Statutes Amendment (Domestic Violence) Bill

Committee Stage

In committee.

(Continued from 7 November 2018.)

Clause 8 passed.

Clause 9.

Ms HILDYARD: In relation to clause 9 in particular, how do you envisage paragraph (oa), regarding forcing a person to marry another person, being enforced?

The Hon. V.A. CHAPMAN: The amendment proposes the insertion into the meaning of 'abuse', the forcing of a person to marry another person is an example of that. Sadly, this is a situation which has happened in South Australia and which I cannot say will not happen again.

Usually, the identification comes when there has been a request for a passport to be issued for a young woman. Sometimes it is reported in the school environment in circumstances that I am aware of where a teacher becomes alert, sometimes by another student saying, 'My friend X has been told by a parent she has to go to Y country, and I think they're going to make her get married to her second cousin,' or whatever.

This is a situation that has happened in South Australia. It is such a concerning matter in relation to forced marriage that I remember that the honourable Minister for Child Protection, the member for Adelaide, moved amendments, in relation to the prior government's legislation on child protection matters, to expand the application of the capacity to confiscate passports to deal with this issue.

There was already provision in child protection law that allowed for the confiscation of passports where it was suspected that a child was going to be removed from the jurisdiction for the purposes of some female mutilation process, and it has now been added, with the acquiescence of the previous government, to be included in the provision to protect children who might be removed from the jurisdiction for the purpose of forced marriage.

Whilst we can read on national websites for advocacy groups, particularly women's groups, who are very vocal in supporting measures to protect young women from Australia to be trafficked around the world for the purposes of marriage, usually at the behest of their parents, it is not often known and not often reported publicly when this situation occurs. I think it is something that we all need to be vigilant about. Places where children aggregate, obviously schools, are one opportunity for those of us in the community who have a responsibility to children to be alert to this.

It is not a matter that I am suggesting in any way should be identified as some alarming regularity, but I make the point that, just when I thought the situation was calm, there was a case last year with some publicity around it. I think we need to be conscious of the fact that this is a circumstance that exists. It may not be as prevalent in South Australia as it is in other states or countries, but it is something that we need to be alert to.

It is important that we have the provision in there to make clear that even the conduct in forcing someone to do this by virtue of threat or withdrawal of privilege or financial support—all sorts of things can be presented as means by which a person is pressured into a forced marriage—is a practice that we do not accept in Australia. It is a practice that we need to be alert to. We need to be vigilant in protecting children, so I am very pleased that the provision is in there.

I am aware of only one example where the young woman in question has been the complainant, and it was to a domestic violence agency in South Australia. She sought assistance in a circumstance where she was in a marriage and newly in Australia, and she was literally found in a state of undress in a very distressing situation. She was obviously in need of food, shelter and protection. It was not clear until some time into the agency's support of her that she was actually under 18 and had been forced into a marriage sometime earlier, obviously at a young teenage age.

In managing these situations, I think that one of the things we in South Australia who have had the privilege of growing up here need to appreciate is that underage and forced marriage is not even necessarily seen by the victim as a circumstance that they can complain about, or that they feel is even appropriate to complain about, because it has been part of their history. They have accepted it and acquiesced to it. That is all the more reason why we need to ensure that particularly children are protected, hence why we elevate this to the status of a recognised, statutorily endorsed form of abuse.

Ms HILDYARD: Thank you for that comprehensive answer. Do you envisage that the legislation will cover only marriages that occurred in South Australia, or will it also cover marriages that occurred in other jurisdictions but the people involved are residents of South Australia?

The Hon. V.A. CHAPMAN: Anywhere. Obviously, the circumstance where we would be most alert to it is where there is the prospect of a person leaving the jurisdiction to marry, usually outside the jurisdiction. There may be a circumstance where the proposed marriage is to take place in South Australia and false documents are presented about the age of the victim, for example, where a 14 year old is presented under the guise of documentation claiming that they are 18. But I would think it more likely, on seeing the national data often on the websites of agencies that are out there protecting against this circumstance, that they are taken to a country where underage and forced marriage is an endorsed practice.

To make this clear today, I think it is to be distinguished that there are cultural practices in other countries where arranged marriages still prevail. If the parties are consenting adults, even if the parents have had a say in the selection process, and the consenting adults support that, and there is no evidence of duress and the like, we have to be careful to distinguish that.

