Domestic Violence Orders Creep Towards Being Part of a Criminal History

Should the making of a domestic violence order cause anyone to lose their job? A proposed new law opens the door for that to happen.

Domestic violence cases in Queensland were designed to be a private matter. They are civil proceedings, not criminal. They are held in a closed court. It is illegal to publish the details, or the names of the people involved. The vast majority[1] of orders are made by consent, without admitting any allegation. People can take their Order, be of good behaviour, and carry on with their lives.

Along comes a new law, proposed for screening workers who will have jobs caring for disabled people. Their “domestic violence information”[2] will be taken into account in deciding whether they are allowed to do that type of work.[3]

The new laws are in a Bill called the Disability Services and Other Legislation (Worker Screening) Amendment Bill 2020. Although it is a Queensland Bill, it is part of a proposed national scheme.

This will change the way domestic violence cases are run. The legal advice to respondents will be that an Order might affect their future employment. If it applies to disability work, how long before it applies to “Blue Card” work with children as well? Respondents will be more likely to resist, more likely to take the case to a hearing, where their spouse or family member has to give evidence and be cross-examined. This is not a development in the best interests of victims. It will also add to the workload of the courts.

A perverse, and unintended, result may be to deter some victims from applying for help. People want to be protected from domestic violence. They often want to maintain a relationship with the perpetrator. They may not want their partner to lose their job, and so deprive the family of an income.

Conversely, there are also vindictive people. Once it becomes known that a domestic violence order might cost someone their job, then the threat of applications and cross-applications will become weapons in family disputes.

It is also hard to see how “domestic violence information” can be used fairly by the screeners. Will they have both sides of the story? Will they be given untested, hearsay statements? Will it be remembered that consent to an Order is not an admission of any wrongdoing?

Unfairness will be caused to people who consented to Orders before the law was changed. If they had known that an Order could result in them losing a job, or being screened out of working in their field, then they might have chosen to put up a fight, to put their side of the story into evidence. It is too late for them now. In that way, the new law has a retrospective effect.

When information and laws are designed for one purpose, it can be unfair to take those findings and apply them in a context for which they were never designed.

The consequences of this development have not been thought through.

[1] This is based on anecdotal evidence and my own observations. There were 49,124 Orders made in the year ending 30 June 2019 according to the Magistrates Court’s Annual Report at Appendix 3. I have not been able to turn up any published figures on the number of contested hearings. I would be grateful if anyone could point me to the statistics.

[2] domestic violence information, about a person, means information about the history of domestic violence orders made against the person under the Domestic and Family Violence Protection Act 2012.

[3] In what will be the new section 88 inserted by Clause 11 of the Bill.

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