INTERVENTION ORDERS (PREVENTION OF ABUSE) BILL

Committee Stage

In committee.

(Continued from 13 October 2009. Page 4238.)

Clause 2.

Clause passed.

Clause 3.

Ms CHAPMAN: I move:

Page 5, line 15 [clause 3(1), definition of defendant]—

Definition of defendant—Delete 'section 6' and insert: sections 6 and 29A

There are 37 amendments standing in my name, and they all relate to the proposal to abolish the provision for police not just to prosecute but to determine interim intervention orders and to replace that procedure with a 24-hour time-out procedure. I did canvass this at some length during the course of the debate. Essentially, the position is that, under the current bill, the government proposes a rather novel approach to dealing with the execution, assessment and then ultimate enforcement of interim orders.

The government proposes a process whereby, for up to eight days, an interim order can be made via a police officer of a certain rank (or even a police officer of a lesser rank, with the approval of a police officer of a certain rank, by telephone approval even), and they may conduct the assessment and adjudicate whether an intervention order should apply and issue such an order. This is novel, and what is particularly unusual about it is that the Victorian Law Reform Commission considered this issue at length and rejected it last year. In fact, it proceeded with a model that enabled the opportunity for interim orders to be made but not by the police.

The problem is basically that, in a fractious and potentially very dangerous situation in a domestic environment, police particularly are often called to assist in that situation to restore calm, to protect those who are potential victims and to ensure that children, for example, are removed from a situation where they are at serious risk or any risk to that extent. The police are most often called to deal with this situation. Sometimes neighbours are called upon, and sometimes it is people who are of goodwill and working in industries that provide support, such as the local priest—all sorts of people can sometimes be called in such a situation. However, police very often are called at the pointy end of these disputes.

One of the concerns of those who deal with victims of domestic violence is that there does not seem to be a quick procedure to immediately protect the victim. What these people are looking for is a capacity to intervene which has some force which will ensure not only that the victim is protected but also that the offender in this situation is removed, and that is an idealistic and reasonable thing to aspire to. Obviously, the people who work in the industry of supporting victims want to make sure that every opportunity is there for that to occur.

However, the real life practical problem is that what is also evident in these situations and is always very difficult is the fact that in an overwhelming majority of cases there is no clear evidence as to who is the victim. What is being asked is the ideal, that is, that someone comes in and identifies the victim and protects a child, woman, husband, partner, carer, grandfather or grandchild. However, the truth is that, in most of these cases, it is very difficult to make that assessment in the first instance. Each person has a different story, quite often there is no evidence of any physical harm, and diametrically opposed statements are given to the police officers.

So, in the overwhelming majority of cases, there are statements of claim and statements taken on oath to the police claiming what has occurred, and they are diametrically opposed. In the lucky situation where the attending police officers have an independent witness, they might have some chance in hell of making an assessment that could reasonably predict an outcome to protect the real victim. So, not only is there competing testimony in statements given by people at the door, but also there is often no independent witness. On the face of it at least, quite often there is more than one victim and, arguably, there has been an escalation of events resulting in the final call to the police seeking protection and help.

So, how is it possible for a police officer in that situation to make an assessment independently—and, of course, we start from the premise that he or she is willing to do that—and be able to make a judgment that will be fair to the parties concerned?

It is near impossible and quite ridiculous to expect members of the police force in the heat of the moment to come in and make those judgments. What they currently have the power to do—and this is very important—if there is a threat of violence or evidence of the commission of violence, is arrest the offending party. They have the power to do that already. You do not actually have to hit somebody to assault them. They know that; they are trained in this area. They can detain that person and arrest them in those circumstances. They can take them down to the local precinct to be questioned. They have a number of powers to keep the peace, as we say in common day language. They do not have the power or the obligation and responsibility, and I suggest that the government's bill places an unreasonable level of expectation on police officers by asking them to make a decision in those circumstances. It is quite unacceptable.

