Domestic violence has been a hot topic in South East Queensland for a long time. In 2016, the Criminal Code was amended to introduce new offences including Strangulation, circumstances of aggravation for domestic violence related offences and also increased the maximum penalty for repeat offenders.
On 1 February 2017, Teresa Bradford was violently murdered by her husband, David Bradford, after he was released on bail for charges against her including choking and breaching his domestic violence order. The outcry from the community was significant. People raised concerns about the conduct of bail proceedings in the Queensland court system. There was a notable shift in the dealings of police and courts with domestic violence proceedings. Police were less willing to release persons on notices to appear or watch house bail, and a number of individual Magistrates adjusted their sentencing approaches to reflect the community concern. There was increased discussion in courts about the harm and significant of domestic violence in the Queensland community.
The Queensland Government sought input from interested parties, including domestic violence action groups, the Queensland Law Society and the Queensland Police Service. After considering these submissions, the Queensland Government has now drafted the Bail (Domestic Violence) and Another Act Amendment Bill 2017. The Bill proposes some significant changes to the laws affecting domestic violence related offences. Some of the most significant changes include:
- Designating that a domestic violence offence will be a “show cause” argument. This has very significant ramifications for any application for bail as it requires that bail is not to be granted unless the defendant can establish “why detention in custody is not justified”. There are a broad range of arguments that can be raised in a “show cause” situation, but any legislation that shifts from the presumption that citizens are entitled to go about their business freely is a significant curtailment of liberties, and in some respects flies in the face of the presumption of innocence. It also creates additional difficulties for clients who may wish to plead not guilty to an offence, as if their bail is refused then they may be subject to a lengthy period of remand until the matter is finalised at trial.
- Requiring the Court or a police officer to consider whether a defendant should be required to wear a tracking device. This is a significant condition to be including. A “tracking device” is defined as “an electronic device capable of being worn, and not removed, by a person for the purpose of the Queensland police service finding or monitoring the geographical location of the person.” Tracking a person’s movement or mandating that they wear electronic is a significant curtailment on a person’s freedom and civil liberties. It is unclear yet how this practice will be funded, but it would have to be expected that it would be an expensive exercise to acquire and maintain any device that does this. Tracking devices have previously only been used in Queensland for serious violent and sexual offenders and there has been significant criticism of this practice as a breach of human rights.
- Mandating the the Court or a police officer must consider including a bail condition that a defendant is not to approach the complainant or any place that she lives or frequents. This is already common bail practice in most Queensland courts.
- Aggrieved persons are now required to be informed when a defendant is released and when they are required to return to court. They are also granted rights to information about a prisoner’s eligibility and discharge under any corrective services order.
Whilst it is positive to see recognition of the significance and harm caused by domestic violence in the community, many of these amendments are border dangerously close to impeaching our civil liberties. In circumstances where there are such significant risks to a person’s freedom, strong advocacy and preparation for bail hearings is more essential than ever for defence advocates practising criminal law in Queensland. Sadly, the domestic violence framework is occasionally abused by people for improper purposes. Instances of vexatious complaints undermine the validity of experience of domestic violence victims and create hardship and distress for all persons involves. Hopefully, the legislative measures in the Bail (Domestic Violence) and Another Act Amendment Bill 2017 will be accompanied by other social measures, such as a increasing access to support services for victims and perpetrators and providing education to break the cycle of domestic violence.