Criminal Law Consolidation (Section 20A) Amendment Bill

Second Reading

Mr BROWN: Sir, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (21:00): I move:

That this bill be now read a second time.

I am really pleased to rise to introduce the Criminal Law Consolidation (Section 20A) Amendment Bill 2024 into this house. This bill speaks to our government's deep commitment to tackling in every way that we can every aspect of domestic, family and sexual violence. We know that clear, effective strangulation laws are an important, crucial way to hold offenders accountable for their heinous actions and to better protect and empower survivors of domestic, family and sexual violence in ways that enable them to feel safe and confident in participating in all aspects of community life and in walking new, safer journeys.

Prior to the last election, we articulated a comprehensive policy focused on women's safety, wellbeing and equality. These themes are now reflected in our blueprint for women's equality. From opposition, we moved several pieces of legislation and advocated about multiple policies, places and investments that we saw could better tackle the horrific, ongoing scourge of domestic, family and sexual violence.

Tackle it we must, because its awful prevalence continues, with one woman in this country now killed every four days; with one in three women experiencing some form of violence from the age of 15; with women who experience violence dealing with lifelong consequences deleterious to her health, economic wellbeing, housing security and workforce participation; with new ways to harm women, including through technology, on the rise; with our community continuing to grapple with a situation where, as fast as we can roll out respectful relationship education, the Andrew Tates of the world are attempting to undo our work online in the most harmful of ways.

Just this morning, I was listening to the incredible Patty Kinnersly, CEO of Our Watch. She spoke about the disturbing number of young people who now see strangulation as part of sexual experience due to the horrific and prolific access to pornography by young people in our community depicting violence toward women and because the gender inequality that lies as the cause of domestic, family and sexual violence against women continues.

Domestic, family and sexual violence is insidiously prevalent in our community. Our government is committed to tackling this awful scourge of violence to the greatest extent that we can. The introduction of this really important bill is part of us doing so. The introduction of the bill follows a review into the effectiveness of the offence of strangulation in the Criminal Law Consolidation Act 1935 and involved targeted consultation with numerous key stakeholders. Thankfully there is increasing awareness that choking, strangulation and suffocation is a particularly dangerous form of violence which can have serious consequences. Strangulation is often cited as a precursor to domestic homicide; even applications of very little force can result in serious injury.

This bill will amend section 20A of the Criminal Law Consolidation Act 1935 to rightly strengthen the laws related to choking, suffocation or strangulation in a domestic setting. First, it introduces definitions for choking, suffocation and strangulation. This will clarify the elements for the offences of choking, suffocation or strangulation in a domestic setting so that they are not limited to proof of restriction of breath, which is the current application of those terms at common law here in South Australia.

Secondly, the new bill will introduce a new offence of choking, suffocation or strangulation in a domestic setting where harm is caused. Harm is defined as that which renders the person unconscious. This new offence is to have a maximum penalty of 10 years' imprisonment. There is a presumption against bail for those who are charged with this offence. This proposed top-tier offence, which incorporates the element of harm, recognises the consequence of the restriction of breath or blood flow and the inherent dangers of that conduct. The definition of harm, being that which renders the person unconscious, is consistent with the medical literature that suggests that strangulation can cause unconsciousness within seconds and with little force to the neck.

The new offence will complement the existing section 20A offence, which is to be retained in its current form with a maximum penalty of seven years' imprisonment, and with clarification of the elements through the introduction of definitions as I have spoken about for choking, strangulation and suffocation. Assault is a statutory alternative to both of these offences.

The availability of a two-tier offence structure in this context, and the retention of assault as an alternative, allows for greater flexibility in the prosecution of these matters consistent with the evidence in a particular case. Again, this bill speaks to our deep commitment to tackling every aspect of domestic family and sexual violence. We know that clear, effective strangulation laws are an important crucial way to hold offenders accountable for their actions and also to better protect survivors of domestic family and sexual violence.

Since coming to government we have progressed a range of other complementary legislative measures, preventative actions and policies and recovery options to tackle domestic family and sexual violence, including just yesterday in this house, progressing laws to finally criminalise coercive control, that insidious form of domestic violence that is a precursor to homicide in 99 per cent of cases.

We passed legislation to require electronic monitoring as a condition of bail for those who are charged with serious breaches of domestic violence intervention orders. We have amended the Equal Opportunity Act 1984 to make it unlawful to discriminate on the basis of the experience of domestic violence. That bill, and the bill in relation to making electronic monitoring a condition of bail for those who seriously breach intervention orders, are bills that we also moved from opposition. I am relieved that finally we have seen them pass this house in this term of government.

