The Queensland and Commonwealth governments rightly acknowledged the issues the COVID-19 lockdown presented for persons living in relationships affected by domestic violence, increasing funding for domestic violence and legal services.
However, it is unfortunate that Queenslanders who feel their personal safety is at risk from other persons in non-domestic settings, such as neighbourhoods and workplaces, still do not have the benefit of a modern, accessible protective mechanism in legislation.
Against a background of anxiety and fear for health and livelihoods in both the neighbourhood and workplace scenarios, it does seems likely that an increased number of disputes will arise in the coming months and that a percentage of those will turn nasty.
The Beattie Government referred a review of the venerable Peace and Good Behaviour Act 1984 to the Queensland Law Reform Commission (QLRC) in 2004. A discussion paper and considerable consultation led to a 518-page report in December 2007. A draft Personal Protection Bill 2007, based upon the recommendations made, was also presented.
This was about the time I began working at Suncoast Community Legal Service. I recall there being some excitement about the Bill within the sector and that this was shared by local members and electorate office staff who often speak to community members distressed by the actions of their neighbours.
For reasons that were not apparent, the Bill simply never got passed and was gradually forgotten. I went looking for it a year or so back and was disappointed to find it appeared to have dropped off the Office of Parliamentary Counsel’s books altogether.
The QLRC report found that the Peace and Good Behaviour Act 1982 was not an effective protection mechanism for members of the Queensland community.
Amongst many other findings, it suggested that a replacement Act needed much wider grounds and a simpler procedure, and that it needed to make clear the types of conditions that magistrates could impose when making an order. It proposed a legislative mechanism which largely resembled the Domestic and Family Violence Act, with necessary distinctions for the different context.
Probably the biggest problem the report found was that intimidation, verbal abuse and harassment, no matter how bad or ongoing, are not grounds for an order under the Peace and Good Behaviour Act. There has to be threats of assault, injury or property damage which result in the victim fearing the person, or alternatively, conduct which makes the victim fearful of property damage.
It is a high bar and most of the people who come to see us for advice at the community legal service, despite their obvious distress, are unlikely to reach it. Often they have been referred to us by police who couldn’t find enough to charge the aggressor with. Their expectation is that the legislative criteria for this civil remedy will be similar in breadth to the more widely-understood definitions in the Domestic and Family Violence Act. They are understandably disappointed when we can’t do anything for them.
Even worse, in the years since the 2007 QLRC report it has become clear from decided appeal cases that the required ‘threat’ of violence cannot be implied from actual acts of violence. There had been a tendency for magistrates to err on the side of caution and make an order in circumstances in which a person has already assaulted someone and the victim is in fear of further assaults.
Since District Court case of Soldner & Anor v Smith & Anor (2011) QDC 319, it has been clear that there has to be a new, overt threat of violence before an order can be made, with Searles DCJ saying:
“The Act is not designed to deal with acts of violence to person or property which have already occurred. That is the province of the criminal law which will assist the appellants if warranted.”
In short, you can get a peace and good behaviour order if you are threatened with assault, but not if you are actually assaulted! At this point the legislation was clearly so defective as to require urgent amendment. Unfortunately it still hasn’t happened.
There may have been considerable discussion and debate around the Personal Protection Bill 2007 within the many and varied governments which have held power over this 13-year period. There may have been good reason for the delay in passing it.
On the face of it, however, it simply seems to have failed to ever become a priority.
The easing of COVID restrictions and return to work might stop a few neighbourhood disputes bubbling over, but the new and stressful circumstances we find ourselves in in the workplace might present just the opportunity for this important piece of protective legislation to finally come to the top of the list.
This article appears courtesy of the Queensland Law Society Access to Justice and Pro Bono Committee. Julian Porter is the Managing Solicitor at Suncoast Community Legal Service in Maroochydore and a member of the committee. If you have an interest in this topic, or other access to justice topics, and want to share your views, please email firstname.lastname@example.org. Elizabeth Shearer is Deputy President of QLS, Chair of the committee and Legal Practitioner Director at Shearer Doyle Law.