Criminal Law Consolidation (Section 20A) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 August 2024.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (16:20): I rise to indicate the opposition's support of the Criminal Law Consolidation (Section 20A) Amendment Bill 2024, a significant step forward in strengthening our legal framework to combat domestic violence, specifically addressing the heinous acts of choking, suffocation and strangulation in intimate settings.

On 29 August 2024, the Attorney-General, the Hon. Kyam Maher, introduced this bill into the Legislative Council. This legislation seeks to amend the Criminal Law Consolidation Act 1935 to bring more clarity and robustness to our current laws on choking, suffocation or strangulation within relationships. This is not merely a matter of legal terminology, it is about addressing a pervasive and dangerous form of violence that tragically affects too many people in our community.

Domestic violence is a blight on our society. It transcends age, gender, socio-economic status and race. For too long, the act of choking, suffocating or strangling has been insufficiently addressed by our legal system. Victims are often left vulnerable, and perpetrators escape with lesser consequences due to the complexities and limitations of existing laws. The bill before us aims to close those gaps. It introduces a two-tier offence system for choking and strangulation, allowing greater flexibility for prosecutors whilst also ensuring harsher penalties for those who commit the most severe forms of this abuse.

Clause 1(1) of the bill introduces a new offence where a person chokes, suffocates or strangles another person rendering them unconscious without their consent. This new offence carries a maximum penalty of 10 years' imprisonment, reflecting the gravity of the act and the significant harm inflicted on victims.

Additionally, clause 1(2) of the bill substitutes the existing offence under section 20A(1), maintaining a maximum penalty of seven years but, crucially, this clause removes the need to prove serious harm. This change acknowledges that the very act of choking or strangling, even without serious physical injury, is an inherently violent and traumatic act that must be met with strong legal consequences.

The bill goes further by clarifying the definitions of choking, strangling and suffocation. Clause 1(3) provides much-needed clarity, defining choking and strangulation as the application of pressure to the neck to the extent that it affects the flow of blood or breath. Suffocation is simply clarified to include obstructing or interfering with a person's system. These definitions ensure that there is no ambiguity in interpreting these offences, and that our courts can prosecute perpetrators effectively.

The Law Society of South Australia has raised concerns in their submission, arguing that these revisions might overcomplicate the offence and could lead to further prosecutorial challenges. Whilst we respect these views, we must balance them against the urgent need to address the prevalence of strangulation and choking as tactics of control in domestic violence situations. It is important to note that these behaviours are often precursors to more severe acts of violence and, as such, they demand a serious response from our justice system.

The bill takes a measured approach, providing the necessary flexibility for juries and judges whilst maintaining safeguards to ensure just outcomes. The introduction of clause 1(5), which allows juries to return a guilty verdict for a lesser offence if the higher charge cannot be proven, ensures that offenders do not escape accountability. This provision will help reduce acquittals in cases where the evidence might not meet the stringent requirements for the more severe offences.

We must always remember that this bill is not just about the laws and penalties but about protecting the most vulnerable amongst us. Choking and strangulation are often used as methods of control and intimidation in abusive relationships. Victims live in fear knowing that their abusers hold the power to end their lives with a single act. This bill sends a clear message to those perpetrators: your actions will not go unpunished.

We must also remember that this is not just a matter of punishment: it is about intervention. This bill gives law enforcement and the courts the tools to intervene before it is too late. We know that those who commit acts of strangulation are far more likely to go on to commit even more serious and often deadly violence. Introducing more onerous penalties and clearer definitions empowers our justice system to act swiftly and decisively.

The Law Society has pointed out that some definitions' complexities may result in further evidentiary challenges, however the very nature of domestic violence offences often presents these complexities. This does not mean we shy away from providing the legal structures necessary to hold offenders accountable. Instead, it means we continue to refine and improve our laws so that they work effectively in practice and not just in theory.

This bill is a reflection of the collective wisdom of legal experts, advocates for domestic violence victims and those with firsthand experience of the devastating impacts of this form of abuse. We must ensure that our justice system does not fail those most at risk. While we focus on the legal improvements this bill brings, we cannot ignore the broader societal implications of this legislation.