I do not know about other members in the chamber, but I would not have been overly impressed if my parents had picked out my prospective husband, the favoured choice for them, even if they were to provide all sorts of inducements, if I had not liked their choice. I have to say that my father in his time made a number of comments about prospective partners he did not like and made it pretty clear whom I should acquaint with. The fact I that in Australia we enjoy the opportunity to partner with people by choice and as adults. Of course we should have the freedom to do that; sometimes, I think some people look back and think that perhaps they should have listened to their parents.

Nevertheless, I want to be clear that, because we have a number of cultures where marriage is arranged by parents and is acquiesced to, it is still something we have to respect. I give one example of when I was recently in a discussion with a young man from India who was driving the taxi I was in. He was going back to India because he was getting married at the end of the year. I said, 'Great. Congratulations. Does your prospective wife live in India?' He said, 'Yes. I have been back and I have met her once.'

He quite openly explained that the arrangements had been discussed between her parents and his parents and he was very happy that they had made a choice for him and that he was going back to marry her. I do not know the girl's side of the story, but I make the point that these are cultural practices that we need to respect, but we have to be satisfied, in respect of any lawful marriage, that there has not been any duress in the process.

Clause passed.

Clauses 10 to 13 passed.

Clause 14.

Ms HILDYARD: Attorney, how was the penalty of $10,000 or imprisonment for two years for contravention of an intervention order reached?

The Hon. V.A. CHAPMAN: I am advised that the imprisonment for two years was already in the statute book and that the addition really is the monetary penalty. Before a decision is made on how much that should be, there is an assessment made of other comparable offences that apply in South Australia and, I am further advised, in consultation with parliamentary counsel, the decision is ultimately the recommendation that is presented to us. I am reliably advised that that exercise has been undertaken; that is what they came up with, and we accepted it.

Ms HILDYARD: In regard to the same clause, what was the feedback on that particular figure during the consultation process?

The Hon. V.A. CHAPMAN: I am advised that there is no recollection of any positive or negative feedback in relation to the actual penalty, but for the purpose of the committee record, and I have touched on this earlier, one of the submissions that we received related to when the contravention proceedings that are to newly apply should apply. We certainly did receive a submission that it would be appropriate for the contravention to be the second and/or subsequent, rather than third or any other sort of formula.

This was really an indication of the feeling in the community that, if there is conduct that justifies an intervention order and it is applied for and obtained and there is a contravention in the first instance, there can be a level of leniency in relation to how that is to apply. But if we are going to get tough in this area, to the extent of saying to someone on a second occasion or thereafter, then a new set of rules apply. In other words, 'You have had a chance. You have been on clear notice. The intervention order has been made. You have breached it, no matter how minor that might be. You have some recognition of the fact that you are brought to account, but on the second occasion there is a serious consequence.' That is something that was brought to our attention.

Secondly, the advice we received was that 'the act or omission alleged to constitute the contravention involved physical violence or a threat of physical violence' was as a direct result of consultation.

Ms HILDYARD: I indicate that I have two further questions on this clause and then that will be all my questions. The member for Elizabeth has one question on this clause. Attorney, could you outline how this penalty compares with penalties in other jurisdictions?

The Hon. V.A. CHAPMAN: I am advised that we are not certain as to the application of other similar offences, bearing in mind that we have a whole regime of aggravated-type offences, which include where victims are particularly vulnerable or if there are second or third occurrences, where you get a higher level of penalty. We are not certain whether that has comprehensively been assessed in this instance. The penalties here are up to $20,000, or imprisonment for four years, so it is serious, but if it is consistent with the other we will confirm and get back to you in relation to that. I personally do not recall there being a comparator to other jurisdictions. I think this is more in relation to our own, but we will check that and if there is anything further to add, other than an assessment of the current regime of similar offences, we will provide that between the houses.

Ms HILDYARD: Attorney, could you outline how this section interacts with other jurisdictions in terms of notifications of breaches to other jurisdictions?

The Hon. V.A. CHAPMAN: By that, do I understand the member to ask for the purposes of assessing whether it is a second breach that there has been a breach of a different intervention order in another jurisdiction?

Ms HILDYARD: Yes.

The Hon. V.A. CHAPMAN: I am advised that under this law it is to be a breach of this jurisdiction and an intervention order made in this jurisdiction, not another.

Ms HILDYARD: I have a supplementary, if that is okay, just because I am very interested.

The CHAIR: We are just getting some clarification, I think.

