Introduction
This complaint is from Peter Zohrab and Kevin Crump. At least one
– and probably both – of us would like to present our complaint
in person.
Executive Summary
Clause 28 of the Domestic Violence (Programmes) Regulations 1996 ("the
Regulations") is, in many respects, an invalid use of the regulation-making
power created by section 127 of the Domestic Violence Act 1995 ("DVA").
We submit that
1. it is not in accord with general objects and intentions of the DVA;
2. it trespasses unduly on personal rights and liberties;
3. it appears to make some unusual and unexpected use of the powers
conferred by the DVA;
4. it contains matters more appropriate for parliamentary enactment;
and
5. it calls for elucidation for other reasons concerning its purport.
The basic issue is that this clause authorises an indoctrination of
adult protected persons in an anti-male and unevidenced theory of Domestic
Violence which is not authorised by the DVA.
This issue may be raised in a human rights and defamation court case
against the Government by Peter Zohrab. However, the relief sought there
will be damages, rather than specific performance or judicial review,
so there is no real overlap with this complaint. Of course, if this
complaint is not successful, the authors reserve their right to contemplate
going to court on the issue of whether this regulation is ultra vires
the DVA.
Arguments under specific grounds
The specific clause of the Domestic Violence (Programmes) Regulations
1996 which is the focus of this submission is clause 28, "Goals
of programmes for adult protected persons."
Section 127 of the Domestic Violence Act 1995 states that the "Governor-General
may from time to time, by Order in Council, make regulations" ...
"(m)aking provision for organisations and persons to be approved
to provide programmes, and for the approval of programmes for the purposes
of this Act...."
In order to determine whether regulations that have been made under
section 127 of the DVA actually do further the purposes of the DVA,
we need to refer to the stated purposes of the DVA in relation to programmes.
Section 2 (the Interpretation section) provides a definition of the
word "Programme." The part of that lengthy definition which
relates specifically to programmes for protected persons (other than
children) is the following:
"'Programme', means a programme ... (t)hat, ... (i)n the case
of a programme provided to a protected person (other than a child),
has the primary objective of promoting (whether by education, information,
support, or otherwise) the protection of that person from domestic violence."
Therefore, the relevant purpose of the DVA is that programmes for
protected persons should have the primary objective of promoting (whether
by education, information, support, or otherwise) the protection of
that person from domestic violence.
The general issue, therefore, is the extent to which clause 28 of
the Regulations actually does further the purpose of the DVA by having
the primary objective of promoting (whether by education, information,
support, or otherwise) the protection of adult protected persons from
domestic violence.
Clause 28 of the Regulations reads as follows:
|
In terms of Standing Order 310 "Drawing attention
to a regulation" of the Standing Orders of the House of Represenatives
2008, this submission argues that clause 28 of the Domestic Violence
(Programmes) Regulations 1996 :-
1. is not in accordance with the general objects and intentions of the
statute under which it is made;
2. trespasses unduly on personal rights and liberties;
3. appears to make some unusual and unexpected use of the powers conferred
by the statute under which it is made;
4. contains matters more appropriate for parliamentary enactment; and
5. for other reasons concerning its purport calls for elucidation.
1. Lack of accord with general objects and intentions of the DVA
Of the 7 goals listed in clause 28 (2) of the Regulations, only 2
are fully concerned with promoting (whether by education, information,
support, or otherwise) the protection of adult protected persons from
domestic violence, with 1 being partly concerned with that aim. The
remaining 4 goals have nothing to do with promoting (whether by education,
information, support, or otherwise) the protection of adult protected
persons from domestic violence. Therefore, clause 28 of the Regulations
is not in accordance with the general objects and intentions of the
DVA with respect to programmes for adult protected persons, which are
that such programmes should have the primary (my emphasis) objective
of promoting (whether by education, information, support, or otherwise)
the protection of that person from domestic violence.
Specifically, goal (d) (To assist the protected person to assess safety
issues and to put in place strategies to maximise that person's safety)
and goal (g) (To assist the protected person to identify and explore
options for the future) do appear to be fully concerned with promoting
(whether by education, information, support, or otherwise) the protection
of adult protected persons from domestic violence.
However, goal (e), which partly refers to providing the protected
person with information about the availability, content and benefits
of programmes for protected persons who are children, and how to request
such programmes, is to that extent concerned with something other than
promoting (whether by education, information, support, or otherwise)
the protection of adult protected persons from domestic violence.