The question I raised and canvassed with my colleagues on this side is why the government is in such a hurry to have the police do this. At the moment, the police attend an event where there is a call or plea for help or intervention. They then return to the station after having dealt with it. They spend, on my information from the police, about three hours on these cases, preparing them, drawing up the statement, interviewing the witness, taking it down to the Magistrates Court, waking up the magistrate in the middle of the night, if they have to, attending court, getting an order and making the application. It is time-consuming. None of that will stop because they still have to take the statements, even under the government's proposal.

What is being asked here is an unreasonable request of the police to be the judge and assessor of this, which is quite unreasonable and unnecessary for the immediate protection of those in question. If we do that, if we give a preliminary application of this nature to police officers, they will be under extraordinary pressure, and, under the bill, they are expected to give a statement if they do not proceed with it. They have to write up a report if they do not agree to do it, when an application is being made.

We totally confuse the boundaries of what we highly regard in civilised communities, that is, the separation of powers. We in the parliament set the legislation. The government has a responsibility to spend money to implement policy. The judiciary has a responsibility to interpret and apply the law, and the police have an important role in its enforcement, amongst other duties. To blur those boundaries through this bill can only be because the government believes that it is going to save money.

We do not accept that for one moment, and we do not think the government will save money, and to think that it will free up court time by having these interim orders on the basis that you do not have to re-serve the documents is nonsense. We have a situation where you can get an interim order and confirm it in court—you do not have to re-serve it under this bill—and the government thinks it will get out with some sort of cheap justice.

I do not think for one moment that the government will support the women and children (primarily) victims of these situations; not for one minute will it give that protection. It is not acceptable that we impose an obligation on police officers. The government itself admitted in the briefing that it does not know how to do it and that it will not even implement this law for another year. For another year it will keep women and children out there without any access to this because the police officers have to be taught what to do. Who is the priority here?

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Yes, well, the priority here is the women and children. We have magistrates and justices of the peace ready to hear these cases. We do not need to adjourn this access to a time-out/interim order procedure. We do not need to do that. We can give this straightaway in the courts tomorrow once this legislation has gone through, without making those women and children wait.

It is a disgrace that I have to deal with a situation of women's groups now writing to me saying, 'Please push this bill through. We're desperate to get it through', and I have to explain to them that, in fact, we are very keen to get this bill through and were happy to deal with it two weeks ago when we were here. It was the Attorney who decided that he was going to put this off, not us. South Australia is the last state in the country to bring in reform for domestic violence victims, and he pretends to care about the women and children who are victims of domestic violence. What a disgrace!

The Attorney then has the gall to say that we have to push this through the parliament quickly because we have to be able to protect this. I have women's groups writing to me asking us to do that, which we are keen to do, and yet the truth is that, clearly, he has not admitted to them that he is not going to agree to the assent of this bill and its implementation until a year away. He is going to keep women and children, the victims of abuse, quarantined from access to important reform which is otherwise in this bill.

The truth is that this government has been slack in bringing in legislation to protect these women and children and other victims of abuse, including carers, grandchildren and so on. There is no question that it rests entirely with the government for its lack of commitment to advancing this legislative reform.

We have had Ms Pyke's report for two years. The Victorians have had their inquiry, put their legislation through and are implementing it, and yet the Attorney wants the women and children of South Australia to wait until the end of 2010. What a disgrace! So, they will be told, well and truly, by me that we on this side of the house are not delaying this measure and that its progress rests entirely with the Attorney and his cabinet, who make the decision about how these matters are advanced. The people concerned will know that very clearly.

The opposition has been told that the Victorian system, which is obviously a Magistrates Court approach—keeping the courts involved—is cumbersome and that it would be better to have a streamlined system for this instant protection provision. So, we have gone back and had a look at the Western Australian model. Why have we done that? Because that is exactly what Maurine Pyke QC recommended. But this government decided that it did not want to follow anyone else; it wanted to do its own thing.

The Western Australian model is what is encompassed in the amendments now before the committee for consideration. I ask members to understand that this is a system which is in place, which works, and which adds to the powers of police to provide for immediate removal of someone on a time-out policy. What happens in Western Australia—and I want to make this point clear; it is a little like locking people up without giving them a rehabilitation program—is that a police officer has the power to require a person, who is suspected on the balance of probability to have been causing the problem and the threat of risk of abuse to another party, to be removed from that household.

