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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Bills

Statutes Amendment (Domestic Violence) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 November 2018.)

Mr BROWN (Playford) (16:54): I rise to speak in support of the Statutes Amendment (Domestic Violence) Bill 2018. This is an important bill that makes changes in a number of areas to ensure that the perpetrators of domestic violence are appropriately punished, that intervention orders are effective and that court processes are efficient and fair.

The statistics of domestic violence against women—and it is overwhelmingly women who are the victims of domestic violence—in this nation are shocking. On average, one woman a week is murdered by her current or former partner. One in five women has experienced sexual violence since the age of 15. One in four women has experienced emotional abuse by a current or former partner since the age of 15. We also know that domestic violence is the primary cause of homelessness for women and children.

We know that both victims and perpetrators of domestic violence come from all parts of our society, and they live in all parts of our state. It is thus a collective problem that we must all deal with to do all we can to combat domestic violence in all its various guises. The previous Labor government had a proud history of initiating measures to combat domestic violence. These included the reformation of intervention orders in 2009 with the Intervention Orders (Prevention of Abuse) Act and, following the death of Zahra Abrahimzadeh, the release of Taking a Stand: Responding to Domestic Violence paper and the Domestic Violence Discussion Paper 2016.

The discussion paper identified a number of legislative and non-legislative responses to domestic violence. The Attorney-General is to be commended, in my opinion, for continuing some of these measures, including the Domestic Violence Disclosure Scheme. I look forward to seeing how the scheme will operate practically, whether it is effectively utilised and resourced and how it can be further improved in the coming months and years.

Turning to the current bill, there is an amendment to the Criminal Law Consolidation Act to introduce a new offence of choking, suffocation or strangulation. This is an important change that recognises that such behaviour is dangerous and also completely abhorred by our community. The bill amends the same act to broaden the concept of an aggravated offence to include the relationships defined in the Intervention Orders (Prevention of Abuse) Act to ensure consistency.

An amendment to the Bail Act creates a presumption against bail in certain circumstances where intervention orders are involved. These changes are necessary to ensure that our intervention order system adequately provides ongoing safety to domestic violence victims. The Intervention Orders (Prevention of Abuse) Act is also being amended in this bill that builds on expansions to the act in 2015.

The bill proposes to expand the list of examples of emotional or psychological harm to include forcing a person to marry another person, preventing a person from entering their place of residence or the taking of an invasive image. This change recognises that society now sees these circumstances as methods of control by one person over another that can cause long-lasting harm.

We know that one of the difficulties with our established court processes is that they are often very traumatic upon victims. The standard of proof we necessarily require means that victims are often subject to rigorous assessment. This can deter many victims from reporting domestic violence. The bill addresses this concern by allowing audio or audiovisual recordings of interviews and other evidence to be admitted without the need for the victim to be further examined or cross-examined in court, where the court is satisfied that it is appropriate to do so. In doing so, victims are spared the unnecessary trauma of being examined in front of a room full of people, which can be a terrifying ordeal.

Another change to the Intervention Orders (Prevention of Abuse) Act is to provide the Youth Court with the ability to recognise a domestic violence order made in other jurisdictions. This is a common-sense change that removes an unnecessary hurdle. The bill also proposes to increase the penalties for those who breach intervention orders. These penalties are important to deter domestic violence offenders from repeatedly harassing or hurting those who have taken an intervention order out against them.

Such actions undermine the system of intervention orders, and we as a parliament need to send a message that such behaviour will not be tolerated. As such, the bill proposes for a pecuniary penalty of $10,000, which increases to $20,000 or four years in prison for subsequent offences or for offences that involve physical violence or threats of physical violence. These penalties will hopefully have more of an impact than the current fine of $1,250 or two years in prison.

I will always support laws that will make a measurable difference to reducing the incidence of domestic violence in South Australia. However, it takes more than just legislation to deal with this problem. I urge the government to adequately resource not only our police but also the courts and support agencies to deal with this issue. It is important that, as far as practical, a bipartisan approach is taken to achieve positive results. On this side of the house, we are happy to give our support on the bill, but we will be watching how it is implemented and how enforcement is supported. I commend the bill to the house.