We have enshrined 15 days paid domestic family and sexual violence leave for workers engaged or employed pursuant to the state Fair Work Act, and this, of course, complements the 10 days paid domestic violence leave for those workers who are employed pursuant to the federal industrial relations system.

Rightly, we know that legislation only takes us so far. It is absolutely crucial, but in addition to our comprehensive legislative agenda we have funded and established the domestic violence prevention and recovery hub in the southern suburbs of Adelaide, The Yellow Gate, and the multi-agency protection hub in the northern suburbs of Adelaide.

I was so proud that following our election commitment and considerable work with communities in both the outer southern and outer northern suburbs of Adelaide, service providers in those areas, brave survivors and workers in other government agencies, through The Yellow Gate and the multi-agency hub in the north we have brought to life hubs, places that absolutely respond to what those communities told us they needed. Those communities and the community in the south told us that they wanted a place where any woman who was experiencing any sign or any concern about an experience of domestic, family or sexual violence had a place to go, and now they do. They have a place to go where there are people who can provide them with information, support, crucial referral to service providers and a place where they know that they are not alone.

Alongside the southern and the northern hubs, we have ensured that paid workers in the 10 regional hubs right across our state are now finally funded. The workers in those hubs are doing an extraordinary job, again, responding to the needs of their particular communities. We have also reversed the cuts of those opposite to funding for the Women's Domestic Violence Court Assistance Service and Catherine House.

Further, our government is rightly taking a significant step to ensure that we have the full evidence base to drive and keep driving the most effective change through our Royal Commission into Domestic, Family and Sexual Violence. As we all know in this house, incredibly respected South Australian advocate, author and former diplomat and Senator Natasha Stott Despoja AO is leading our state's Royal Commission into Domestic, Family and Sexual Violence. After formally commencing in July 2024, the royal commission is expected to take 12 months and absolutely has the power to recommend policy, legislative, administrative and structural reform, and to do so across the four domains that accord with the domains of the national plan—that is, the domains of prevention, early intervention, response and recovery and healing.

Further, the royal commission in its terms of reference has been asked to look at how we best coordinate our efforts right across government together with the community and the sector, and how we better coordinate our efforts across all those domains. In the terms of reference, we also call on the royal commission to investigate the horrific emerging forms of sexual violence perpetrated online and the misogynistic content that is driving young men to contemplate that violence. We have asked the royal commissioner to look into that very serious set of issues and to provide us with advice about the best way forward in relation to them.

We know that recommendations will be directed at designing a domestic, family and sexual violence system to better meet the needs of those who interact with it and which is capable of delivering the generational change required to prevent and eradicate the scourge of domestic, family and sexual violence.

We know that the commissioner has rightly opened up input from right across our community. We know that just recently she has held a really important forum also with children and young people to absolutely understand, as per the terms of reference, what the impact of domestic, family and sexual violence is on children and young people and what we can do better to support those children and young people who witness it and experience it, and how we can better see them as survivors in their own right and provide them with the necessary supports to get through that experience and to help end those intergenerational cycles of violence being perpetrated.

We know that the royal commissioner is also out in the regions closely listening to people and that there will be further opportunities for submissions to be made and further opportunities continuing for people to share their own experiences. I really want to thank the royal commissioner for her work. We know that the royal commission, as well as doing its work through the terms of reference, is absolutely generating crucial community discourse and sending through that discourse a really important signal to survivors that they will be heard, their voices will be acted upon. It is sending a really important signal to those who are perpetrating violence that it has absolutely no place in our community.

I wholeheartedly thank the royal commissioner and her team for her work and I also thank those incredible workers in the domestic, family and sexual violence sector who, whether they are working in crisis accommodation, perpetrator intervention, or programs at our hubs to provide that early support, those workers, so many of them, spend their entire lives working in this sector and the difference that they make is absolutely profound.

So I say thank you to them and I also say thank you to those many survivors who have informed this legislation and who are at the heart of everything that our government does in carrying out the many legislative, policy and programmatic changes that we committed to make to make sure our state is one where violence is not tolerated and everybody can live their lives freely, safely, equally and able to participate in community life and in our economy in whichever way that they choose.

This bill that we debate in this house tonight is another really important step forward in our legislative response to domestic, family and sexual violence and I commend it to the house and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 20A—Choking, suffocation or strangulation in a domestic setting

This clause amends section 20A of the principal Act to create an additional offence relating to choking, suffocation or strangulation in a domestic setting. The clause also defines terms to support the measure. A scheme for alternative verdicts is also provided.