The obligation in Western Australia, in those circumstances, is that they be required to vacate—usually a residence, sometimes it can be an office or place of work—those premises and they are taken to and placed in a shelter or facility—basically a hostel. They are not thrown out on the street; they are given accommodation where they can stay. I assume, from what I have read, which is pretty basic, and that is fine, but it is temporary. It is to calm the situation. It is a time-out model which works to the extent of ensuring that a party who, on the balance of probability, is the person causing the problem can be removed. As I say, very often there are some cloudy areas about who might have precipitated the issue. However, that person can be removed. Take into account, under the original bill that is before us, the importance of ensuring that children are not unreasonably disrupted from their residence, etc., and give protection to that person or persons who may be at risk.

That is a model which is operational and which was recommended by Ms Pyke but which the government has refused to accept. The government wants to go off on its own tangent of a police intervention order, but the direct consequence of that is that women and children in this state will wait for another year before they have the benefit of any of the balance of this bill which has primarily been developed on the recommendation of a major review spearheaded by Ms Pyke, whose work I have commended in the past. It is a disgrace that the government has taken so long to bring it in.

The whole thrust of this amendment is to bring it in line with what is workable. The time-out model is an important process which operates in Western Australia and of which we should take heed. Therefore, I endorse amendment No. 1 to clause 3 on the basis that I am not going to repeat this for every clause. Obviously, the house would have an understanding of our position on this and why we are moving it. It is a demonstrated model of success and it will avoid immediately the need to delay unreasonably the protection of the very victims we are attempting to protect in this instance.

The CHAIR: The member for Bragg has moved amendment No. 1 only but has spoken to all amendments. Would that be fair to say, member for Bragg?

Ms CHAPMAN: Yes.

The Hon. M.J. ATKINSON: I shall deal with the member for Bragg's amendments in detail in a moment but first I have to say that the member for Bragg asked the government to delay consideration of this bill so that we could properly consider her amendments. The member for Bragg filed amendments and I told her—and she will recall this—that I regarded the amendments as of no merit and could debate them and vote them down that very day.

Ms Chapman: Why didn't we then?

The Hon. M.J. ATKINSON: Because you asked me not to and, therefore, the government went away, considered the amendments, and I am about to tell you what the government's response to the amendments is—

Mr Hanna: Which you had already decided. You just told us you had already decided.

The Hon. M.J. ATKINSON: That is right, so I have gone away and I am about to give you extensive reasons why the government does not support the member for Bragg's amendment but line of sight I told the member for Bragg on that day that the government would not support the amendments and, therefore, if she consented, could expedite the bill that day, but the member for Bragg did not want that.

So, let's make it clear: the reason the bill is being debated today, and not on a previous occasion, is the member for Bragg because she wanted her amendments dealt with due dignity, and I am about to give them their due dignity. The second thing is that we tried to bring on this bill earlier for a second reading debate and the member for Bragg said she was not ready: the dog ate my homework; my raccoon has hepatitis and I have to stay home and tend it!

The member for Bragg was not ready to go when the government was, and this is a constant theme with the member for Bragg, that she is not ready to deal with government legislation after the due notice has been given. Not once in my entire seven years as shadow attorney-general was I able brazenly to go to the then attorney-general of blessed memory, the Hon. K.T. Griffin, and say to him, 'Sorry, Griff. I am not ready to go on this one. Could you give me an extension?' Not once did I do that in seven years. I had to come in here and debate it when the Attorney-General had given due notice. The member for Bragg is a serial extension-seeker, and the women's groups are right to correspond with her asking that she get on with it and deal with it.

Having said that, I appreciate that the amendments introduced by the member are not designed to obstruct the passage of the bill, I accept that; rather, they are out of an abundance of caution and take a more conventional approach to domestic violence restraint. However, I believe the amendments are not necessary to protect the rights of defendants and will greatly diminish the protection the bill offers to victims. I told the member for Bragg on the day that I was ready to deal with the amendments.

