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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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INTERVENTION ORDERS (PREVENTION OF ABUSE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2009. Page 3951.)

Ms CHAPMAN (Bragg) (17:23): I indicate that the opposition will be supporting this bill. We have tabled some amendments, and I think the Attorney was provided with a copy just a few moments ago. For the purposes of this debate, I will be the lead speaker on behalf of the opposition and I indicate that, in the circumstances, having just given notice to the government of the foreshadowed amendments, it would be perfectly reasonable to assume that he will need to have some time to consider them and if there needs to be an adjournment of the final consideration of this bill the opposition will work with the government in facilitating that.

This bill was introduced by the Attorney-General on 10 September 2009, I think it is fair to say, after a gestation period of a couple of years. It is a bill to provide interventional and associated problem gambling and tenancy orders in cases of both domestic and non-domestic abuse. It repeals the Domestic Violence Act 1994 and parts of the Summary Procedure Act 1921 and some consequential amendments to other acts. It is fair to say that some of the features of both the Domestic Violence Act and the Summary Procedure Act—in particular, the personal restraining orders—have been retained and have placed us in the last decade or so under the protection—potentially victims thereof—of the more limited relationship that they have covered.

In November 2006, the government committed to a review of all rape and sexual assault and domestic violence laws. As I recall, Liesl Chapman (who I think was then a member of the Crown Law Office) was appointed by the government to review rape and other sexual assault legislation. That ultimately culminated in bills that came before this house, which have been passed, for improvements in circumstances of prosecuting perpetrators of offences. That has been welcomed, and one would hope that that is now effective in the community not only as a deterrent but also to ensure that there is better access to the criminal courts and more successful prosecutions ultimately with the protection of those who are victims of assault.

Maurine Pyke QC was then commissioned to prepare and release a discussion paper, which she did in February 2007, which was to consider the options for reform in respect of the management of domestic violence. During the course of that, consideration was to be given to a number of issues, to which I will refer in a moment. Similarly, Victoria conducted a review resulting in the Family Violence Protection Act in 2008. So, alongside of each other these states have undertaken significant reviews. Other states in proceeding years have amended their legislation and that then formed quite a significant and I think rich resource of relatively new legislation around the country for Ms Pyke to review and to assist in the discussion by considering legislation that had been produced in other jurisdictions.

The discussion paper outlined a number of aspects for review, some of which were the usual aspects and some of which were quite new and had been considered in different ways by the other jurisdictions. The discussion paper included, I think, 11 main features. One was to identify and come up with a clear set of objects and principles that need to be considered when courts were going to be asked to deal with this big issue. The second was to look at whether the definition of 'domestic violence' and the grounds for making restraining orders should be extended beyond what was historically the usual physical, emotional and psychological abuse.

The third was to look at to whom this law was to apply, that is, the nature of the relationships outside of the domestic common relationships of husband and wife or cohabiting partners in personal relationships and to look at more extended family relationships and incorporating a broader aspect of that, as to other intimate or even carer relationships.

The fourth was to look at, I think for the first time in a comprehensive way, the experiences of children as both victims and perpetrators. Much has been written about their involvement in domestic violence over the years, but this review took a very serious look at how they should be involved both as victims and perpetrators.

The fifth point was to look at other options as to how we might deal with perpetrators, in particular, the removal of the perpetrator from the family home. This is something that has had a long history of debate. No. 6 was to consider the powers of the police to investigate and to intervene. The police have played a very important role over a long time in domestic violence legislation as the people responsible to impose, protect and clean up a number of the messes. Consideration was to be given as to whether they should have a much greater and particular involvement in the intervention order powers.

No. 7 relates to consideration of some of the procedural difficulties with the process of complaint in summons and whether we could look at more simplified procedures. No. 8 was to consider the issue of the offence of aiding and abetting, and whether this offence should apply to a person where that person is subject to the order. No. 9 was to look at issues relating to the penalties for offenders, that is, escalating ranges of penalties and exacerbating and mitigating factors as to penalty and the like. It would be unusual for any review not to look at that aspect.

No. 10 was to discuss the interface of the family violence orders made in the state courts and then, on the other hand, the parenting and other orders made by courts exercising jurisdiction under the Family Law Act. That has been a tension over the years which has brought some challenges. I think there has been a genuine attempt at mutual respect of the jurisdictions but to try to have mechanisms to ensure that, even if there is overlap, there is a capacity for that to work efficiently and effectively for the protection of victims, and particularly children.

No. 11, of course, was to consider how any reform would then be followed by community education programs. I extend and place on the record my appreciation for the work undertaken by Ms Pyke. I have had the opportunity to work in legal practice with her. She is highly regarded in her field, and I think that the government chose wisely in seeking her to undertake this review. Certainly her report is comprehensive. In a nutshell, this legislation does two things which are somewhat different ultimately from this review. The first is that it very much extends the definition of what is abuse and what is to be deemed abuse for the purposes of attracting the protections to which I will refer later.