Moreover, the remaining goals (goals (a), (b), (c), and (f)) are totally
concerned with something other than promoting (whether by education,
information, support, or otherwise) the protection of adult protected
persons from domestic violence. Goal (a) has to do with the effects
of domestic violence – i.e. instead of dealing with its prevention,
it deals with issues that arise after it has already occurred. Goal
(b) purports to teach a theory or theories about the nature and effects
of domestic violence, with no indication that this will assist in promoting
the protection of adult protected persons from domestic violence. Goal
(c) is oriented towards the purported theoretical explication of past
domestic violence, rather than towards preventing future domestic violence.
Goal (f) purports to be about assisting adult protected persons to be
"realistic" about expectations of attitudinal and behavioural
changes in repondents or associated respondents, without there being
any indication that this will contribute to preventing future domestic
violence.
2. Trespassing unduly on personal rights and liberties
According to the document Making a Complaint to the Regulations Review
Committee, the first step under this heading is to establish that a
personal right or liberty exists. In this case, the right is the right
not to be discriminated against on the grounds of sex. This right is
affirmed by section 19 of the New Zealand Bill of Rights Act 1990 ("BORA"),
in combination with the Human Rights Act 1993, which lists the illegal
grounds of discrimination.
Goals (a), (b), and (c) use the words educating, informing, understanding,
and awareness in a context which implies that programme providers have
scientific, ideological, religious, or even mystical knowledge about
the nature, effects, and social, cultural and historical context of
domestic violence, without giving grounds for the belief that there
is unanimity about these issues, or who or what is the font of wisdom
on these issues.
In practice, it is ascertainable from readily available sources of
information that the only people who feel that they have certain knowledge
about these issues are Feminists who believe in the Duluth or "Power
and Control" model of domestic violence. There is no evidence for
this model, which emerges from a Lesbian Feminist conviction that men
are evil, rather than from scientific analysis of the data. If you search
for the phrase "evidence for the Duluth model" or the phrase
"evidence for the Power and Control model" on the Web, you
get no results, apart from a page discussing the absence of evidence.
Judge Jan Doogue, in her paper Domestic Violence: Reviewing the Needs
of Children (paper delivered at the 3rd Annual Child & Youth Law
Conference 2004, 1-2 April.), provides a reality check, by stating:
The Domestic Violence Act 1995 and s. 16B of the Guardianship Act
1968 were based on the classification of violence within the power and
control model. In my experience and that of other Judges this model
does not fit the profile of many cases coming before the Family Court
in New Zealand.
This unscientific model blames men for domestic violence. Therefore,
to the extent that the Regulations promote the teaching of this model,
they discriminate against men and defame men. This constitutes trespassing
unduly on personal rights of men.
There is concrete evidence that this misandry (man-hatred) is taught
on these programmes. For example, the Ministry of Justice publication
Women living without violence: An evaluation of programmes for adult
protected persons under the Domestic Violence Act 1995 ( http://www.justice.govt.nz/pubs/reports/2001/women_violence/index.html
) reports on an evaluation of two programmes for adult protected persons,
and states on page xii:
"Both programmes are based on the Duluth model which uses a
feminist analysis of domestic violence, develops understandings of violence
around the use of the power and control wheel and attempts to build
women's confidence and to empower them to take control of their lives."
The Duluth Model website (http://www.theduluthmodel.org/ -- last accessed
on 13 August 2009 ) states (possibly correctly) that:
"The Duluth Model is recognized nationally and internationally
as the leading tool to help communities eliminate violence in the lives
of women and children."
Please note:
1. There is no mention of eliminating violence from the lives of men;
2. The prominence of the Duluth model internationally is the result
of a political process, and no indication of its validity.
The webpage http://www.theduluthmodel.org/duluthmodel.php (last accessed
on 13 August 2009 ) further states that:
" The Duluth Model engages legal systems and human service agencies
to create a distinctive form of organized public responses to domestic
violence. It is characterized by:
• Clearly identifiable and largely shared assumptions and theories
about the source of battering and the effective means to deter it
• Empirically tested intervention strategies that build safety
and accountability into all elements of the infrastructure of processing
cases of violence
• Well-defined methods of inter-agency cooperation guided by advocacy
programs."
We draw the Committee's attention to the fact that the claims of empirical
testing refer to the intervention strategies, whereas the assumptions
and theories (crudely summarisable as "men are evil and women are
good") are not even claimed to have been subjected to empirical
testing.