Ms Chapman: So were we.

The Hon. M.J. ATKINSON: No; you were not, actually. You did not want me to proceed that way; you wanted me to go away and deliberate on the—

Ms Chapman: Check the Hansard.

The Hon. M.J. ATKINSON: It is not on the Hansard. I will oppose all the amendments introduced by the opposition, as I told the member for Bragg at the time, and will outline my reasons in speaking to the first one.

Mr Goldsworthy interjecting:

The Hon. M.J. ATKINSON: Sorry?

Mr Goldsworthy: I was talking to Vickie.

The Hon. M.J. ATKINSON: You were talking to Vickie? That would be the first time. The opposition amendments are designed around one concept: removing the ability of police, in cases where the defendant is present, to issue interim intervention orders that simultaneously serve as applications to the court and as summonses to appear before the court for an intervention order. The amendments would replace that authority with a lesser authority to direct the alleged perpetrator, by means of a time-out order, not to contact or be near the victim and surrender firearms until noon of the next day. The idea comes from the Western Australian legislation—and the member for Bragg is a great imitator. I will speak more about that legislation later.

The bill allows police to restrain the defendant immediately if he is present or in custody on whatever terms will best protect the victim until a court determines whether restraint is necessary, and, if so, what the terms of the restraint should be. The defendant is served with the order on the spot, which is taken to be a summons to appear at a hearing within eight days, at which the order is either confirmed or varied, or the application is dismissed and the interim order revoked.

When police issue an interim order, there is no need for a preliminary hearing: the matter goes straight to a final hearing. The approach taken by the bill supports the government's Family Safety Framework and the SAPOL domestic violence policing model. The approach taken by the opposition amendments runs contrary to these models in not focusing on the safety of the victim and in substituting a one-size-fits-all short-term ban, which can last as little as 12 hours, for a carefully constructed and continuing restraint.

Experience in other jurisdictions shows that police are less likely to apply for long-term restraint where they can simply make a short-term cooling off order, and can do so indefinitely as each incident is reported. This incident-based approach relies on continual reporting by victims, placing them at risk of retaliatory abuse each time. It favours perpetrators of abuse because it lets them re-approach the victim within hours, and leaves the victim exposed unless an application for a restraining order is made to, and granted by, a court.

It should be emphasised that proceedings for intervention orders are not criminal proceedings: they are civil applications. Criminal charges that may arise from the incident are laid independently and are prosecuted and heard separately by a criminal court. Police issuing interim intervention orders will not be acting in multiple roles of investigator, prosecutor and adjudicator—as the member for Bragg claims—as, under the current law, they will first investigate a report of abuse and decide whether there are grounds for restraint.

The bill allows police either to apply to the court for restraint, as under the current law, or issue a temporary intervention order that serves as an application for restraint and must be scrutinised by the court within eight days, if it is to remain in place. In issuing the interim order the police are not adjudicating anything.

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: The member for Bragg scoffs. The considerations for issuing an interim order are the same as for those for deciding whether to apply to the court for an order. Police must evaluate the evidence before them to assess the risk of abuse to the victim. It is a similar process to that used routinely by police in deciding whether to report a person for a criminal offence. It does not require police to adjudicate the entitlements of the parties but simply to put in place a holding measure to protect a person from abuse, as they think, until the court can make the final decision.

Everyone who has been consulted on the bill so far, including magistrates, Maurine Pyke QC, police, DPP, Housing SA, Department for Families and Communities, the Guardian for Children, victim advocates, children's advocates, women's groups and domestic violence service providers to both victims and defendants, supports and welcomes the concept of giving the police the option of issuing interim intervention orders in some situations.

Ms Chapman: What about the Law Society?

The Hon. M.J. ATKINSON: I will pick up that interjection because the Law Society has improved immeasurably in the past seven days with the ascension of Richard Mellows to the presidency, and I am pleased to say that we had a very pleasant reconciliation lunch last week in Gouger Street, there on the Arab street.

