Editorial: Glenn report's burden of proof change a step too far

Billionaire businessman Owen Glenn. Photo / Dean Purcell

Of the many woes identified by the first report of Sir Owen Glenn's independent inquiry into family violence, none comes in for more attention than the court system. Damningly, it and those working within it, including judges, lawyers and psychologists, are deemed to be "dysfunctional and mostly not working".

It is hardly surprising, therefore, that some of the most radical notions in The People's Report focus on fundamental change to that system. Unfortunately, they tend, as can be the case with highly emotive issues, to involve an over-reach that should be recognised when a list of specific recommendations is issued this year.

The most contentious idea involves changing the burden of proof so it lies with the perpetrators of child abuse and domestic violence, not the victims. Allied to this is a review of the adversarial system that is said to place an excessive burden of proof on victims, and to lead often to drawn-out proceedings that further disadvantage victims and put many into significant debt. The report says people with experience of the present model had indicated they would favour a more collaborative system.

The report is not totally out of step in advancing these views. A flipping of the deeply embedded precept of the burden of proof, whereby the necessity to provide proof lies with whoever lays charges, is no longer beyond the pale. Abusive parents must now prove to Child, Youth and Family that they are no longer a threat. As well, bail amendment legislation requires a person on a murder charge or repeat violence, class A drug or sex charges to persuade a judge that the community will be safe if they are released. New Zealand's appalling family violence record -- the police respond to a call relating to this every seven minutes, according to the report -- convinces some that there is good reason to further override the principle.

But any such impulse should be resisted. Arguably, the two steps taken by the Government are valid responses to extraordinary circumstances where there is a clear danger to members of society. Both do not involve such a sweeping inversion of the burden of proof principle as would be the case if it were applied to all alleged perpetrators of child abuse and domestic violence.

The precept that a defendant has the right to be considered innocent until proven guilty is too fundamental to our legal system and too strong a safeguard against wrongful conviction to be so comprehensively dismissed.

That is not to say the legal system should not become more responsive to the victims of family violence. In that respect, the adversarial system of justice, with its aggressive contest between prosecution and defence lawyers, is certainly open to tweaking. A more inquisitorial approach would introduce a greater focus on the the victim, and almost certainly be faster, fairer and more efficient. But this is already happening, thanks to the introduction of the mediation-based family dispute resolution process in the Family Court. It would be a mistake to take that shift too far. It remains important that justice is seen to be done.

This rejigging may help to overcome another somewhat surprising concern that has garnered little attention in the many other reports on family violence. This is the view that most judges, lawyers and psychologists are "at times unprofessional", and contribute to dangerous situations. Again, the trauma suffered by many victims may have played into such a view. Nonetheless, it is one shared by many of the 500 people whose experiences form the basis of The People's Report. The ultimate test for the Glenn inquiry is to use these views to compile a cogent set of recommendations.