Document #1028033
IRB – Immigration and Refugee Board of Canada (Author)
In its February 1995 Final Report "From
Rhetoric to Reality: Ending Domestic Violence in Nova Scotia," the
Law Reform Commission of Nova Scotia discussed domestic violence in
New Zealand, stating that:
New Zealand has a Domestic Protection Act which was passed in 1982 after much debate. It was passed as a family law Act which sought to provide specific remedies for domestic violence because the existing criminal law remedies were inadequate and inappropriate for domestic violence[98]. The Act provides remedies for men or women who were or had been living together in the same household. It gives the court jurisdiction to make non-violence, non-molestation, occupancy and tenancy orders and to recommend that either party attend counselling. It is important to note that while police can arrest, detain and keep a person in custody for 24 hours ("a cooling off period") for breach of the order, the breach is not itself a criminal offence. People concerned about civil liberties have been satisfied with the fact that the person is to receive notice of the order and is given the right to make a phone call while in detention. Equally, there is opposition to this Act by people who felt that breach of the order should be a criminal offence. When passed, the Act was seen as a way to avoid the problems in the criminal law process which prevented people from using the courts. Evaluation of the Act and its effectiveness suggests, that this has not had the desired effect. According to recent commentary on the law in New Zealand:
The 'reality' that the Act has to deal with is that domestic violence is now and will continue to be the highest single category of violence reported to the police. In 1988, 1,675 married women and 1,076 women living in de facto relationships, applied for protection from partners. The number of non-violence orders increased by 66% from 1984 to 1986...[It was] submitted that, stated briefly, the policy concerns of the legislators for the Domestic Protection Act were to try to preserve the family unit as a basic unit in society, to ameliorate the social and person cost of domestic violence and to protect property rights. The practice of the Act illustrates that these concerns are not always compatible.
Critics suggest that the problem in New Zealand has arisen from the fact that the Family Courts have emphasized maintenance of the family unit and relationships which make it difficult for women to obtain protection orders. The problem appeared to be due to judicial discretion and in the refusal to confirm the interim emergency protection orders. The refusal has been described as:
The rejection of the criminal law response to domestic violence has led to an emphasis on domestic violence as a family relationship problem or at times, a personal problem of the man because of alcohol or substance abuse.
One of the results of the criticism was that in March 1987, a report of the Ministerial Committee of Inquiry into Violence concluded that the concept of family privacy had the effect of legitimizing violent behaviour and there is no indication of social disapproval. A Domestic Dispute Policy was developed in 1987 which was essentially a zero tolerance policy mandating arrest in all cases where a court order has been breached or where the woman was in danger. She also was not be required to give evidence to support the charge unless there was no other evidence. In addition, police officers were required to provide referrals to support services. Despite this Policy, a recent Report suggests, that this has not resulted in any change[101]. The main point of criticism is that, despite policies and directives the judicial attitude continued in many cases to characterize the problem as one of family dysfunction and that the violence women experienced was minimalized and trivialized. It has been suggested that the New Zealand experience highlights the importance of the judiciary in ensuring an effective delivery of the justice system:
Judicial attitudes convey powerful messages to victims and abusers alike. They portray the justice system's commitment to stopping domestic violence. It is, therefore essential that judges convey unequivocal messages that the existence of violence in a relationship is, in fact, a real problem (Feb. 1995).
The attached 1996 Waikato Law
Review article by Nan Seuffert entitled "Lawyering for Women
Survivors of Domestic Violence" presents
the findings and conclusions of in-depth qualitative interviews with fifteen non-Maori women who are survivors of domestic violence[12] and of interviews with lawyers who represent survivors of domestic violence.[13] For lawyers and others interested in women's access to justice, these interviews provide valuable feedback about women's experiences of legal representation. The women report that along with police, judges[14] and society generally, their lawyers hold attitudes which tend to minimise and trivialise domestic violence and to blame victims for the violence. The women also report that many of their lawyers did not understand the dynamics of domestic violence and often neither believe their stories nor provided them with adequate advocacy. Based on the experiences of the women interviewed, these attitudes affect lawyer-client interactions and legal representation in ways that are detrimental to the women.
The 1997 attachment from the North Shore
Women's Centre in Auckland offers general information on abusive
relationships, then provides information on community resources,
and 9 pages of centres, NGOs, shelters and other places of
assistance in Northland, Auckland, Waikato/King Country, Bay of
Plenty, Gisbourne/Hawkes Bay, Taranaki, Whanganui, Wairarapa,
Manawatu, Wellington, Nelson/Marlborough, West Coast, Canterbury,
South Canterbury, Dunedin and Southland.
