Intervention Orders (Prevention of Abuse) (Recognition of National Domestic Violence Orders) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. P. MALINAUSKAS: I thank members for their second reading contributions on this bill. This is, no doubt, an area of great concern to all of us in the wider community, as evidenced by the significant response to the government's Domestic Violence Discussion Paper, released for consultation last year.

The ability for police and courts to issue intervention orders in South Australia, or for persons to apply for such orders, is of great importance in protecting victims from abuse, including domestic violence victims. The terms of an intervention order, whether interim or final, can include any form of restraint needed to protect the victim from abuse. Similar legislation that allows for the issue of an order to protect victims of domestic violence exists in all jurisdictions.

The current bill seeks to build on these important protections for domestic violence victims in allowing the automatic recognition and enforcement of domestic violence orders anywhere in Australia. It represents South Australia's commitment to working with all other jurisdictions in tackling the scourge that is domestic violence.

The model provisions on which this bill is based were developed by the National Domestic Violence Order Scheme Working Group. The working group consisted of representatives from police services, attorneys-general departments and courts from each state and territory. The model provisions were endorsed by the Law Crime and Community Safety Council and the Council of Australian Governments. The government consulted with both South Australia Police and the Courts Administration Authority on the South Australian draft bill.

The current bill is expected to be followed by further reform in response to domestic violence, arising out of the feedback received to the government's Domestic Violence Discussion Paper, released on 24 July last year. Publishing an unprecedented level of SAPOL data on domestic violence in South Australia, the discussion paper shone a light on the extent of this scourge on our community and posed various topics for feedback from the entire community.

Consultation ran for six weeks and feedback was received through a number of channels, namely, written submissions, a community survey and a sector survey targeted at people working or involved in domestic violence services. In response to the paper, the government received 75 written submissions, 510 responses to the survey targeting community members and 119 responses to the survey targeting people working in the domestic violence sector. Feedback from the sector was also obtained by way of a facilitated two-day workshop for key representatives from the state's domestic violence system.

The large volume of feedback received affirms the importance to the entire community of tackling domestic violence, and we thank those who contributed for their considered, robust and informative contribution to this vital conversation. It has informed the government's next steps in response to many issues in the area, to be canvassed in a response document to be released in due course.

The progress of the current bill has certainly remained a priority for the government, but careful consideration needed to be given to issues raised in the context of this bill, namely, the issue of expiry dates on intervention orders. The government is mindful of giving due consideration to this complex issue, in light of the views of the community, to ensure we get this right. This community consultation occurred via the discussion paper. The government's subsequent response to the amendment will be dealt with later in the committee stage.

The timing of the progress of the bill through the chamber is irrelevant with respect to the expected commencement date of the National Domestic Violence Order Scheme. As the chamber has previously been advised, the scheme cannot commence until the underpinning interim information sharing system, for the sharing of data about domestic violence orders between courts and police, is ready. A common commencement date is being discussed amongst jurisdictions and is expected to be towards the end of this year.

The bill and the model provisions on which it is based, reflects a shared commitment throughout Australia to tackling domestic violence, a commitment which extends past governments and members of parliament to, we believe, all members of the community. I would also like to thank the sector for its ongoing commitment to supporting those impacted by domestic violence and its work with the government in tackling this scourge on our community.

The Hon. A.L. McLACHLAN: I thought I would take this opportunity, at clause 1, to set out the opposition's position as we proceed during the committee stage. The government has filed some amendments to the bill which are technical in nature, which the opposition supports. We are advised that these amendments correct an issue that was identified with the bill which would have had an unintended consequence. The amendments will ensure that interstate domestic violence orders continue to be recognised and enforced in South Australia, and, as a consequence, we will be supporting them.

I will turn my comments to the amendments standing in my name. Members may recall that the opposition moved similar amendments in respect of the Statutes Amendment (Attorney-General's Portfolio) Bill last year. Our reasoning provided at the time is equally applicable to the amendments currently tabled; however, for the benefit of honourable members, I will briefly restate our rationale for moving them. In moving these amendments, the opposition seeks to implement a recommendation contained in the Courts Administration Authority Annual Report 2014-15. The relevant recommendation, which can be found at page 20, states:

Section 11 of the Act provides that an intervention order is ongoing and continues in force until it is revoked. Accordingly, Section 11 does not allow an issuing authority to fix a date for expiration of an intervention order.

Given the high volumes of confirmed intervention orders since commencement of the Act, and that only a very small percentage (approximately 1.6 per cent) of orders are revoked, over time this is likely to result in a substantial number of intervention orders continuing in force which may no longer be necessary, potentially criminalising otherwise lawful behaviour.

The Child Sex Offenders Registration Act 2006 specifies that a control order under that Act remains in force for a period of five years or such lesser period as specified in the order. Given that those orders are for protection, by analogy it might be appropriate to have a parallel clause in the legislation governing protection in the area of domestic violence.