Certainly it reflects that, in addition to physical injury and emotional and psychological harm, there is now significant reference to damage to property and unreasonable and non-consensual denial of financial, social and personal autonomy. A second aspect of this expansion of 'protection' is to apply to a much more extended area of relationships between not just spouses and partners but grandparents, siblings and, as I referred to in the review, the carer-and-person-cared-for relationship. Recommendations to expand that have been taken up.

It is a major expansion as to what type of conduct this law will apply to, and a second aspect of that is who it will apply to. The second major area of reform which forms the basis of this legislation is a new regime for intervention orders. Particularly as this legislation proposes to cover a much greater field for a much greater ambit of conduct and behaviour, I think it is important that we get this right. What the government has proposed is that we will have intervention orders, which we already have to the extent of protecting.

They are able to be granted by courts to restrain a person from doing something or requiring something to be done for the protection of a person where there has been an act or a threat of an act of abuse. This legislation will go further, either to make a direction for certain behaviour to cease or to direct certain conduct or a mandatory action to be undertaken. The extension is that it will be for the protection of a person having been suspected of or defending and/or committing an act of abuse on any child; that is, to prohibit contact with a person by texting, telephoning or emailing, as well as prohibitions on proximity and exclusion from the family home, etc. It also includes the surrender of weapons or articles.

Again, the intervention orders now are to deal with a much greater number of forms of intimidatory behaviour, if I can put it in a general sense, because modern technology means other than just physically threatening someone. We already know that it has been done over the telephone and other forms of communication. Texting now is something that we hear a lot about in respect of schoolyard bullying. Not surprisingly, the generation Z children are the majority of victims of this at the moment. Clearly, this legislation anticipates, as it should, that this is a form of communication that can be offensive and threatening and needs to be protected against, and therefore it has been extended.

The grounds to issue these intervention orders are now extended to be anticipatory—that is, there does not need to be any prior act of abuse or in fact a threat in that regard. If the circumstances are sufficient, then an order can be made to protect another party even if there has not been some prior act of abuse commissioned. The new initiative by the government in this bill—

The Hon. M.J. Atkinson: Aren't all initiatives new?

Ms CHAPMAN: No. It proposes that both the police and the court have the capacity to issue interim intervention orders. Currently, the processes under the Domestic Violence Act and Summary Procedures Act provide only for a court to determine this.

The proposal is that police who have the rank of sergeant or above (although in some circumstances an investigating officer of a much lower rank can apply but with the written or telephone authorisation of the more senior officer) can come into this process and can grant an interim intervention order. In fact, the bill provides that they will even have power to hold the defendant in some form of custody for up to two hours (or even longer with the court's permission) to enable them to actually make the order—presumably to ring the superior officer and get approval to make the order.

I am assuming, from what I have read in the second reading explanation, that that will enable them to hold the defendant in a police car or hold them in the garden or somewhere without formally arresting them, because they have not committed any offence—remember, these are anticipatory—giving them the ability to say, 'You have to wait here until I go and ring my superior officer' and proceed with that.

The police, under this bill, will also have additional powers to hold and detain the defendants to prevent further abuse and protect the other party. In this case, it can be up to six hours or longer with a court order where they are holding somebody where there is a suspected breach. They can, of course, arrest and detain them first in custody without a warrant of suspected breach of an order for up to 24 hours, not including a weekend or public holiday, and they can be held for up to three days over a long weekend.

Anyone needing protection following an act of domestic or personal abuse may apply including a child over 14 years or the police or relatives, so it is quite an extensive group. Information from the public sector agencies may be required to be released as to the whereabouts of the defendant. There is clearly an opening up of access to information, an opportunity to seek protection before something serious happens and the power to determine whether at least an interim order is made is now to be extended to senior police personnel.

There are certain processes past that where, when a matter comes to court, the court can ultimately confirm an interim order. The court can issue an interim order, an intervention order or substitute it, or the court can dismiss the application and revoke the interim order. There are certain requirements in respect of service and there is also an initiative to deal with something which had been previously potentially a problem in some cases where all orders are to continue until revoked—that is where a fixed term order arrangement is not provided for.

There are measures to help victims of abuse to either leave the home sooner or stay in their home. That is the power to prohibit a perpetrator from being at or near the home if they own or rent it, and the court or police may also order the defendant to return specific personal property to a protected person. The Youth Court will be the forum to hear applications made by children and if children breach an intervention order—which one would hope would be a rare occasion—then that would also be heard by the Youth Court.

There are also obligations for other relevant public sector agencies such as Families and Communities, Education and Housing SA to be notified and I think, quite sensibly, there is also a continuation of prohibition of publication of court proceedings. There are a number of occasions, particularly when children are involved, whether it is in criminal cases or family law cases, where there are very strict rules in respect of publication. In fact, it is prohibited except in certain circumstances, and for a good reason, which I am sure is well known to the house.