The Feminist movement was what turned the topic of Domestic Violence
into an issue of public and political concern. Feminists consider Domestic
Violence to be a "Women's Issue," which appears to mean that
the issue should be approached politically, from the point of view of
the use that Feminists want to make of the issue, rather than scientifically,
as an issue to be looked at rationally and objectively.
We could spend a lot of time discussing the merits of these two ways
of looking at Domestic Violence. One of the authors of this complaint,
Peter Zohrab, is an expert on this issue, and has written extensively
on it. One way of summarising the issue is to ask committee members
to access the website http://www.csulb.edu/~mfiebert/assault.htm which
is an annotated domestic violence bibliography, compiled by Professor
Martin Fiebert. This bibliography, which includes New Zealand research,
"examines 254 scholarly investigations: 199 empirical studies
and 55 reviews and/or analyses, which demonstrate that women are as
physically aggressive, or more aggressive, than men in their relationships
with their spouses or male partners. The aggregate sample size in the
reviewed studies exceeds 252,800."
The evidence in favour of the scientific, as opposed to the Feminist,
approach to Domestic Violence is overwhelming, but the point here is
that it is a misuse of the DVA to draft regulations that facilitate
the dissemination of a particular point of view on Domestic Violence
that discriminates against men from the outset, without keeping an open
mind as to what the facts might actually show.
Peter Zohrab, has spent a considerable amount of effort, time and
emotional energy on combatting the Duluth model in New Zealand and internationally.
He has met with considerable harassment and discrimination on a regular
basis from people who believe in the Duluth model. People are capable
of believing almost anything, if it is taught to them in an apparently
authoritative setting. Programmes set up under the DVA constitute an
authoritative setting which instils man-hating propaganda into people's
minds. It therefore constitutes direct discrimination against him and
his fellow activists for the DVA and taxpayer dollars to be used to
disseminate the Duluth model.
We submit that there is no balancing need on the part of the general
public for one-sided brainwashing on Domestic Violence that could be
used as a counterweight to the rights of men in this matter.
3. Appearing to make some unusual and unexpected use of the powers conferred
by the DVA
It may well be the case that Parliament, in its deliberations on the
Bill which became the DVA, was influenced by the Duluth model. However,
there is nothing in the DVA which indicates that Parliament as a whole
wished the DVA to be used to indoctrinate anyone in the Duluth model.
I believe that the Members of Parliament who were influenced by the
Duluth model did not have a messianic zeal to impose it on non-believers,
or to conspire to have it displace scientific approaches to Domestic
Violence. Members of Parliament were, in all probability, totally unaware
of scientific approaches to Domestic Violence, since the Feminist-dominated
media was almost totally dedicated to building up public hysteria on
the basis of the Duluth model.
Therefore, the use of clause 28 of the Regulations to indoctrinate
people in the Duluth model was an unusual and unexpected use of the
regulation-making power.
4. Containing matters more appropriate for parliamentary enactment
In the unlikely event that Parliament had considered it necessary
to "educate" the population – or part of it –
in one particular approach to the theory of Domestic Violence, Parliament
would have passed an Act for that purpose. It would hardly have authorised
the drawing up of regulations for that purpose without having made that
purpose explicit in a Act.
5. Calling for elucidation for other reasons concerning its purport.
Although the extrinsic evidence is clear that clause 28 of the Regulations
foresees the indoctrination of the Duluth model, that is not actually
stated in the clause. There is the strong possibility that what is involved
here is bad faith and deception.
The issue of who is qualified to "educate" adult protected
persons about various theoretical aspects of Domestic Violence should
have been spelled out in the clause. However, as soon as it had been
spelled out, it would have raised questions about the validity of the
theory that underlay the apparent qualifications of the "educators."
There is a strong likelihood, in our estimation, that this issue was
covered up, in order to prevent scrutiny from taking place.
Recommendations
We recommend that – pending a thorough redrafting of the DVA
based on a scientific view of Domestic Violence – the Government
be approached, with a view to deleting sub-subclauses 2(a), 2(b), 2(c),
and 2(f), and modifying sub-subclause 2(e) by deleting any reference
to protected persons who are children.
If the Government is not willing to take that course of action, then
we recommend that the Regulations Review Committee recommend to the
House that the above modifications be implemented.
|
