20 December 2022 – The Press Council considered whether its Standards of Practice were breached by an article published by The Courier Mail on 24 May 2021, headed “Close loophole that costs innocent lives” in print and headed “Qld DV crisis: Courts powerless to restrain offenders due to loophole” online.
The article is an opinion piece in which the columnist reported that the laws in Queensland are “providing little protection to victims.”
The article said, “Queensland is in the grip of a domestic violence crisis, and a little-known judicial loophole is stopping police from keeping perpetrators behind bars” and that the “sobering reality is that Attorney-General Shannon Fentiman could change the law today and help save the lives of innocent women. Yet despite pleas from the Queensland Police Union and senior domestic violence lawyers, the loophole remains.”
The print article reported “Here is how it works. Domestic violence offenders who strangle, assault or sexually assault partners are not being charged with the offence because they are not dealt with in the criminal court.”
The online article reported: “The government claims that if a woman is strangled or assaulted that it does carry a criminal charge. However, if it’s committed in a domestic violence situation then it becomes an aggravating factor in sentencing.”
The article further reported: “So if you strangle a stranger on the street you’re charged with a criminal offence but if you strangle your ex-wife, it’s not deemed as a crime.”
Following a complaint, the Council asked the publication to comment on whether it took reasonable steps to ensure that the article is accurate and not misleading (General Principle 1) and that writer’s expressions of opinion are not based on significantly inaccurate factual material or omission of key facts (General Principle 3).
The Council noted that the complaint raised concerns that an absence of police prosecutions was not the result of a legal impediment to prosecute perpetrators of domestic violence.
The publication said the columnist relied on material published in a Queensland Law Society article when asserting that criminal acts are being included in domestic violence applications in the courts’ civil jurisdiction, and as a consequence, are not being separately prosecuted by Queensland police as criminal matters.
The publication also said the article does not state the law precludes perpetrators from being charged by police, rather it states that certain alleged criminal acts are not being prosecuted by police.
The publication said that if a person strangles his ex-wife and is not charged and prosecuted by the Queensland police, it can be reasonably inferred the authorities have not deemed the action a crime.
The publication said the columnist is arguing that allowing serious criminal acts to be included in domestic violence applications (which are not being pursued separately as criminal matters) is a loophole in the law.
The publication said the columnist’s argument is that domestic violence offences should always be dealt with under the Criminal Code, eliminating police discretion to bypass criminal prosecution.
Adjudication 1826 – Conclusion
The Council acknowledges the material provided to it by the publication in support of comments in the article concerning the prosecution of domestic violence perpetrators.
The Council also acknowledges that the article is an opinion piece and such articles, by their nature, make an argument.
In this context, the Council recognises that opinion writers who identify adverse outcomes or practices in law enforcement may not be across the detail of relevant underpinning legislation.
Nonetheless, the Council does not consider there was anything in the material relied upon by the publication to substantiate the columnist’s assertion that a ‘judicial loophole’ is stopping police from prosecuting perpetrators of domestic violence for serious criminal acts.
The Council notes the legislation establishing the civil framework to protect victims of domestic violence specifically allows for concurrent criminal proceedings to occur.
The Council notes that it would have been preferable to identify the problems as arising from matters of practice rather than from a legal loophole.
Although the Council accepts the columnist raises an important issue, on balance, it considers the publication breached General Principles 1 and 3.
Relevant Council Standards
This Adjudication applies the following General Principles of the Council.
Publications must take reasonable steps to:
Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.
Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts.