Ms Chapman: That's how you avoid dissent: you just don't show them anything.

Members interjecting:

The DEPUTY SPEAKER: Order! The Attorney-General can just proceed and ignore interjections.

The Hon. M.J. ATKINSON: They see this approach as a breakthrough because it ensures the immediate safety of victims of domestic violence and simplifies the process of restraint in a way that does not diminish the entitlement of an alleged perpetrator to be heard before the restraint is confirmed.

To pick up the last interjection, that is a letter circularised by the previous president of the Law Society, John Goldberg, who seems unaware that he has a right under the changed procedures of the house to lodge a statement in Hansard rebutting what I had to say. Apparently Mr Goldberg still thinks it is fine to bill the guarantee fund for about $350,000 for only $130,000 worth of legal costs—that is just how John Goldberg operates. The other thing is that, apparently, he thinks that the public and the Attorney-General do not really need to know when Nick Niarchos is before the Supreme Court for practising insolvent because he has not paid taxes for a few years. Apparently that is nothing to worry about: according to Mr Goldberg, we do not need to know.

The ability to issue interim intervention orders is just one of the tools made available by the bill for police investigating alleged incidents of domestic violence. It is not mandatory. I repeat that for the benefit of the member for Bragg: it is not mandatory. The bill gives police three choices, apart from laying criminal charges, when they believe there are grounds for restraint: (a) to apply to the court for an intervention order by written application; (b) to apply to the court for an intervention order urgently by telephone; or (c) if the defendant is present or in custody, to issue an interim intervention order immediately themselves in the same terms as an intervention order made by a court, for example, including firearms terms, and on the same grounds.

Ms Chapman: Or, fourthly, they do nothing.

The Hon. M.J. ATKINSON: Yes, (d), as the member for Bragg interjects, do nothing—and that might be indicated by the circumstances.

The opposition amendments would remove paragraph (c) and substitute a temporary order that must still be followed up by formal application to the court. Quite apart from the unfortunate name 'time out order'—which conjures up a parent disciplining a wayward child and detracts from the gravity of domestic violence—the opposition amendments would require police to carry out not one but two steps; first, the issuing of a time out order and, secondly, the making of an application to the court for an intervention order.

In practice these two steps would need to be done in close succession because time out orders expire at noon on the day after they are issued. As mentioned, the second step is unlikely to be taken in time in most cases—to the detriment of victims of abuse. The opposition amendments would also restrict the making of a time out order to circumstances where it is not practicable to make an application to the court for an intervention order, that is, in extremely rare cases where it is impracticable to make an urgent telephone application. It allows an unfortunate gap between the initial investigation and the issuing of the time out order, during which the impracticability of applying to the court must be established and during which police cannot search for and ensure firearms are surrendered because there is no relevant order in place requiring their surrender.

The opposition amendments offer no protection to the victim between the expiry of the time out order at noon the next day and when the court hears the application for an interim order. The bill enables police to issue an interim order to put immediate measures in place to deter further abuse. That order serves as an application for a final order. It stays in force until the court revokes it, confirms it or substitutes a different order. There is no gap between the expiry of one order and the start of another—no lapse in the protection of the victim.

The opposition amendments by contrast would leave victims of abuse without protection once the time out order expires. There is no guarantee under these amendments that once a time out order has been made an application for an order will be made to the court. If an application is made there will be a lapse in time between the expiry of the time out order and the making of the next order by the court. During that period the victim will have no protection at all.

The opposition amendments will set a higher bar for police intervention than under the bill. In order to issue a time out order police would have to believe on reasonable grounds that the order is necessary to prevent the immediate commission of abuse. By contrast, the bill allows police to issue an intervention order if it appears that there are grounds for that order; that is, there is reason to believe that the defendant will without intervention commit an act of abuse.

The bill does not require a suspicion that the abuse will be committed immediately for an intervention order to be issued. It will simply be a matter for the police to weigh up whether there is a risk that, without the orders being made, the defendant will commit abuse. Even if the choices available to police were limited to written or urgent telephone applications to court, there would be no need for a time out order to keep the alleged perpetrator away from the victim in the limited circumstances contemplated by the opposition amendments.