The Hon. V.A. CHAPMAN: I will clarify first before I ask the member to repeat her question. The member may or may not be aware that we actually have a registration process for interstate orders. If that has occurred, then of course it can be treated here as though it is an order of our own and so would be, for the purposes of this law, able to apply. A simple example is a person moves here from New South Wales. They have an intervention order that was issued in New South Wales. It is registered in South Australia, so it is therefore enforceable here. If there is a second breach of that, then this law would kick in. Is that clear?

Ms HILDYARD: I think so. Just so I am absolutely clear, in that circumstance that first breach in our jurisdiction would constitute a second breach if there has been a breach in New South Wales?

The Hon. V.A. CHAPMAN: If an intervention order is made in New South Wales and it is breached, that is not treated as a first breach of the order until it is here. Obviously, whatever law applies in New South Wales is a matter for them. For the purpose of our assessment as to whether something is a second or subsequent breach, that breach in New South Wales would not count.

Ms HILDYARD: Okay, thank you.

Mr ODENWALDER: My question is separate, although it relates to the same clause. Attorney, during your consultation with SAPOL were any further changes to the intervention order regime asked for and then either contemplated and rejected, or rejected outright? Do you understand the question? Did SAPOL ask for any other changes to the intervention order regime or suggest that there might be any changes?

The Hon. V.A. CHAPMAN: I am not at liberty to obviously disclose—I have made this quite clear—the agency's submissions to us in relation to bills. Of course, the member is perfectly at liberty to raise these matters with SAPOL. We rely on them incredibly to support the operation of these intervention orders, both with them being made—and they have a very deliberative role now in relation to the making of orders on an interim basis, which are subsequently endorsed by courts, etc.—but also to protect usually women and children in circumstances of their application.

We try to work pretty hard with those enforcement agencies to ensure that if we set out a procedure it is practical in its application. I recall that when intervention orders were first recommended to be at a new standard by Maurine Pyke QC in her report on domestic violence about 10 years ago now, very substantial reforms were made in relation to domestic violence vis-a-vis intervention orders. A few years ago, there were further significant reforms, with the support of SAPOL, and amendments were made to enable senior officers to make orders at the doorstep.

So we do need to work hand in glove with SAPOL in relation to the practical application of these orders. The even more contemporary issue there would relate to the proposed Domestic Violence Disclosure Scheme. We needed to work very carefully with SAPOL on the practical application of that scheme. In fact, we relied on them to come up with a model, for the purposes of their recommendation and after consulting with other agencies, to be able to implement such a scheme.

In this area, it is particularly important that we understand the practical application. The second aspect of that is that, unless that can work, we will have great difficulty in expecting the police to be able to carry out the function. It defeats the purpose of having a new law if we do not have something that can actually be applied. I bear in mind that when the changes were made a few years ago the implementation of that law was delayed by over two years to enable police officers to be trained in what their new role was going to be.

Again, there has to be a practical application for this. From time to time they make recommendations in relation to powers they might have in relation to lawmaking, as an example. We listen to them. I do not recall their seeking anything else in this instance. If they have or if there are matters that are of concern to the member, we are happy to hear from you, but so far we have not.

Clause passed.

Remaining clause (15) and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:51): I move:

That this bill be now read a third time.

I thank all members who have contributed to this debate, including during committee, so that we are absolutely clear as to how this future law will apply. As a government and as a community, we do stand united in our view that domestic violence is unacceptable in any form.

With any new government, progressing important legislative and policy reform is a priority. This legislation, for me, for the Premier and for all other members of parliament, is an absolute priority. All too often the most pressing evidence that comes before me on a regular basis as Attorney is reading Coroner's reports. They are difficult to read. When a woman and/or children are victims of a violent event that results in death, to read the extraordinary amount of trauma often that that family has gone through, I think: what else can we do before we get to this point? Every time I finish these reports, I think to myself: well, how can we be better informed in those situations to be able to deal with this before it gets to that stage? Quite simply, I do not want to read any more.

I reflect on one I recently read from Victoria that relates directly to this bill at hand: the report into the death of Joy Rowley. It looks closely at the role of police and intervention orders and particularly strangulation. These are key issues across the country that are directly dealt with in this legislation. I am pleased to see that other jurisdictions are now moving on also creating a stand-alone strangulation offence. The evidence supporting this cannot be ignored. As noted in committee, some aspects of this bill come from the former government's domestic violence discussion paper and subsequent response.

