Page 1148 - Week 04 - Thursday, 17 March 2005
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and there always will be concerns in relation to just how far such legislation should go, because there are significant issues involved, as report 4 of the scrutiny of bills committee brings out. We now have a human rights act and a majority government and the report raises some very significant issues concerning that act.
I draw members’ attention to page 1 of report 4 of the scrutiny of bills committee. I will just make comments in relation to the boxed areas, if members would like to go to them. The report states:
This is a Bill to amend the Protection Orders Act 2001, in the first place to rename it the Domestic Violence and Protection Orders Act 2001, and then to make a number of amendments. The amendments do not alter the character of the law, but extend and modify its operation in various ways. In particular, the bill would: expand the definition of domestic violence and of “relative”; in relation to domestic violence orders, expand the definition of personal injury to include “nervous shock”; and increase the punishment for a breach of an order.
The opposition has an amendment in relation to the personal injury part. I will not waste the time of members by going through it now. The scrutiny report talks on page 2 and the first half on page 3 about how human rights are affected and how, when one looks at the situation from the perspective of a victim, those rights actually come into play. I think that it is important to make that point, because if we enact criminal law, and this is a criminal law, the rights of victims are very much of paramount consideration.
The Human Rights Act does have a number of sections which, quite clearly, justify the doing of things in relation to victims. Indeed, the domestic violence legislation takes it to a far greater plane than any other area of the criminal law. In fact, the Chief Minister referred to it as a higher level of protective response. Some parts of the law that has come out of domestic violence legislation could, in some instances, be applied to toughen up the law in relation to ordinary, non-domestic violence criminals as well.
The report goes on to state:
There are, then, several lines of justification for a domestic violence law. This is not in question. But when attention is paid to the precise detail of a domestic violence law, and in particular to the ways in which such a law bears upon the respondent to an order made under such a law, other rights may come into focus. The law may operate to impose significant limitations on the right to property, or the liberty of movement of a respondent, or to authorise a deprivation of liberty. A respondent might argue that her or his privacy, or their right to be part of a family is adversely affected.
This is far from a complete rights framework for an analysis of a domestic violence law, but it shows, as is commonly the case, that here rights are in conflict one with another.
That is very much the case. Perhaps that was a situation where the Chief Minister might have said that the elements of this rule were not necessarily consistent with the Human Rights Act but, nevertheless, should be enacted because they are needed in the community interest. The scrutiny report goes on to say:
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