That is because (a) the bill already allows police to require the alleged perpetrator to stay in a particular place while the application or order is being prepared or is being served, and to arrest and detain this person for up to two hours, or up to eight hours with the permission of the court if the person does not comply with the requirement or there are reasonable grounds to believe that the person will not comply with it and, furthermore, (b) the bill gives police another important arrest and detention power that may be exercised when serving an intervention order if it is necessary to prevent the immediate commission of abuse against the victim or to enable measures immediately to be taken for the protection of the victim. The defendant may be detained for up to six hours or, with the permission of the court, an aggregate of 24 hours. If police are able to issue interim intervention orders themselves on the spot, they may also detain the defendant in such circumstances.

The opposition amendments will allow this authority to be invoked when serving a time out order but, because a time out order cannot be issued until police have tried and failed to contact a magistrate and cannot be issued until there is a reasonable suspicion of immediate abuse, there will be a gap in time when the defendant cannot be held at all.

The member for Bragg says that her amendment is a model on the police order powers under the Western Australian Restraining Orders Act and claims these advantages over the power given to police under the bill.

The first advantage claimed is that time out orders separate the role of enforcer and adjudicator. The separation had been a concern of the Victorian Law Reform Commission in recommending reforms to the Victorian restraining order legislation.

Giving police the authority to issue these time out orders still requires them to weigh up possibly inconsistent accounts of what has happened in the same way as they would when applying for an order or, indeed, issuing an interim order themselves. A similar decision-making role is required of police issuing barring orders under the Liquor Licensing Act 1977, but a barring order lasts for three months or more and is not automatically reviewed by a court. I hear no complaint by the opposition about the police role under that act.

By contrast, police interim intervention orders under this bill must be confirmed by the court within eight days and the defendant always has the opportunity to contest the matter. If this is adjudication, it is not the kind that worried the Victorian Law Reform Commission. That is a jurisdiction with human rights legislation, of which the member for Mitchell is an advocate.

The second advantage claimed by the opposition for its proposed amendments is that time out orders could be put in place faster than interim intervention orders because there would be no need to train police. That is a spurious claim. The government intends that everyone who is responsible for putting in place the legislation and for advising or assisting victims or defendants, including police, will undergo training in this new legislation, in the options available for victims and perpetrators, and in understanding domestic violence generally.

They will need to understand the new wider circumstances that are to constitute abuse and the kinds of relationship in which abuse will be considered to be domestic. Police would need the same level of training on the time out orders proposed by the opposition as for the interim orders proposed by the bill; for example, about the grounds for issuing the orders, the effect and duration of the orders and the procedure for making them; and when, in practical terms, the orders should be made. I know the member for Bragg has been stung by the letters sent to her by women's groups. So much is obvious from the debate.

Ms Chapman: I will set them straight.

The Hon. M.J. ATKINSON: No doubt the member for Bragg will set them straight in her inimitable manner, which had the Deputy Premier come in here earlier this evening asking for a reduction in the member for Bragg's volume because she could be heard throughout the building.

I understand the Western Australian Attorney-General's Department has recently reviewed its cooling off orders—the rough equivalent of the time out orders proposed in these amendments—and has recommended that they be replaced with a longer three-day order. The member for Bragg did not mention that.

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: You just left that out. Anyway, we do our research in the Attorney-General's Department. More importantly, submissions to the WA review, although welcoming the instant police intervention that came with the ability to issue cooling off orders, raised concerns about whether 24-hour cooling off orders would provide real protection from domestic violence, particularly when, as in most cases, perpetrators are not suffering from an anger management problem but exercising a form of controlled domination. A submission from the Armadale Domestic Violence Intervention Project Inc. said:

If we believe that somehow a perpetrator 'cools off' in 24 hours never to engage in violent or abusive behaviour again then we are taking on board a very unsafe way of reviewing Domestic Violence. As our practice indicates along with research that perpetrators of Domestic Violence are generally very good at managing their anger and choose to direct their violence with intent to control, frighten and intimidate their victim.