Domestic violence disproportionately impacts certain communities. Aboriginal people, particularly Aboriginal women, are over-represented as victims of family violence and are also more likely to be remanded for extended periods due to the presumption against bail. This bill acknowledges these impacts and seeks balance, strengthening the law and ensuring equitable justice. It is imperative that we work towards a legal framework that is not only tough on perpetrators but also fair and just for all individuals, including those from marginalised and vulnerable communities.

By supporting the Criminal Law Consolidation (Section 20A) Amendment Bill 2024, we are taking a stand against domestic violence in all of its forms. We are strengthening the law to protect victims, hold perpetrators accountable and send a clear message that choking, strangulation and suffocation will not be tolerated. This bill is not just a legislative change but a statement of our values as a society. We stand with the victims, we stand against violence and we will not rest until every person in our community can live free from fear in their own home.

The Hon. R.A. SIMMS (16:27): I rise to speak in favour of the criminal law consolidation amendment bill. The Greens believe that all people have a right to live free from harassment, fear, violence and abuse. Prevention of and protection from gender-based violence should be a core priority for any society. This bill deals with the issue of strangulation, suffocation and choking. It comes after a review into the effectiveness of the offence of strangulation in the Criminal Law Consolidation Act.

Strangulation, choking or suffocation are often present in domestic violence situations, and it is acknowledged that they can be a precursor to homicide. Current laws rely on case law where it must be proved that there is a restriction on breath. I understand that submissions from the Law Society on this bill note that there have been difficulties prosecuting strangulation offences under the current provisions. This bill takes on current health advice that there is also a danger where blood flow to the brain is restricted.

We know that women experience all forms of family violence, intimate partner violence and sexual violence at a much higher rate than men. While these reforms are beneficial to create an offence for such forms of domestic violence, the Greens want to see increased funding for programs related to the prevention of intimate partner violence. We need to stop these acts before they occur, not just deal with the offences afterwards. It is really important that there is public education around these sorts of behaviours and work done to try to effect cultural change within our communities.

The Greens are supportive of this bill. We do welcome the action that the government is taking in relation to domestic violence, but we also call on the government to go further in terms of really addressing the root causes of this kind of criminality within our behaviour, stamping out in particular misogyny and gendered violence.

The Hon. S.L. GAME (16:29): I rise to very briefly put on the record my support for this bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:29): I thank all honourable members for their indications of support on this bill. As a number of honourable members have said, this continues the efforts that we are making as a government, but also that we are collectively making as a parliament to stamp out the scourge of domestic, family and sexual violence.

This, as with a number of other areas that we have considered, are precursors or red flags to much more serious offences such as domestic homicide. Legislation before the other place in relation to coercive control, legislation that has been introduced in relation to stalking laws—all are things that go towards stamping out behaviour before it leads to something much more serious.

If the result is being able to more easily detect, more easily prosecute and more easily convict people of things like strangulation, stalking or coercive control, it is much more likely that it will not escalate to things that sadly, so often in Australia, end with the death of a girl or a woman. I thank honourable members for their indications of support and commend the bill to the chamber and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.L. GAME: I rise to briefly further add my support to the government's bill to introduce new laws in relation to the offence of strangulation in a domestic setting. The continued rise in domestic violence is cause for concern and the potential for these measures to capture perpetrators before the violence escalates is a worthwhile proposal.

The current offences of choking, suffocation or strangulation in a domestic setting will no longer be limited to restriction of breath. This should capture less serious domestic offences with the intention of preventing the possibility of escalation. The bill also creates a new offence for choking and suffocation in a domestic setting where harm is caused, with harm now being defined as that which renders a person unconscious.

This new offence has a maximum penalty of 10 years, and there is a presumption against bail for those charged with this offence. While there is a potential for false allegations to be made, I am confident the courts are in the best position to determine when this occurs. My paramount concern will always be to do what I can in this chamber to prevent the tragic escalation of domestic violence situations, and that is why I have offered my full support for this bill.

Clause passed.

Remaining clauses (2 and 3), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.