Concerning the consultation that the opposition has undertaken in respect of these reforms, a number of what we think are important, interested parties had not been consulted since the publication of the bill but may well have been invited to make a contribution during the development and to comment on the discussion and options for reform that were published back in February 2007. However, we had made some inquiry as to the development of the reform in Victoria culminating in its legislation.

That, I think, was important particularly for the foreshadowed amendments that we have indicated that we will progress as to the use of police for interim intervention orders, because we will be proposing a different system.

The government provided us with a briefing on this bill and we appreciate those who gave of their time in doing that. It is fair to say that, in considering Ms Pyke's review, the government has picked up many of her recommendations in this bill, and they will have the opposition's support. But something she did not recommend is the proposal that the police have power to issue interim orders. I think that is important because it raises the question of the novelty of the government's approach on this. If we felt it was meritorious, then it would have our support notwithstanding its novelty.

It is interesting to note that the Victorian Law Reform Commission (I think it was the commission but it may have been a committee) undertook a review of its legislation and considered whether the police should have the power to make short-term intervention orders rather than having to apply to a Magistrates Court for after hours orders. On balance, that commission believed that it was more appropriate for the Magistrates Court to make the interim orders outside business hours rather than the police. It commented that it may need to be reconsidered if the Magistrates Court did not implement an efficient system for making intervention orders after hours, but it still made the decision that it was a matter for the jurisdiction of the court, not the police.

I said earlier that the police, probably from time immemorial, have had significant involvement over a number of decades in managing difficult situations where domestic violence has arisen. They are the frontline people who are called out to deal with many of these cases, and they are difficult. It is not as though they do not have intimate knowledge of what happens in these situations, but the opposition shares the view of the Victorian Law Reform Commission that those roles of adjudicator as well as enforcer of an order should be separated and that it should remain with the courts.

The review by Ms Pyke recommended consideration of the Western Australian model, which provides the power to police officers to make orders for a very short period (usually 24 hours). This is in the nature of providing a cooling off period and it is a different approach. It is one where the police would not be making an interim order which could last days or, in fact, a week. It is one where the police would have the power to remove the offender from a situation where others are at risk of abuse. For a short period of time, they would have the power to direct that they stay away from the protected person.

In Western Australia they are obligated to make accommodation or some kind of sleeping quarters available to the person that they have removed. I understand there is a men's respite house in Western Australia—and possibly a women's respite house, although I am not sure—to facilitate that. Ms Pyke recommended that as an option to be considered favourably. In line with that, the opposition proposes amendments to this bill to remove the interim intervention orders available to police officers but to insert a model which enables members of the police force to act in a manner which has been called a time out order, which is the description which has been foreshadowed.

There is significant data to support the reason why this legislation needed to be reviewed, updated and expanded; the opposition accepts that. We have had some submissions from people who have been concerned about excessive public statement on women as victims. It is true that, during the course of these debates, other victims including children and men have been overlooked in the statistics. I remember hearing recently that eight women were killed in domestic violence situations in the past eight months or so but, over the same time, I think two children and four men died in domestic violence situations.

We need to be conscious of the fact that there are many victims in these situations and different genders and age groups need to be protected. Without detailing a number of other statistics in this regard, we accept the review wholeheartedly and we welcome the government's initiative in bringing forward this legislation. One thing was raised during the course of the government briefing which I was a little concerned about.

We had heard that the government was going to put in $868,000 into an anti-violence education and advertising campaign, which I have started to hear on the radio; I think it was the Don't Cross the Line campaign. Meritorious as that may be, one thing that really concerns me is that the implementation and expected commencement date of this legislation, even if we pass it straight away, will be some 12 months away. The reason given for that is that, if we utilise police services particularly to become involved as the arbiters and issuers of these interim orders, they will need to have special training and so on—and I would not doubt that; of course they would.

If the government considers our amendments and removes them from the responsibility that is proposed to be put on them in that regard, this would not be necessary and we would be able to bring in this legislation pretty much straight away. We are already lagging behind the other states, so it is important that our reforms are not only passed in this house but actually implemented. We would not want another year delay in the protection, well intentioned and worthy as much of it is, for the 12 months that was foreshadowed. I would ask the Attorney to reconsider that aspect.

I indicate that a number of groups have contacted the opposition which have been concerned about the plight of victims in family situations. We have not yet heard from all of the stakeholders. I think the carers association is one which we do need to hear from, so there may be other amendments that we will need to consider in another place, but otherwise I indicate that the government's bill will be supported, with the amendments foreshadowed.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:57): I am most grateful for the member for Bragg's thorough analysis of the bill and for the parliamentary Liberal Party's bipartisan support.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Progress reported; committee to sit again.


[Sitting extended beyond 18:00 on motion of Hon. M.J. Atkinson]


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