Statutes Amendment (Intervention Orders and Penalties) Bill

Committee Stage

In committee.

(Continued from 5 May 2021.)

Clause 1 passed.

New clause 1A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 2, after line 5—After clause 1 insert:

1A—Commencement

This Act comes into operation on a day to be fixed by proclamation.

This is to insert a new commencement provision to provide for the act to come into operation on a day to be fixed by proclamation. This replaces the assent process and largely comes about as a result of requests from SAPOL and the Courts Administration Authority (CAA) to enable them sufficient time to implement the changes. I understand that has been acknowledged.

New clause inserted.

Clause 2 passed.

Clause 3.

The Hon. V.A. CHAPMAN: I move:

Amendment No 2 [AG–1]—

Page 2, line 14 [clause 3(2)]—Delete subclause (2) and substitute:

(2) Section 31(1), expiation fee—delete '$160' and substitute '$315'

This is an amendment to substitute subclause (2) of the current subclause (2), as written. The government notes that clauses 3(1) and 3(2) of the bill remove the ability to expiate for the offence of failing to comply with a term of an intervention order to undertake an intervention program under section 31(1) of the Intervention Orders (Prevention of Abuse) Act 2009 and increase the penalty for the offence from $1,250 to $2,000 and provide for a maximum term of imprisonment of two years.

Although the government supports the increase in the maximum penalty in the imposition of a term of imprisonment, it considers that the option for the expiation fee should be retained. Amendment No. 2 standing in my name retains the ability to issue an expiation notice for the offence and increases the expiation fee from $160 to $315. Failing to comply with the term of an order to undertake an intervention program may be very trivial, for example failing to attend the intervention program on one occasion.

A breach of this nature does not involve any behaviour directed towards the protected person or their children. As a result, it is appropriate for it to be possible to expiate for such an offence, rather than laying a charge to be dealt with by the courts. In moving amendment No. 2 standing in my name, I indicate the importance of retaining this power for such matters.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 3 [AG–1]—

Page 2, line 17 [clause 3(3)]—Delete '5 years' and substitute '3 years'

Amendment No 4 [AG–1]—

Page 2, line 18 [clause 3(3)]—Delete '7 years' and substitute '5 years'

These amendments essentially substitute five years for three years and seven years for five years respectively. At present, a person who breaches an intervention order under section 31(2) of the act is liable to a maximum penalty of $10,000 or two years' imprisonment. Clause 3(3) of the bill removes the monetary penalty and increases the maximum term of imprisonment for the basic offence of breaching any other terms of an intervention order under section 31(2) of the act to five years and also creates a new aggravated offence for the maximum penalty of seven years' imprisonment.

The government supports the creation of an aggravated offence and an increase in penalties. However, the penalties proposed by the bill are inconsistent with other offences under the Criminal Law Consolidation Act 1935 and would, in the case of an aggravated offence, require the offence to be dealt with in the District Court as a major indictable offence. As a result, amendment No. 3 reduces the proposed maximum term of imprisonment for the basic offence in 31(2) to three years' imprisonment, and amendment No. 4 reduces the maximum term of imprisonment for the new aggravated offence in 31(2) to five years.

The government amendments will ensure that a breach which is a first offence and which does not involve physical violence, or the threat of physical violence, can continue to be dealt with in the Magistrates Court as a minor indictable offence. They also ensure that the penalties are consistent with the following penalties in the Criminal Law Consolidation Act—namely, three years' imprisonment for aggravated assault under section 20(3) and four years' imprisonment for aggravated assault causing harm under section 20(4) and, where the offence is aggravated by the use of, or threat to use, an offensive weapon, five years' imprisonment. I have moved those amendments standing in my name.

Ms HILDYARD: I have a very brief question and that is that I understand that these amended penalties that the Attorney-General has put forward will bring these penalties into line with the penalties around strangulation and choking offences; is that correct? Could you talk about how they interact?

The Hon. V.A. CHAPMAN: This brings it into line in relation to assault and aggravated assault, including using a weapon in the sections I have just referred to in the Criminal Law Consolidation Act. Strangulation is a different offence, and that stands in its own right under the Criminal Law Consolidation Act and, from memory, has up to 15 years' imprisonment, but that is a different matter.

If there is strangulation, which does not require the oxygen to be cut off to the victim but is a very serious offence, we are not treating that in this category. We are saying that if this is an assault or an aggravated assault, as distinct from strangulation, which is a really serious matter, then it is comparable with the current criminal law relating to assault and aggravated assault and the sections I have just mentioned.

