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Taskforce releases coercive control recommendations for the legal profession

The Women’s Safety and Justice Taskforce recently released its report, ‘Hear her voice’, on how to best legislate against coercive control and whether a specific offence of ‘commit domestic violence’ is needed.

The report contains four parts and 89 wide-ranging and comprehensive recommendations, aimed at addressing coercive control in Queensland. The taskforce has recommended a staged approach to ultimately criminalising coercive control.

The taskforce heard examples of excellent legal advice and representation in matters involving domestic and family violence. The taskforce also reported hearing “many accounts” of negative experiences.1

It found that “the effectiveness of legal professionals … will be dependent upon their knowledge and understanding of the nuances of how coercive control is used”.2

Victims provided the taskforce with examples of legal practitioners perpetuating abuse on behalf of perpetrators, including in the form of “aggressive flurries of correspondence containing distressing demands on victims and leading to delay in the court process”.3

Throughout consultations, various stakeholders expressed concerns about the capacity of legal practitioners, magistrates and judges to understand the patterned nature of domestic and family violence and the context within which coercive control is perpetrated. The taskforce received strong feedback about the need for legal practitioners to improve their knowledge and capability to appropriately respond in matters involving coercive control.4

A number of recommendations refer to, or are aimed at, legal practitioners and Queensland Law Society specifically. These include:

Recommendation 38: The Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence request the Law Admissions Consultative Council to reconsider the new Prescribed Areas of Knowledge requirement for undergraduate students who want to progress to admission to practise law that was to commence on 1 January 2021 and was subsequently deferred indefinitely.

The Attorney-General Minister for the Prevention of and Minister for Justice, Minister for Women and Domestic and Family Violence should advocate for the new Prescribed Areas of Knowledge requirement to include that students study the impact of laws on Aboriginal and Torres Strait Islander peoples since colonial times, Indigenous perspectives and cultural competency, and the substantive law relating to domestic and family violence, including coercive control and its nature and impact on victims, the community, and the study and practice of law.

Courses relating to the experiences of the Aboriginal and Torres Strait Islander peoples should be developed and delivered by Aboriginal and Torres Strait Islander peoples or Aboriginal and Torres Strait Islander Community Controlled Organisations, or both.

Recommendation 39: The Queensland Government work with the Bar Association of Queensland and Queensland Law Society to ensure that all lawyers in Queensland have a current understanding of the nature and impact of domestic and family violence, including coercive control, the substantive and procedural law, and how to refer clients to services and supports.

Recommendation 40: The Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence, in consultation with Queensland Law Society and Bar Association of Queensland, amend the Queensland Law Society Administration Rule 2005 and the Bar Association of Queensland’s Administration Rules to require all lawyers in Queensland to regularly complete continuing professional development (CPD) points in domestic and family violence and trauma-informed practice as a requirement of retaining their practising certificates.

Recommendation 41: The Office of the Director of Public Prosecutions and Queensland Police Service in relation to police prosecutors, Legal Aid Queensland, and community legal centres, including the Aboriginal and Torres Strait Islander Legal Service, require all legal staff to participate in regular training on the nature and impact of domestic and family violence, as well as on the relevant law.

Training will include an understanding of local support services for both victims and perpetrators and how to refer people to them. Participation in training should be recorded as part of continuing professional development and reported in each organisation’s annual report.

Recommendation 42: Queensland Law Society ensure that the specialist accreditation schemes for criminal law and family law include a requirement for lawyers to have specialist understanding of the nature and impact of domestic and family violence, the relevant law, the local support services available for both victims and perpetrators, and how to refer clients to services and supports.

Recommendation 43: Legal Aid Queensland require that lawyers on its preferred supplier lists for criminal, family law and civil law participate in regular training on the nature and impact of domestic and family violence, as well as the substantive and procedural law. Training should include an understanding of the local support services and how to refer to them. Participation in training should be recorded and reported in its annual report.

Recommendation 44: Queensland Law Society and the Bar Association of Queensland ensure that supports and services provided to lawyers to help them navigate ethical issues include a focus on the complex ethical issues likely to arise both in domestic and family violence-related legal practice and from domestic and family violence across all practices.

Recommendation 45: Queensland Law Society and Bar Association of Queensland promote and encourage lawyers practising in domestic and family violence-related areas of the law and across all areas of practice to access services and supports for ongoing and early support and assistance, such as the QLS ethics advice service, district legal committees, and ethics-focused professional development.

Recommendation 46: Legal Aid Queensland and Queensland Law Society update the Domestic and Family Violence Best Practice Framework to incorporate changes that result from this report and promote greater use of the Framework across all parts of the legal profession including government lawyers and members of the Bar.

Recommendation 47: Queensland Law Society and the Bar Association of Queensland develop and implement a trauma-informed practice framework for practice for legal practitioners in Queensland.

QLS has consistently supported ongoing education of legal professionals on domestic and family violence and recognises this as critical to developing practitioners’ ability to identify risk and respond appropriately.

QLS encourages practitioners to undertake ongoing education on domestic and family violence and offers an extensive range of education opportunities for practitioners to enhance their skills in this area.

As recognised in the taskforce report, in 2020 QLS collaborated with Legal Aid Queensland in producing the Domestic and Family Violence Best Practice Framework which aims to guide and support both legal and non-legal practitioners when dealing with matters impacted by domestic and family violence.

In addition, following recommendations from the Australian Law Reform Commission and ongoing work with the Federal Attorney-General’s Department to enhance the family safety competency of legal practitioners, QLS has examined options for incorporating domestic and family violence within the existing CPD scheme.

In 2021, following approval by QLS Council, QLS amended the current list of topics under the core area, Professional Skills, to include Family Violence and Safety. The specific inclusion of this topic is hoped to highlight and promote the importance of this skill to all practitioners.

QLS will formally respond to the recommendations outlined above in early 2022.

Natalie De Campo is a Senior Policy Solicitor at Queensland Law Society.

Footnotes
1 Hear her voice, Women’s Safety and Justice Taskforce, Volume 3, page 596.
2 Hear her voice, Women’s Safety and Justice Taskforce, Volume 3, page 595.
3 Hear her voice, Women’s Safety and Justice Taskforce, Volume 3, page 596. 
4 Hear her voice, Women’s Safety and Justice Taskforce, Volume 3, page 597.

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