Schedule 1—Transitional provision

1—Transitional provision

This clause provides for transitional arrangements.

Ms THOMPSON (Davenport) (21:17): I rise today in strong support of the Criminal Consolidation (Section 20A) Amendment Bill 2024. This bill is necessary, and while I wish we did not find ourselves needing to legislate so explicitly against strangulation in domestic settings, the harsh reality is that action is required. Currently, the Criminal Law Consolidation Act requires proof of restricted breathing for choking or strangulation, based on a Queensland Court of Appeal precedent. This narrow definition has proved inadequate. Now with heartbreaking clarity we see the need for change and this bill delivers it.

The bill amends section 20A to broaden the legal scope of choking, suffocation and strangulation offences in domestic settings, no longer limiting the definition to restricted breath. Alongside the existing seven-year penalty and presumption against bail, this bill introduces a new offence carrying a 10-year penalty for those who cause harm, rendering a person unconscious, also with a presumption against bail.

In practical terms, this bill strengthens protections against choking, suffocating or strangling a person in a domestic setting and allows prosecuting agencies greater flexibility based on available evidence. I hope this amendment reassures women that the state government is serious about addressing domestic violence, particularly domestic strangulation; yet, I cannot hide my anger and sorrow. Violence against women and children remains one of the leading causes of homelessness in Australia—that is a fact. One in four Australian women has suffered emotional abuse by a current or former partner—that, too, is a fact. Tragically, on average, one woman dies at the hands of an intimate partner every four days. These statistics continue to get worse, and we continue to share them in this place year after year, yet here we are again still fighting to protect victims.

Today, we seek to redefine domestic strangulation as the applying of pressure to a person's neck to an extent capable of affecting their breath or blood flow to their head. Women continue to die at an appalling rate, and we must act to ensure perpetrators are held accountable.

The evidence is clear that strangulation in a domestic setting often precedes domestic homicide. A review requested by the Attorney-General highlighted that too many cases of strangulation are being discontinued due to lack of clarity in the law. In May 2022, The Advertiser reported that only 1.9 per cent of strangulation cases led to conviction, a damning statistic—1.9 per cent.

Infuriating does not come close and my heart breaks for those women and their families. No-one deserves to live in fear, and no-one should ever have their life taken at the hands of a violent partner. We must ensure our prosecutors and courts are well equipped to handle these cases. If the burden of proof is too high, abusers walk free. It is not right, and I am glad that we are addressing it today.

I extend my gratitude to the Attorney-General for his leadership on this critical issue. Regardless of party lines, we can all agree that this demands sensitive leadership and swift action. Alongside the Minister for Women and the Prevention of Domestic, Family and Sexual Violence, the Attorney-General has risen to this challenge. The Minister for Women and the Prevention of Domestic, Family and Sexual Violence has also introduced vital reforms to this house. Listening to her just now speak to some of those, I am inspired and really proud to be part of her team. She is doing incredible work in this space, so thank you.

Including the criminalisation of coercive control, a bill that I spoke on also this week, everyone deserves autonomy and freedom from fear, whether in a relationship or rebuilding their lives after leaving one. Research shows that coercive control, like strangulation, is a precursor to domestic homicide. Every effort we make to address these behaviours or remove violent individuals from our community is an effort worth making.

I reiterate my deep disappointment that legislation is necessary. It is a damning indictment of where we are as a society. It is our duty to protect women, children and indeed all people from the horrors of domestic violence. With that, I commend this bill to the house.

Ms HOOD (Adelaide) (21:22): I, too, rise in support of the Criminal Law Consolidation (Section20A) Amendment Bill. Last Friday, I attended the White Ribbon Breakfast with many of my parliamentary colleagues on both sides, along with our Governor, Her Excellency, the Hon. Frances Adamson; our Premier; the Minister for Health and the Deputy Police Commissioner.

This year, we were asked to 'Wake up to change', a powerful invitation to acknowledge the crisis and to act. That is exactly what we are doing in the parliament this evening through this amendment bill. The state government is implementing its comprehensive legislative policy, program and reform agenda to help tackle the horrific scourge of domestic, family and sexual violence and support survivors.