Amendments carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 5 [AG–1]—

Page 2, line 21 [clause 3(4)]—Delete '10 years' and substitute '7 years'

Amendment No 6 [AG–1]—

Page 2, line 22 [clause 3(4)]—Delete '12 years' and substitute '10 years'

These amendments essentially delete 10 years' imprisonment and substitute seven years, and 12 years' imprisonment and substitute 10 years. The government notes that there is currently a maximum penalty of $20,000 or four years' imprisonment for an offence order where either (a) the contravention constitutes a second or subsequent such contravention or (b) the act or omission alleged to constitute the contravention involves violence or a threat to physical violence. The bill proposes to amend this provision to remove the monetary penalty and increase the term of imprisonment to 10 years for a basic offence and 12 years for an aggravated offence.

While the government supports the creation of an aggravated offence and an increase in penalties, the significant increase proposed by the bill is inconsistent again with other offences under the Criminal Law Consolidation Act. As a result, amendment No. 5 reduces the proposed maximum term of imprisonment for the basic offence under 31(2aa) from 10 to seven years and amendment No. 6 reduces the proposed maximum term of imprisonment for the new aggravated offence under 31(2aa) from 12 to 10 years.

These penalties are consistent with the aggravated offence of causing harm under section 29(3) of the Criminal Law Consolidation Act, which has a maximum penalty of seven years. Again, to ensure that there is consistency, I have moved these amendments.

Amendments carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 7 [AG–1]—

Page 3, lines 2 to 10 [clause 3(5), inserted subsection (5)]—Delete inserted subsection (5) and substitute:

(5) For the purposes of this section, an aggravated offence is an offence committed in circumstances where the offender knew or suspected, or ought reasonably to have known or suspected, that there was a reasonable likelihood that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct.

Clause 3(5) of the bill specifies that an offence under section 31 of the act is aggravated. Under paragraph (b), the offence is aggravated if the offender, in the course of committing the offence, threatened to restrict a person’s access to the person’s child. This may involve a simple threat to go back to the Family Court to seek changes to access arrangements or—of course, more seriously—a threat to kidnap a child.

While the government supports the creation of aggravated offences, it is concerned about the potential for a simple threat to cause an offender to face significantly higher penalties under section 31. As a result, amendment No. 7 removes paragraph (b) from the bill.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–2]—

Page 3, after line 13 [clause 3(5)]—After inserted subsection (6) insert:

(6a) An offence against this section must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 5 years, the Court must commit the person to the District Court for sentence.

I read that out to ensure that all members are familiar with that because I understand that extra copies are not currently available. To explain the situation—and this was information that we were advised on from the drafters relatively late in the discussions on this matter—the government proposes a final amendment to the bill to ensure that offences against section 31 of the act can continue to be dealt with by the Magistrates Court.

The increased penalties proposed by the bill and the government amendments make the offences under section 31 of the act major or minor indictable. This means that, in the absence of this amendment, for the major indictable offences the Magistrates Court would no longer deal with them and they would be committed to the District Court. For the minor indictable charges, the defendant would be able to elect to be dealt with in the District Court before a jury.

It is anticipated that making these offences either major or minor indictable will lead to a significant increase in the number of matters to be dealt with by the District Court, including by way of a jury trial. This would require a significant increase in resourcing for the District Court to manage the increased volume in trials, as well as the DPP who would prosecute them. It was therefore submitted to the government—and, therefore, accordingly I advise the parliament—that it is preferable that, even with the availability of increased penalties, these matters continue to be prosecuted in the Magistrates Court, the same forum where they are currently managed.

Amendment No. 1 that I am presenting in [AG-2] provides that offences under section 31 will continue to be dealt with by way of the Magistrates Court as a summary offence. However, and importantly, in order to ensure that offenders are subjected to the appropriate penalty once found guilty, if the Magistrates Court determines that a penalty of more than five years' imprisonment should be imposed, then it must—not may or think about it—commit the defendant to the District Court to be sentenced. With that, I commend this amendment, acknowledging the significance of the seriousness of these breaches, but obviously to also take into account the practices and operation of the courts.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. V.A. CHAPMAN: I move:

Amendment No 8 [AG–1]—

Page 3, line 21—Delete 'Section 52(1), definition of serious offence—after paragraph (g)' and substitute:

Section 52, definition of serious offence, (b)—after subparagraph (x)

Amendment No 9 [AG–1]—

Page 3, line 22—Delete '(ga)' and substitute '(xa)'

These are technical amendments which are required because the Sentencing Act has been amended since the bill was first introduced and, as a result, the government proposes to amend clause 4 of the bill to fit with that current paragraphing.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

Ms HILDYARD (Reynell) (11:15): I move:

That this bill be now read a third time.