New Zealand passed the Domestic
Protection Act 1982 No. 120, which went into effect on 1 March
1983, and the Domestic Protection Acts 1982-1987 (By
Parliamentary Counsel) No. 001, which were amended in 1983,
1985, 1986, 1987 and 1994 (GP Legislation n.d.). The Domestic
Violence Act 1995 No. 086 was passed in 1995 and amended in
1998 by the Domestic Violence Amendment Act 1998 No. 41,
which can be accessed on the Internet at http://rangi.knowledge-basket.co.nz/gpacts/public/text/
1998/an/041. html.
Below please find the index of the New
Zealand Domestic Violence Act 1995 No. 086, available on
the Internet at http://rangi.knowledge-basket.co.nz/gpacts/public/text/1995/an/086.html.
Domestic Violence Act 1995 086
Analysis
Title
1. Short Title and commencement
I: Preliminary Provisions
2. Interpretation
3. Meaning of "domestic violence''
4. Meaning of "domestic relationship''
5. Object
6. Act to bind the Crown
II: Protection Orders
Applications
7. Application for protection order
8. Contents of application
9. Applications by minors
10. Applications against minors
11. Applications on behalf of persons
lacking capacity
12. Applications on behalf of certain other
persons
13. Application without notice for
protection order
Scope of Protection Orders
14. Power to make protection order
15. Existence of other proceedings not to
preclude granting of protection order
16. Protection of persons other than
applicant
17. Protection from respondent's
associates
18. Mutual orders
Standard Conditions of Protection Orders
19. Standard conditions of protection
order
20. Further provisions relating to standard
condition prohibiting contact
Standard Condition Relating to Weapons
21. Standard condition relating to
weapons
22. Court may dispense with, modify,
discharge, or re-impose standard condition relating to weapons
23. Further provisions relating to powers
conferred by section 22
24. Further provisions relating to effect
of standard condition relating to weapons
25. Retention, return, and disposal of
surrendered weapons and licences
26. Arms Act 1983 not affected
Special Conditions of Protection Orders
27. Court may impose special conditions
28. Further provisions relating to certain
special conditions
Programmes
29. Programmes for protected persons
30. Commencement of section 29
31. Joint programme sessions
32. Power to direct respondent or
associated respondent to attend programme
33. Terms of direction that respondent or
associated respondent attend programme
34. Registrar to notify programme provider
to whom respondent or associated respondent is referred
35. Programme provider to arrange meeting
with respondent or associated respondent
36. Direction to attend programme made on
application without notice
37. Court may confirm or discharge
direction
38. Respondent or associated respondent
excused from attending
39. Notice of absence from programme
40. Notice of conclusion of programme
41. Programme provider may request
variation of direction
42. Judge may call respondent or associated
respondent before Court
43. Confidentiality of information
disclosed to programme provider
44. Programme providers' fees and
expenses
Duration, Variation, and Discharge of Protection Orders
45. Duration of protection order
46. Power to vary protection order
47. Power to discharge protection order
48. Variation or discharge on behalf of
protected person
Enforcement of Protection Orders
49. Offence to contravene protection
order
50. Power to arrest for breach of
protection order
51. Release of person arrested
III: Orders Relating To Property
Occupation Orders
52. Application for occupation order
53. Power to make occupation order
54. Effect of occupation order
55. Power to vary or discharge occupation
order
Tenancy Orders
56. Application for tenancy order
57. Power to make tenancy order
58. Effect of tenancy order
59. Power to discharge tenancy order and
revest tenancy
General Provisions Relating to Occupation Orders and Tenancy Orders
60. Application without notice for
occupation order or tenancy order
61. Procedure for occupation orders and
tenancy orders
Ancillary Furniture Orders
62. Application for ancillary furniture
order
63. Power to make ancillary furniture
order
64. Effect of ancillary furniture order
65. Power to vary or discharge ancillary
furniture order
Furniture Orders
66. Application for furniture order
67. Power to make furniture order
68. Effect of furniture order
69. Power to vary or discharge furniture
order
Applications without Notice for Furniture Orders
70. Application without notice for
ancillary furniture order or furniture order
General Provisions Relating to Property Orders
71. Applications for property orders by
minors who are not children
72. Applications for property orders
against minors
73. Applications for property orders on
behalf of persons other than children
74. Notice to persons with interest in
property affected
75. Protection of mortgagees, etc.
IV: Procedure
Temporary Orders
76. Respondent to notify intention to
appear
77. Procedure where respondent does not
require hearing
78. Court may require hearing before order
becomes final
79. Application of sections 76 to 78 to
other affected persons
80. Procedure where hearing required
General Provisions
81. Court may appoint lawyer
82. Power of Court to call witnesses
83. Conduct of proceedings
84. Evidence
85. Standard of proof
86. Orders by consent
87. Explanation of orders
88. Copies of orders to be sent to
Police
89. Information on service of certain
orders to be communicated to Police
90. Police to consider exercise of powers
under Arms Act 1983
Appeals
91. Appeals to High Court
92. Application of provisions relating to
minors, etc.