Dr Dot Goulding of the Centre for Social and Community Research at Murdoch University submitted that perpetrators of violence against partners would not, as a rule, be acting out of the heat of anger which needs to be 'cooled' and says for that reason it is a mistake to imagine that perpetrators have an anger management problem and send them off to anger management programs indiscriminately. She confirmed that most perpetrators of domestic violence do not have an anger management problem.

The government believes that giving the police the option of issuing an interim intervention order offers a much more effective and appropriate immediate protection to victims of abuse. Laws that make immediate but less than 24 hour protection the easiest option for police and require the victim to then report again any subsequent abuse once the time-out period ends offers little real protection to victims.

The police interim intervention order option offered by this bill offers an immediate and appropriate response to domestic violence. In contrast to the time-out orders proposed in their place by the opposition, police intervention orders also serve as applications to the court for a final intervention order; can be made whenever the defendant is present and not only after hours or when it is impracticable to have a court make the order; continue in force until the court revokes or varies them, within a maximum of eight days; and do not need to be continually applied for or renewed because of their continuing effect.

Mr HANNA: I agree with what the Attorney-General says. I do not endorse his snide remarks, but I believe that the material prepared by the officers of the Attorney-General's Department is an effective rebuttal to the points made by the member for Bragg.

The concept of excluding the offender from the home where there has been a typical case of domestic violence is a concept that has been around, to my own personal knowledge, for more than 10 years, and the Labor Party and the Liberal Party were both lobbied on this issue at least 10 years ago. I know that to be true. So, I suppose it is a reflection on this 7½ years of Labor government that we come to this now: it is a reflection on the priorities of the Labor government. Nonetheless, I am very glad to see this legislation before the parliament.

I believe that it goes too far, and that will be explained in a minute. However, I do not think this is the point where it needs amendment. To have only a 24 hour exclusion of the offender would completely undercut the major reform of the legislation, and that is to get the offender out of the house, rather than what has happened for the last couple of thousand years, that is, that the woman (typically the woman) and children have to flee the house for their own personal safety.

If it was only a 24 hour exclusion in the typical case that I am imagining, where there has been actual violence or the threat of violence, the woman and/or children would be in perpetual fear during that 24 hours and would have to move out of the house, anyway. So, the prime policy objective of this legislation would be undercut. I cannot agree with the proposition put forward by the Liberal Party in this respect.

Amendment negatived; clause passed.

Clauses 4 to 7 passed.

Clause 8.

Mr HANNA: The legislation, as I have said, is worthy: I support it. I recall, probably in about 1998 but I think it was at least 10 years ago, there was a very effective presentation to members of parliament from a sergeant of the South Australian police force and a couple of victims of domestic violence. As is typical with presentations in this place, no matter how significant the issue, only a few members of parliament actually attended, but it was certainly a very powerful demonstration of the terror and the injustice of domestic violence, as the victims recounted what they had experienced. In addition to that, it has been an area of interest of mine. I have canvassed the research quite a bit and thought about effective reform in the area.

I do believe that the exclusion of the offender from the home under threat of gaol term is one of the most effective reforms that we could achieve in this area. However, I take issue with the definition of abuse that has been set out in the legislation. I have not prepared amendments. The issue itself has been canvassed publicly between the Attorney-General and me, so I know the Attorney-General's point of view and I know that he will not accept an amendment. An amendment may be moved in the upper house, and I hope that the Liberal opposition will give it serious consideration. For myself, I would pretty well delete a lot of the material after the reference to 'physical injury' in the definition of abuse.

I am very well aware of the studies of domestic violence and the variety of forms which abuse can take—and yes, they do include emotional, financial and sexual abuse—but the nexus that we are looking at is between that analysis of domestic violence and the police officer in the lounge room or at the front door considering whether to exclude someone from their home under threat of a gaol term. It seems to me that where there is some evidence of physical abuse—whether it be someone who is bruised, whether it be evidence of a scuffle, perhaps even property damage in combination with other things such as an overheard violent argument—I can perfectly understand the exclusion of an alleged offender from the house in those circumstances.