Accordingly, it would be desirable that there be an amendment to the Intervention Orders (Prevention of Abuse) Act 2009 to allow for intervention orders to lapse after an appropriate period of time.

The views of the opposition are consistent with the recommendation made in the Courts Administration Authority's annual report. The opposition amendment seeks to adopt this recommendation providing that intervention orders remain in force for a fixed term of five years or such lesser period as may be fixed by the court.

The amendment further provides that an interim intervention order remains in force until it is confirmed by the court or until it is revoked. The period of five years has been nominated to reflect control orders made under the Child Sex Offenders Registration Act 2006, as recommended by the Courts Administration Authority.

The opposition contends that although ongoing orders were aimed at achieving continued protection for victims, without these amendments it is likely that, over time, the number of intervention orders will continue to accumulate in the system, whilst many of the orders may no longer be needed or wanted by the individuals. The amendments seek to ensure that orders that remain in force reflect the needs of affected parties, while also ensuring that administration of the system does not become unworkable or impossible.

The opposition notes that the issue has been raised as a topic for discussion in the government's Domestic Violence Discussion Paper. However, the opposition takes the view that, for the purposes of consistency and since it has previously put forward this amendment, it will again test the chamber. The opposition is mindful that honourable members have, in recent memory, rejected this amendment for a variety of reasons. I would ask honourable members, as we come to the amendment, if they could indicate their support so that we can perhaps avoid a division.

The Hon. T.A. FRANKS: Given that this bill has now been in this place for over seven months, can the minister advise which other states and territories have passed the corresponding pieces of legislation and which have not?

The Hon. P. MALINAUSKAS: I have been advised that all other jurisdictions have passed it except WA.

The Hon. T.A. FRANKS: In response to the minister's advice at clause 1, I have two questions. He stated that the time frame for commencement of this as a federal scheme is yet to be determined. Will it go ahead even if a state or territory, such as WA, has not passed the legislation, and will that have any bearing on the scheme? It would not be unusual for WA not to have corresponding legislation, given the way they work. Will it be possible to commence this across the country without that state?

The Hon. P. MALINAUSKAS: My advice is that all parties concerned would much prefer a uniform commencement date nationwide, but if that is not able to be achieved due to one jurisdiction—for example, Western Australia—holding out, the act can commence without a jurisdiction being part of the picture.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 3, lines 16 and 17 [clause 4(2)]—Delete subclause (2)

The purpose of this amendment and amendment No. 2 [Police-1] is to correct an issue that has been recently identified with the bill. At present, a foreign intervention order includes domestic violence orders and non-domestic violence orders from interstate and New Zealand. Once a foreign intervention order is registered under section 30 of the act it can be enforced in South Australia as if it were an intervention order.

Under the national recognition of domestic violence orders scheme set out in part 3A of the bill, interstate domestic violence orders will be automatically recognised and enforceable in all jurisdictions. Any New Zealand domestic violence order will be a recognised order and part of the national scheme but only if it has been registered under section 30 of the act.

The issue that this amendment addresses relates to interstate orders which are of a non-domestic violence type, including personal protection orders and restraining orders. In amending the definition of a foreign intervention order in the bill so that it no longer refers to interstate orders we have inadvertently removed the ability for non-domestic violence orders from interstate to be registered under section 30 of the act.

Unfortunately, this only became apparent recently following conversations with agencies about the implementation of the scheme and while the registration of personal protection orders or restraining orders occurs only rarely the government wants to make sure that these orders can continue to be registered. To address this issue two amendments have been made to this bill. The first amendment deletes clause 4(2) of the bill so that the current definition of a foreign intervention order will remain unchanged and will continue to refer to both interstate orders and New Zealand orders. The second amendment will insert a new definition of foreign intervention order into section 29A for the purposes of a new part 3A.

The effect of this amendment will be that only New Zealand domestic violence orders will be brought within the national scheme and considered to be a foreign intervention order for the purposes of part 3A. This will be achieved by declaring by regulation that all other foreign intervention orders—that is, those other interstate and New Zealand orders that do not relate to domestic violence that have been registered under current section 30 of the act—will not be foreign intervention orders for the purposes of part 3A, which is concerned only with domestic violence orders.

While the required effect is achieved in a way that might appear to be complex, this is due to the nature of the model law provisions and the way they interact with our legislation. Other foreign orders that do not deal with domestic violence will continue to be enforceable if they are registered under section 30 in accordance with that section.

The Hon. T.A. FRANKS: I rise to indicate that the Greens will be supporting both the government amendments and opposing the opposition amendments.

Amendment carried; clause as amended passed.