Unfortunately, as I have said on many occasions, the former government chose not to progress these reforms. They did not progress with body-worn camera evidence being available to victims. They did not extend the definition of 'abuse' and they certainly did not progress with other vital proposals like the domestic violence disclosure scheme.

I can say personally the number of times that I raised that with the former attorney-general in the hope that he was going to progress that scheme. I do not doubt for one minute that there are other members in the parliament, not all sitting on our side of the house, who have also urged that this progress, but for whatever reason it did not. It is in stark contrast to what we have done.

We took our comprehensive domestic violence prevention policy to the election and we committed to a number of matters: firstly, $9 million of domestic and family violence crisis accommodation beds; $5 million for interest-free loans for non-government domestic violence organisations; $1.7 million for a women's safety service 24/7 crisis hotline; and $510,000 for a statewide trial of the Domestic Violence Disclosure Scheme, which, as we now know, is already in operation.

This bill, for us, adds on to that work and creates strong legislative change for victims of domestic violence. Beyond all aspects of the bill, we must remember that prevention is key to combating domestic and family violence. Out of the 23 convictions for homicide last year in South Australia, 10 were related to domestic violence. It is a staggering statistic. It sickens me every time I read it. In October alone, across the country we have seen nine women killed, seven allegedly in the context of current or former intimate relationship, and the other two are suspected to have died at the hands of male perpetrators. Quite simply, there has never been a more important time to strengthen laws around domestic violence.

I genuinely thank the parliament, particularly those who made a contribution to the debate in this bill, for their consideration and their support. I would like to make a comment in relation to another matter, which I will try to do as quickly as possible, as I realise the time. Mr Chris Boundy, who is a legal practitioner at the Legal Services Commission, recently went on ABC radio to outline some of the perspective of the Domestic Violence Disclosure Scheme because it is operational, as we know; it started early last month. There are important aspects of it that I think are important to repeat as to what is actually happening out there.

Firstly, there has to be a basis for suspicion that the police accept, on their assessment, justifies making the request and following up and providing that information to the applicant. The applicant has to be over 17, they have to be South Australian residents and their application must be made directly to SAPOL. There are aspects in relation to whether it is violence towards the person or whether there is financial controlling behaviour, or the like.

For the benefit of members, Mr Boundy set out in that interview a number of circumstances which he considered would provide a basis for assessment by police in these circumstances, which he describes as 'warning flags'. I think it is a very good list, and I thank Mr Boundy for providing it. He is very experienced in relation to legal work for the Legal Services Commission and, previously, in other practice. I will read them. He states:

…this is an assessment made by the Police based on their experience of what may be potentially an abusive relationship, but some of the warning flags...your partner might have insisted on moving in together after a very short time in the relationship; they might seek or gain access or control to your income through shared bank accounts...they might encourage you to quit your job making you financially dependent; you might see or hear them speaking disrespectfully or very aggressively about a former partner of theirs, they might overreact in a situation or get angry or frustrated very quickly or become very jealous and behave in a way that perhaps makes you have to account for where you are all the time...constantly calling you or texting you or asking you [where you are or] who they’re with; they might try and interfere with choices about your friends in your friendship group or appear to be very emotionally reliant upon you saying they couldn’t live without you or they don’t know what they’d do if you ever left them. If you have a cluster of those behaviours firstly the recommendation that we would make at the Legal Services Commission is that you can speak to properly qualified people at 1800 RESPECT to discuss your concerns but you can also...use this new application through SAPOL to make an inquiry as to...there’s anything else that you should be made aware of in relation to the behaviour of your partner...

I thank Mr Boundy for his contribution in that regard. I confirm for members that police are expected to possibly take up to two weeks to process these applications. If you have members in your constituency who seek advice about this, I urge you to remind them that this is not a process designed to be an emergency helpline. It is not something where urgent advice will be processed. If members know of people in their constituency or anywhere in their community, we would urge you to contact police, and if necessary contact them on 000, so that they can get urgent assistance. They are entitled to that, they deserve to have it and we want to encourage them to do that.

I would like to place on the record another thing that I have learnt; namely, when you fill out an application on the screen, the technology is so advanced, I am advised—and I have not seen this myself—that if your partner were to come into the room and see you online, you can press a button and all of the application details will disappear. That is designed exactly for a circumstance where somebody may feel as though they are under surveillance in terms of filling out this form. It is a special measure that has been added to facilitate that. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 13:01 to 14:00.