Every lever to prevent, intervene and respond to domestic, family and sexual violence must be used. So, when a review of 2019's strangulation laws instigated by the Attorney-General in the other place in 2022 and released last year found a lack of clarity around what police and prosecutors need to prove the offence and that too many cases are discontinued, the Malinauskas government knew that action must be taken. In fact, media reports at the time highlighted the significance of this issue. The Advertiser in 2022 reported, as the member for Davenport was just saying, that only 1.9 per cent of strangulation cases end in conviction, with only 1.5 per cent of those offenders sentenced to immediate prison time, which is just devastating.

Clear, effective strangulation laws are needed to hold offenders accountable for their actions and to also better protect victim survivors of domestic, family and sexual violence. By clarifying the laws, we will remove some of the obstacles that have hindered prosecutions in the past by making it clearer when an offence has been committed and what needs to be proved in the court.

This bill is among numerous measures undertaken by the Malinauskas government to address violence against women. On 1 October this year, landmark domestic violence reforms aimed at better protecting survivors came into effect, with the new laws ensuring that any defendant granted bail on a charge of breaching a domestic violence-related intervention order by either threatening or committing a violent act would be subject to mandatory home detention and electronic monitoring.

The commencement of that legislation fulfilled a key election commitment of the Malinauskas government. We also passed legislation regarding 15 days of paid domestic, family and sexual violence leave for those employed pursuant to the state industrial relations system, as well as legislation to make the experience of domestic violence a ground of discrimination under the Equal Opportunity Act.

Additionally, the government has funded and established new domestic, family and sexual violence prevention and recovery hubs, implemented an awareness campaign around coercive control, and also importantly established a royal commission into domestic, family and sexual violence led by commissioner Natasha Stott Despoja AO.

I, too, would like to acknowledge the tireless efforts of the Attorney-General, the Hon. Kyam Maher MLC, in the other place for his work on these reforms, along with his staff and his department who work closely with SAPOL, the DPP and other key stakeholders such as the Courts Administration Authority, the Commissioner for Victims' Rights and the Office for Women.

Thank you to the indefatigable Minister for Women, Katrine Hildyard, who is relentless in her pursuit of a safer world for women and girls.

To the co-convenors of the White Ribbon Breakfast, Jillian and Cintra, and to the whole White Ribbon committee, host Will McDonald, and everyone who attended the White Ribbon Breakfast last Friday, each and every day we will Wake Up to Change. We will act through policy reforms and legislation like this amendment bill, we will speak up because we know that the standard we walk by is the standard we accept, and we will keep showing up to breakfasts, to walks, to vigils, so that one day we wake up and will not need to fight this evil issue anymore. I commend this amendment bill to the house.

Mr TEAGUE (Heysen) (21:26): I rise to indicate I am the lead speaker for the opposition. I indicate the opposition's support for the bill and indicate my appreciation of the contributions of those members to the second reading debate.

There is a bit of time to spend in committee in relation to what is really the addition of a second offence with the addition of the threshold of harm that has been defined in the bill to be hinged on a victim being rendered unconscious, and there is a bit to work through about that.

The history, as we know, of the addition of this division of part 3 of the Criminal Law Consolidation Act goes back to the 2018 bill introduced by the then Attorney-General, the Hon. Vickie Chapman, in the early days of the Marshall Liberal government. That addition of the new division 7AA that is headed choking, etc. in a domestic setting is where the section 20A offence is presently found. It is true to say, as the members for Davenport and Adelaide have both adverted, that the history of successful prosecution has been perplexingly low. It has been complicated by what is inherently a complicated criteria to constitute the offence and there has been work on the definition at the same time as the addition of this new harm-based and more serious offence as is shown by the maximum penalty being imprisonment for 10 years to sit alongside the basic offence with a maximum penalty of seven years.

The matters that are perhaps appropriately raised at the committee stage are all the subject of considered treatment by predominantly the Law Society in its response to the government's consideration of this over the last couple of years. As I said at the outset, it is, I think, important to note at this stage that there has been a choice to focus on the rendering unconscious of a victim, and it is important to appreciate that that is going to create a need to evidence matters like the expert evidence from experts, including medical specialists, that will be necessary in order to prove the offence.

It is good to flag that this is an area of the Criminal Law Consolidation Act that is still relatively new. It has so far had a history of somewhat perplexing data in terms of prosecution of offences the subject of it, and so it will remain still to be seen whether or not we see a greater level of effective prosecution in what is undoubtedly a very serious area of criminality. There are a range of concerns that are expressed about aspects associated with the offence, the likely impact on those, particularly Aboriginal communities that have been the subject of consideration by the Aboriginal Legal Rights Movement.

