the court's leave:
(a) the report or evidence of its contents is not admissible; and
(b) a person cannot be compelled to give evidence, or to produce
a record, about the report or the identity of the maker of the
(3) The leave may be granted only if:
(a) the report, evidence or record is of critical importance to the
proceeding; and
(b) failure to grant the leave would prejudice the proper
administration of justice.

What extraordinary provisions!

Imagine how section 124A might happen in legal practice. A male client comes in to see his lawyer. He has been charged, say, with assault of his wife. The lawyer asks, not unreasonably, "have you ever assaulted your wife?" The response might be: "Yes, I once gave her a push." As soon as the client has given that answer, the lawyer is obliged to advise the police. Failure to do so constitutes an offence.

This provision will have immediate consequences to clients acting in a full and frank manner with their lawyers and giving open and honest instructions.

Normally a lawyer would say they would not have to report this type of information because to do so would be in breach of legal professional privilege, as well as common law and Privacy Act confidentiality requirements.

Section 124A sets up a defence of "reasonable excuse". Ordinarily, privilege and confidentiality would be those defences. However, section 124A has effect despite another law of the Territory and section 125 makes clear that the obligation under section 124A overrides any professional code of conduct. Where this leaves privilege and privacy obligations is anyone's business.

If the lawyer believed that someone else had reported it first to police, then there is a defence. However, there are two clear limitations in the example I gave:
  1. the lawyer would have the obligation of proving the defence, not the prosecution of disproving it - therefore there would have to clear evidence as to how the lawyer formed that view- a gut instinct is clearly not enough;
  2. the lawyer would then have to ask the client about whether someone else had reported it to police, and to be safe, should obtain some supporting documents of that- which means that in all practicality that the lawyer would have to report it in the absence of documents.

I don't have any qualms in appropriate cases of lawyers reporting to police (or even to the threatened person) if a client makes a threat to kill that person. I say "appropriate cases" because it can be a fine line as to whether a client is just blowing hot and cold or whether they really do intend to kill the other party.

In cases of this type of emergency, the National Privacy Principles recognise this exception. Principle 2.1(e) allows an exception for disclosure when there are "serious threats to life, health or safety".

The Commentary on this Principle states:

This exception is aimed at emergency situations where there is a serious threat to health and safety and using or disclosing personal information will help reduce that threat. Serious and imminent threats to an individual's life, health or safety may be a threat to the individual the organisation is dealing with or another person. Ordinarily a serious threat would be a threat of bodily injury, threat to mental health, illness or death. 'Imminent' means the threatened harm is about to happen. Threats to finances and reputation or a threat of stress or anxiety would not ordinarily be serious threats to life or health.
Tips for compliance
Think about whether the proposed use or disclosure will reduce the threat. Also think about whether there are alternative reasonable ways to reduce the threat (for example, by seeking consent to the use or disclosure) - this helps in working out whether the disclosure is necessary. Organisations considering using or disclosing personal information to reduce threats to public health or public safety may find it useful to discuss the threat in general terms (and whether the proposed use or disclosure is likely to reduce the threat) with a relevant authority dealing with public health or safety, for example a health department.

Tarasoff v Regents of the University of California

Way back in 1969, a Ms Tarasoff dated a Mr Poddar. Both attended UC Berkeley, then probably (with Height-Ashbury in nearby San Francisco) the world centre of free love. Mr Poddar, an Indian, was outraged that Ms Tarasoff was going out with other men. He told his psychologist,an employee at Berkeley, that he was going to get a gun and kill Ms Tarasoff. The university told police, but did not let Ms Tarasoff know.

Subsequently, Mr Poddar killed Ms Tarasoff, and not surprisingly her family then sued Berkeley, and were successful.

The California Supreme Court set the bar for therapists:

When a therapist determines, or pursuant to the standards of his profession
should determine, that his patient presents a serious danger of violence to
another, he incurs an obligation to use reasonable care to protect the intended
victim against such danger. The discharge of this duty may require the therapist
to take one or more of various steps, depending upon the nature of the case.
Thus it may call for him to warn the intended victim or others likely to apprise
the victim of the danger, to notify the police, or to take whatever other steps
are reasonably necessary under the circumstances.

It has been known for family lawyers to be told these types of threats by clients. If family lawyers do not make a decision and notify police or the intended victim in appropriate cases, they may be held to breach the duty of care that they have to the intended victim and may have been (by their omission) partially responsible for the death or injury of that person. It has certianly been suggested to me over the years that family lawyers have an ethical obligation to make the notification.

It is certainly a matter of controversy both here and in the USA as to whether there is an exception to legal professional privilege and make the notification. Some practitioners are firmly of the view that there cannot be any such exception.

Laws such as that proposed that would clearly enable lawyers in those circumstances to report matters to police are welcome. Whether it should be an offence not to report, is another matter entirely. The element of compulsion means that a lawyer, who using their professional judgment considers that it is not "likely" that death or injury will be caused, will have to seriously question not reporting it to police for fear of being prosecuted; and on balance would probably report.

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