The people to whom I have spoken in the community, whether they are touched by domestic violence or not directly, have shown a lot of support for that. People can see the justice of the situation that the alleged offender should be excluded, rather than what happens; that is, typically, the woman and/or children need to move. This can mean that health services, for example, which are used by the woman, are now in another part of town. It can mean that the children have to move school. It can mean that there are consequences in Family Court proceedings if the woman and her children have basically been forced to flee the house and the man retains possession, and there is then an argument about who keeps the house.

For all those reasons, this reform has a powerful balancing effect in terms of giving the victim of domestic violence some more power in the situation. However, I am concerned that, if there is no question whatsoever of there being physical violence, so it is only a matter of distress that is caused by the various matters which are described as examples in clause 8, many in the community will not consider that to be domestic violence and therefore the law itself may be perceived as going too far in the community.

I think that would be a great shame because, as I have said, this is a really worthy reform. It is a radical reform. It is a radical notion for police on the spot to exclude someone from their house on pain of a gaol term if they return. I think the extraordinary circumstances of domestic violence warrant that. I am the first one to stand up for the individual's rights, and excluding someone from their home—which may have the effect of them not seeing their children, or have the effect of destroying their business which may be run from home—is an extraordinary incursion into the rights of someone; but, in the context of domestic violence, I do believe that is warranted because it balances out a situation which has been so unjust in the past for victims of domestic violence.

However, if it is just emotional distress we are talking about, I have to say that probably most families in South Australia would have experienced the level of distress that, under this legislation, could enable a police officer to exclude someone from the home, and I do not think that is what the community wants. I think that is going too far. If this legislation goes through and in the future we have just one case where we find that the allegations were not true and an order for exclusion has been made on the spot where there has not been any question of physical violence but just of distress, I can see this law falling into disrepute, and that would be a shame for all victims of domestic violence who stand to benefit from the legislation.

I think it has gone too far. I have not moved amendments. The issues are clear. I do not expect any favour from the government in putting this forward. It is a great shame in fact that I will probably lose a few friendships and contacts in the women's movement and in the domestic violence arena because what I am putting forward is directly contrary to what many of them hoped for with this legislation passing. However, I have to call it as I see it. My views are informed by consultation with people in my community. A number of people think that, where there is absolutely no question of violence, it is going too far to take someone out of the home.

As I said, I am very familiar with all the literature and many countless personal histories where women have been controlled and subjected to humiliation and degradation through means other than actually using physical violence—through financial control, through the threat of harm to children, pets or property and so on. I am aware of all that, but I think that, if we are taking such a radical step in terms of reform, we should go down the road which will find ready acceptance in the community, and they are the cases where physical violence has been threatened or in fact has taken place.

Remember, we are talking about the allegation of that occurring. It is unproven at the time that the police officer comes to investigate. I think it is placing a very difficult situation before police officers, no matter how much training they have. It will be the task of Solomon to determine the issue where two people, after a heavy argument, are both making counter-allegations about each other and the distress that has been caused by the other person when there is no claim of violence occurring but plenty of claims of anxiety and distress. Then, if the government says, 'In those situations, there will not be exclusion from the home'—the commonsense view being, 'We will not exclude people from the home if that's all there is', that is what the legislation should reflect.

The Hon. M.J. ATKINSON: I make the point that exclusion is only one possible outcome of the order. I understand the points that the member for Mitchell is making, and indeed he made them, I think, in my presence in the Radio FIVEaa studio recently. I think it is unlikely that one partner would be excluded from the home on one of the nonviolent heads alone. I think that is an unlikely outcome, but we will see as the legislation is applied.

I also say that the member for Mitchell might be better served to turn his attention to a clause that would punish someone who made an allegation on the basis of which an order was issued which was subsequently proved to be false. That may be a better way to go in this legislation, but I do understand the member for Mitchell's argument. Time will tell and, if he is right, we will be back to consider this legislation again. I thank him for his contribution.

Clause passed.

Remaining clauses (9 to 41), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.