It is important to be careful, as it were, to just be aware at this stage that work has been ongoing and considered in this space for now several years. There is a specific offence that has been a part of the act for some time, and so the refinement of it, the addition of the more serious offence, will now need to be subject to a test in the real world. Certainly it is my wish that this renders prosecutions more effectively able to be undertaken, and also that the evidentiary requirements that are inherent in the tests for proving harm do not create an insurmountable hurdle to their effective deployment. I commend the bill, and I just flag those matters that I will raise in the course of the committee.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (21:33): I just want to say thank you very much to the member for Heysen for expressing the opposition's support and for his comments, and I thank the member for Adelaide and the member for Davenport for their impassioned speeches. Listening to both of those outstanding members, I was just contemplating the fact that when I first was in this place 10½ years ago and I gave my inaugural speech, I thought long and hard about sharing things about particular experiences.

I made the decision to do so because I think that here in this place we have a responsibility to encourage others to speak up and to feel confident that action will be taken and that, as community leaders in here, we will respond in every way that we can to domestic, family and sexual violence. I was just so pleased to listen to these two excellent women who are both warriors in this shared quest to prevent and eradicate domestic, family and sexual violence. I certainly feel strengthened by their resolve and I know that many in their communities and, indeed, right across the state feel similarly. Thank you so much for your words tonight and for your actions in the space, and thank you again to everybody who has worked incredibly hard on this bill that we progress tonight.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mr TEAGUE: As I indicated in the course of the second reading, I am focused on the test of causing of harm, connected as it is to the rendering unconscious of the victim. The new offence is constituted by the existing tests: being in a relationship with the other person; choking, suffocating or strangling the other person without the other person's consent; and, in (c), causing harm to that other person such that the other person is rendered unconscious. In determining the definition of harm, how did the government come to settle on the rendering unconscious as being the most convenient and effective test of that relevant seriousness?

The Hon. K.A. HILDYARD: The answer is threefold. First of all, it responds to feedback from the medical profession and, indeed, to the various medical literature about this particular sort of harm. Secondly, it responds to very detailed discussion and feedback from both SAPOL and DPP about particular factors in cases and the sorts of difficulties that were being experienced in terms of establishing harm. Also, the third factor is that the way harm was described in other jurisdictions was considered, particularly in New South Wales and the ACT.

Mr TEAGUE: I perhaps just note for context, having raised it, by its most recent contribution, I think, the Law Society by letter to the Attorney-General, dated 20 September 2024, at paragraph 14, puts it this way. It describes its concern about the evidentiary test that is inherent in the new definition. The Law Society says at 14, and I quote:

The Society underscores the complexity of the evidence that may be required to prove that choking or strangling has occurred for the purposes of this revised definition, noting that 'affecting the breath' of a person is difficult to quantify. Attempting to establish this may necessitate the provision of expert evidence from an ENT specialist which, in the professional experience of Members of the Criminal Law Committee is difficult to obtain and may not necessarily be determinative.

I just put that on the record in case the minister has anything to say by way of reassurance in relation to consideration of the practicalities of proof. I would invite the minister to provide any further response to that expression of concern.

The Hon. K.A. HILDYARD: Two things: first of all, I would point the member to subclause (3)(4)(a), which provides:

(a) choking or strangling a person means the applying of pressure to the person's neck to an extent that is capable of affecting the breath or the flow of blood to the head of the person;

I emphasise the word 'capable' in that regard. Also, to answer the question in a broader sense, it is clear that evidence can be provided, as the Law Society suggests, through the medical profession. However, evidence can also be provided through the statement of a victim survivor or a combination of those two factors.

Mr TEAGUE: Returning then to 'unconsciousness'—and I perhaps say at this point I appreciate the opportunity to have received a briefing from the Attorney's office in this regard. It is something that has had a run in that context. Is the government satisfied—and the minister has referred to the possibility of evidence from the victim—that it is possible by way of expert evidence satisfactorily to prove that unconsciousness resulted from a particular conduct; that is, by medical or scientific expert evidence, as opposed to relying on the recollection of the victim, for obvious reasons?

The Hon. K.A. HILDYARD: I think it is hard to categorically answer that question in the affirmative because, as the member would appreciate, in every case there is a particular set of facts and circumstances, and in particular cases with particular sets of facts and circumstances, of course there would be a balancing in that context of both the medical evidence and the evidence from the victim survivor. I think it is hard to predict the balance between those two particular sets of evidence given the various context in which these cases will arise.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (21:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.