I have spoken earlier this morning, and indeed many times in this house, about the fact that our community has absolutely had enough of the appalling scourge of violence against women and children. Almost two months ago we saw women take to the streets to march for justice, calling out that enough is enough. On coming into this place, and every day since, I have committed myself to doing whatever is within my power to ensure we work together to end this terrible scourge of domestic violence.

Our community is rightly demanding change. Our community is demanding an end to this utterly unacceptable level of domestic violence that sees more than one woman killed every week in this country at the hands of a partner or former partner, demanding an end to any victim blaming, an end to any softening regarding these appalling and inhumane acts of violence. Our community is absolutely united in wanting everyone to get the message that violence is never, ever an option, that it is utterly unacceptable and that there is never an excuse.

Our community is united in wanting us to find a way to end the terrible gender inequality we know lies as the root cause of domestic violence, and our community is saying very loudly that it calls on us as parliamentarians to do whatever is in our power—to say more, to act more and indeed to legislate more—to end this terrible scourge. That is why I introduced this bill after lengthy consultation with the Women's Legal Service, with women who have experience with domestic violence, with a number of women's organisations and advocates, who repeatedly advised me that fines, as a deterrent for breaches of domestic violence intervention orders, are simply not working and that they wanted change.

I am very grateful for the advice of the Women's Legal Service, particularly Zita Ngor, and for the advice of other women's organisations and domestic violence service providers, about how fines are not working as a punishment option. That is why I moved a bill that essentially takes away using fines—which largely go unpaid in relation to breaches of domestic violence intervention orders—as punishment options, and moves to custodial sentences. This bill is all about sending a message that domestic violence will not be tolerated and that if you repeatedly breach domestic violence intervention orders you will be much more severely punished.

I am very pleased that the government have now changed their mind and decided to support the bill. I am very grateful for that support. Whilst I would have preferred the penalties to remain at the strongest possible penalties, I am very pleased that we got to a position where fines are no longer a punishment option and that custodial sentences remain as the punishment option for repeated breaches of domestic violence intervention orders.

I thank the Attorney for her negotiation around these issues and for supporting this bill. I wholeheartedly thank the crossbenchers for their support of and backing for this measure. Of course, I thank all my Labor colleagues for their support of this bill, particularly the member for Elizabeth, who has been an advocate for any measures we can put in place in this place to help end the terrible prevalence of domestic violence in our community. Again, I thank all those advocates who have spoken with me about the need for these changes.

As I said earlier this morning in relation to debate on another bill, as parliamentarians it is absolutely incumbent upon us to do everything we possibly can to prevent and end domestic violence. There are many preventative and educational measures that we must put in place. On a couple of occasions, I have also set out in this parliament the need for us to progress four pieces of legislation—legislation that we can progress immediately. I am pleased that we have moved forward on this measure and I look forward to working with all members of this house to urgently progress the others I outlined earlier this morning.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:21): Firstly, I congratulate the member on introducing legislation that, although significantly amended, has now been successful in this place. Whilst the idea here is to change the penalties from fines and imprisonment to imprisonment, and in a much more modified way, I am grateful that again the member saw the sense in maintaining the provision for notices to be issued under our expiation procedure. That would have otherwise created a nightmare for the courts, I suggest. In any event, I think a sensible compromise has been reached.

In the event that an extra penalty as to imprisonment does save someone's life or does protect children in these circumstances, then of course I am sure it is the will of the whole house that that be successful and that that be the case. I will not comment on other bills, as they are not really the subject of the matter before us. However, it is incredibly important that we continue to remain vigilant to what can work and what improvements can be made.

I will be making some statements in due course as a result of the massive amount of money that has been allocated under the federal budget, handed down last night, in relation to women's safety and how that might apply and benefit women and children in South Australia and how we will work with the commonwealth to ensure that is done. I am sure a lot of agencies in South Australia will welcome those funds and resources to enable us to continue this attack on what is obviously known as household terrorism and so we will work in that regard.

Bill read a third time and passed.