Shircore, Douglas and Morwood, ‘Domestic and Family Violence and Police Negligence’

Abstract
Domestic and family violence in Australia has received unprecedented attention over the past few years. A number of recent reports and reviews have identified that improved policing is key to enhancing the safety of women and children. In response to these reports, and in recognition that police are often the first to respond to domestic violence, a number of jurisdictions have strengthened police powers and, in some cases, mandated police responses. This article draws on a qualitative study of victims’ experiences of police responses to domestic violence in order to identify the extent and breadth of the problems that continue to plague police responses to domestic violence in Queensland, in spite of legislative change. The article then uses Queensland as a case study to consider whether a victim of domestic violence, who claims that the police failed to adequately respond to or deal with their request for assistance, would be able to successfully take a private civil action against the police in Australia; specifically in the tort of negligence. The current position in Australia concerning the existence and scope of the duty of care owed by police to victims of third party harm is unclear. While a number of state courts have considered the issue, to date there has been no High Court of Australia determination directly on point. Recent cases decided in the United Kingdom and Canada, changing community attitudes, and the enhanced police powers that have been introduced in Queensland and elsewhere to ensure police better respond to domestic and family violence reopen the debate about whether police should owe a duty of care to victims of crime, specifically victims of domestic violence.

Mandy Shircore, Heather Douglas and Victoria Morwood, Domestic and Family Violence and Police Negligence (2017) 39(4) Sydney Law Review 539.

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