Bills

Criminal Law Consolidation (Abusive Behaviour) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:04): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Evidence Act 1929. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:04): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr Speaker, the Government is pleased to introduce the Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021.

The Bill creates new offences in the Criminal Law Consolidation Act to criminalise coercive, controlling and abusive behaviours in the context of intimate partner relationships. This will address an aspect of domestic violence that has previously not been covered within existing criminal offences.

Coercive control is an insidious form of domestic violence that involves tactics of emotional and mental abuse which undermine the victim's autonomy and sense of identity. It can manifest itself in acts such as isolating a person from their friends and family, controlling what a person can wear, when they can sleep, what they can eat and when they can leave the house. It can involve tracking a person's movements and using technology to keep them under surveillance.

Research has shown a clear connection between coercive control and domestic homicide. This came to national attention following the murder of Hannah Clarke and her 3 young children by her ex-partner in Queensland in early 2020. Coercive control legislation has existed in the United Kingdom since 2015.

Across Australia there is growing momentum to consider coercive control offences. These must work hand in hand with non-legislative reforms including public awareness and education campaigns, training for responding professionals and agencies and an encouragement of victims of abuse to seek help.

The South Australian government is committed to the implementation of these non-legislative reforms. For this reason, the usual rule that a Bill will automatically commence 2 years after being enacted has been disapplied in Clause 2 of the Bill.

Turning now to the provisions of the Bill. The Bill inserts two new offences in the Criminal Law Consolidation Act.

Proposed new section 20B(1) creates an offence of engaging in abusive behaviour where a person has been, or is, in a relationship with another person.

The first offence is made more serious with a higher maximum penalty if the behaviour involves a child. This offence will apply if:

one or more of the acts of abuse consist of, or include behaviour or a threat to engage in behaviour, that is directed at a child; or

The person makes use of a child, or threatens to make use of a child, in 1 or more of the acts of abuse comprising the abusive behaviour; or

a child sees or hears one or more of the acts of abuse comprising the abusive behaviour.

This offence recognises the importance of deterring the use of children as part of abuse tactics, and the need to prevent the harm caused to children, and society in general, by exposing children to this type of conduct.

Engaging in abusive behaviour involving a child will have a maximum penalty of imprisonment for 7 years, making it a major indictable offence.

Proposed new section 20B(2) contains an offence of engaging in abusive behaviour where a child is not present or involved in any way. This offence will have a maximum penalty of imprisonment for 5 years.

I will turn to some of the key definitions contained in the Bill in Clause 12. These provide important context in considering how the offences operate.

As set out previously, the offence applies where the offender is, or has been, in a relationship with the victim. For the purposes of the offences, two people are in a relationship if:

they are married to each other; or

they are domestic partners; or

they are in some form of intimate personal relationship in which their lives are interrelated and the actions of one affects the other. This would capture, for example, a boyfriend / girlfriend scenario where the parties do not reside together.

The offences require three or more acts of abuse to have been committed. An act of abuse can be committed either intentionally or recklessly.

An act of abuse is committed intentionally if the person intends by their conduct to cause harm to the other person.

An act of abuse is committed recklessly if the person is aware of a substantial risk that the conduct could cause harm to the other person and engages in the conduct despite the risk and without adequate justification. It will be assumed the defendant did not have adequate justification for their behaviour, unless they prove otherwise.

The term 'act of abuse' includes a wide variety of conduct, much of which is not currently criminalised. It is the criminalisation of these acts of abuse which is such a significant step forward in the deterrence of this form of domestic violence.

Some of the type of conduct captured by the definition of 'acts of abuse' are

behaviour which is humiliating or degrading;

isolating the person from friends or family;

tracking or monitoring the person's movements, activities or communications;

denying the person financial, social or personal autonomy;

denying access to food, clothing, sleep and medication; and

withholding financial support.

As I have already said, the acts of abuse require either an intention to cause harm or a recklessness as to whether harm could be caused. The term 'harm' also has a broad definition and includes emotional or psychological harm whether temporary or permanent.

Schedule 1 of the Bill contains complementary amendments to the Evidence Act 1929 so that the new abusive behaviour offences are included in the definition of 'serious offences against the person'. This will mean that a range of provisions within the Evidence Act designed to support vulnerable witnesses will be available to victims of the new offences, providing them with additional supports throughout the court process.

Mr Speaker, this Bill aims to reduce the occurrence of domestic violence in our community by the criminalisation of coercive control. It is part of wider reforms supported by the Marshall Liberal Government to address domestic and family violence.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Substitution of heading

This clause makes a consequential amendment to the heading of Part 3 Division 7AA of the principal Act.

5—Insertion of sections 20B and 20C

This clause inserts sections 20B and 20C into the principal Act as follows:

20B—Abusive behaviour

This clause creates an offence for a person to engage in abusive behaviour in relation to a person with whom the offender is, or was, in a relationship.

If the behaviour involves or is witnessed by a child, the maximum penalty is 7 years imprisonment, and in other cases is 5 years imprisonment.

The clause defines key terms used in the offence and makes provision for alternative verdicts in specified circumstances.

Consistent with section 5B of the principal Act, the clause places the onus of proving that adequate justification for the relevant behaviour existed on the defendant.

20C—Review of section 20B

This clause requires the Minister to cause a review of the operation of new section 20B to be conducted and a report on the review to be prepared and submitted to the Minister. That report is to be laid before Parliament.

Schedule 1—Related amendment to Evidence Act 1929

1—Amendment of section 4—Interpretation

This clause amends section 4 of the principal Act to add an offence against new section 20B of the Criminal Law Consolidation Act 1935 to paragraph (d) of the definition of serious offence against the person.

Debate adjourned on motion of Hon. A. Koutsantonis.