93. Appeals to Court of Appeal
94. Appeals to be heard as soon as
practicable
95. Effect of appeal
V: Enforcement Of Protection Orders Overseas And Foreign Protection Orders
Enforcement of New Zealand Orders
Overseas
96. Enforcement of New Zealand orders
overseas
Enforcement of Foreign Protection Orders
97. Registration of foreign protection
orders
98. Copies of registered foreign protection
orders to be sent to Police
99. Effect of registration
100. Variation of registered foreign
protection order
101. Registered foreign protection orders
not to be enforced in certain circumstances
102. Evidence taken overseas
103. Proof of documents
104. Depositions to be evidence
105. Prescribed foreign countries
106. Evidence of orders made in foreign
country
VI: No-Publication of Information Relating to Protected Person on Public Registers
Interpretation
107. Interpretation
Applications for Directions
108. Protected person may apply for
direction that identifying information on public register not be
publicly available
109. Agency to determine application
110. Agency to notify applicant of
decision
111. Information not to be disclosed
pending determination of application or complaint
Effect of Direction
112. Effect of direction
113. Direction not applicable to relevant
information subsequently included in register
Duration of Direction
114. Duration of direction
115. Registrar to notify agency of making
or discharge of protection order
Disclosure of Relevant Information with Consent
116. Disclosure of relevant information
with consent of protected person
Other Enactments Not Affected
117. Other enactments not affected
Complaints to Privacy Commissioner
118. Complaints to Privacy Commissioner
119. Investigation of complaint
120. Application of certain provisions of
Privacy Act 1993
Regulations
121. Regulations
Codes of Practice
122. Codes of practice
123. Application of certain provisions of
Privacy Act 1993
124. Effect of code
VII: Miscellaneous Provisions
Restriction on Publication
125. Restriction on publication of reports
of proceedings
Rules and Regulations
126. Rules of Court
127. Regulations
Saving
128. Matrimonial Property Act 1976 not
affected
Repeals and Consequential Amendments
129. Repeals
130. Amendments to Arms Act 1983
131. Amendment to Children, Young Persons,
and Their Families Act 1989
132. Amendment to Electoral Act 1993
Transitional Provisions
133. Transitional provisions
Please consult Country Conditions for
1998 for general information on the situation of women.
This Response was prepared after
researching publicly accessible information currently available to
the Research Directorate within time constraints. This Response is
not, and does not purport to be, conclusive as to the merit of any
particular claim to refugee status or asylum.
References
GP Legislation. n.d. " Lists of Acts in
the GP Legislation collections: D" http://rangi.knowledge-basket.co.nz/gpacts/maps/acts_d.html
[Accessed 4 Nov. 1999]
Law Reform Commission of Nova Scotia.
February 1995. From Rhetoric to Reality: Ending Domestic
Violence in Nova Scotia. (Final Report) http://www.chebucto.ns.ca/Law/LRC/responsesV2.html#uk
[Accessed 4 Nov. 1999]
New Zealand. 1998. Domestic Violence
Amendment Act 1998 No. 41. http://rangi.knowledge-basket.co.nz/gpacts/public/text/1998/an/041.html
[Accessed 4 Nov. 1999]
New Zealand. 1995. Domestic Violence
Act 1995 No. 86. http://rangi.knowledge-basket.co.nz/gpacts/public/
text/1995/an/086.html.[Accessed 4 Nov. 1999]
Waikato Law Review. 1996. Nan
Seuffert. "Lawyering for Women Survivors of Domestic Violence." http://www.waikato.ac.nz/law/wlr/special_1996/1_seuffert.html
[Accessed 4 Nov. 1999]
Attachments
North Shore Women's Centre, Auckland.
1997. Domestic Violence. http://cody.dmd.co.nz/~nswc/domestic.htm
[Accessed 3 Nov. 1999] (13 pages)
Waikato Law Review. 1996. Nan
Seuffert. "Lawyering for Women Survivors of Domestic Violence." http://www.waikato.ac.nz/law/wlr/special_1996/1_seuffert.html
[Accessed 4 Nov. 1999] (39 pages)