New clause 4A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 3, after line 17—Insert:

4A—Substitution of section 11

Section 11—delete the section and substitute:

11—Duration of intervention orders

(1) A final intervention order remains in force—

(a) for a period of 5 years or such lesser period as may be fixed by the Court—

(i) that confirms the interim intervention order as a final intervention order under section 23; or

(ii) that issues the final intervention order under section 23 in substitution for an interim intervention order,

(as the case may be); or

(b) until it is revoked in accordance with this Act,

whichever occurs first.

(2) An interim intervention order remains in force—

(a) until confirmed by the Court under section 23; or

(b) until it is revoked in accordance with this Act,

whichever occurs first.

(3) Subject to subsection (4), this section applies to an intervention order—

(a) that was issued before or after the commencement of subsection (1); or

(b) that was continued in force under clause 37 of Schedule 1; or

(c) that was issued pursuant to the Bail Act 1985, the Criminal Law (Sentencing) Act 1988, the Youth Court Act 1993 or any other Act.

(4) An intervention order issued more than 5 years before the commencement of this section will, by force of this subsection, be taken to be revoked on the day falling on the 6 month anniversary of the commencement of this section (but nothing in this subsection prevents a person from applying for another intervention order in relation to the same defendant).

I set out the reasons for this amendment at clause 1 to give members an opportunity to reflect on the opposition's reasoning, which has been rearticulated from a previous debate. I would appreciate it if members of the crossbench could indicate to me if they will be supporting this amendment. I understand the government has a submission on the amendment.

The Hon. P. MALINAUSKAS: The government opposes this amendment. The proposed amendment will delete section 11 of the Intervention Orders (Prevention of Abuse) Act 2009 and replace it with a new section 11—Duration of intervention orders. The effect of the amendment is to impose a fixed term on all final intervention orders so that an intervention order only remains in force for a period of five years or such lesser period as may be fixed by the court.

Subsection (2) further provides that an interim intervention order remains in force until it is confirmed by the court under section 23 or until it is revoked. Under the current legislation, an intervention order is ongoing and continues in force until it is revoked. The onus is placed on the defendant to establish, in an application to revoke the order, that their victim is no longer at risk of abuse, rather than requiring a victim to come back to the court to show that they still require protection. This policy position was adopted by the government and welcomed by industry groups on the basis that it is difficult for a court to predict, when making an order restraining a defendant from being violent, what may happen when the defendant is no longer subject to that restraint.

The amendment reflects a fundamental change in the policy intention of the legislation. The current amendment mirrors the amendment, filed by the Hon. Andrew McLachlan early last year, to the government's Statutes Amendment (Attorney-General's Portfolio) Bill 2016. At that time, the government opposed the amendment to allow the government to conduct wider consultation on this complex issue to hear from all parties who would be affected by such reform. I note that other members of the chamber agreed with the need to consult all affected parties on the matter.

The issue of expiry dates on intervention orders was one of the key topics presented for consultation on the government's Domestic Violence Discussion Paper released in July last year. As stated earlier, consultation ran for six weeks through a number of channels, and a significant amount of feedback received was considered robust and informative. The government certainly acknowledges the reasons behind the opposition's position of adopting expiry dates. The issues surrounding ongoing intervention orders were canvassed in the discussion paper and acknowledged in the feedback. Such concerns include the indefinite nature of intervention orders potentially resulting in otherwise lawful behaviour being criminalised.

However, the government also acknowledges the strong community concern around the need to ensure that a victim's safety is not compromised by any reform in this area. The government has decided to oppose the current amendment to the bill, based on the consultation under the discussion paper and the reasons presented in the submissions. The government's position on this issue in response to the consultation will be contained in its response to the discussion paper—a document which will set out the government's next steps in response to all the topics raised in the discussion paper. The response will be released in due course.

The Hon. D.G.E. HOOD: Despite Family First's opposition to this amendment when it was originally discussed in November last year, we are somewhat attracted to it. I think there is a lot of sense in having time limits to these sorts of orders because they can become, as the Hon. Mr McLachlan outlined, somewhat administratively cumbersome. However, on balance, given that the government is currently consulting on this very issue and is yet to reach a final position (I think the timing is unfortunate), I think the prudent position for us would be to maintain our position, which is to oppose the amendment in its current form, whilst being open to the general thrust of the argument. For now, that is our position, but should this issue raise its head again and the consultation be complete, it is entirely probable that we would support it.

The Hon. J.A. DARLEY: I indicate that I will not be supporting the amendment at this stage.

New clause negatived.

Clauses 5 to 9 passed.

Clause 10.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 5, after line 34 [clause 10, inserted section 29A]—Insert:

foreign intervention order does not include an order (whether registered or not under Part 4) that is declared by regulation not to be a foreign intervention order for the purposes of this Part;

I have articulated the reasons in favour of this amendment already, Mr Chairman.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.