Dr HARVEY: Mr Acting Speaker, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:00): I would like to thank all members who have made a contribution in respect of this important piece of legislation that will assist in providing support to the fight against domestic violence. I am more than happy to move straight into committee. As I understand from a contribution made by at least one member, there were some questions that needed clarification, and I am happy to move forward without further delay.

Bill read a second time.

Committee Stage

In committee.

The ACTING CHAIR (Mr Duluk): Attorney, I believe there are 15 clauses. Member for Reynell, is there debate on any clauses in particular?

Ms HILDYARD: If I could take your advice, Mr Acting Chair. I have a few questions about consultation broadly, so I guess it may be best for us to do that at the beginning.

The ACTING CHAIR (Mr Duluk): We can do that at clause 1, and we can take those questions, member for Reynell.

Clause 1.

Ms HILDYARD: Thank you for your advice. First of all, broadly in relation to consultation, why was the decision made to consult for just the period of four weeks?

The Hon. V.A. CHAPMAN: Firstly, if I may place on the record the genesis of a number of ideas that are being incorporated in this bill. In particular, there was a need to ensure that we looked at existing arrangements, and identify what was not working, and at the submissions we had received. In the past three years (2015, 2016 and 2017), there had been considerable work done, not only by agencies in the former government, such as issues papers, reviews and consultations.

Disappointingly, there was an abandonment of any advance of legislative reform. That is not to say that an enormous number of stakeholders and government agencies had not been consulted; in fact, they had put up a number of very good ideas. Just preceding that time, a very comprehensive piece of work was done in Victoria. I think it is fair to say that other jurisdictions would claim they had also been struggling with a number of areas of reform—not to the extent that they would not want to have reform, but they wanted to consult with people to advance these areas.

I think that considerable time has been spent in relation to a number of these initiatives. In respect of the strengthening of current initiatives, this is in a different category. This is in the category of victims, victims' agencies and domestic violence support services, who have been begging for some reform in these areas. We not only made a commitment in opposition for domestic violence to be a priority of a new government but we also felt that it was important to advance it as quickly as possible in light of an umbrella of three years of pretty intense consultation.

It is fair to say, though, that any law reform, especially if it is completely new—and I think in South Australia that the new offence in relation to strangulation, for example, is new—needs a bit more careful consideration. I am not aware that we have had any concerns raised by what I would call 'the usual suspects' in relation to stakeholders that this was such a novel or controversial thing that they were seeking extra consultation time.

If that had been the case, for example, if the Law Society had come to us and said, 'This is a pretty new and novel approach in relation to a new offence. We need some extra time to consider this,' then that would have been a matter we would have taken into account but, to my knowledge, that was not the case. We felt that we and the previous government had consulted on this for a long time, and the public, particularly women and victims, are begging for this reform, so that is why it is here.

Ms HILDYARD: Attorney, how was it communicated with both the public broadly and also stakeholders that this new consultation period was open?

The Hon. V.A. CHAPMAN: I am advised that there were three areas. Firstly, I wrote to a lot of people, I remember that bit, to the extent of informing them about proposals in this regard. Secondly, I am advised that the department had contacted a number of people who had registered an interest in these issues over the preceding three years, and the member would be aware of this consultation period—the issues paper preparation and the consultation on reforms that came out of the recommendations, etc.

The third area was on the YourSAy website to enable people to make a contribution. I think the member was informed at the briefing that contributions had been made. In fact, I made public statements to the effect that in respect of some of the reforms now before us there had been some modifications as a result of presentations made.

Ms HILDYARD: This is an issue that came up at the briefing. Given the nature of particular aspects of this bill—for instance, the introduction of the new choking, strangulation, suffocation offence—was feedback sought from particular groups, for example, SAPOL? But, more broadly, rather than just the broad consultation, was feedback sought particularly from groups that would have a particular interest in certain aspects of the bill?

The Hon. V.A. CHAPMAN: I am advised that the two, if I can say, professional persons at the coalface who were consulted in respect of the construction of the offence were the DPP and Judge Hribal, the Chief Magistrate of the Magistrates Court. I have to say in relation to this new initiative that it has received an incredibly positive response, and I think there are two reasons for that; one is that we now know that hands are often the most used weapons in cases where there is a fatality. We want to be able to make sure that if there is a series of conduct in relation to attempts then we need to act on it; and, secondly, the literature is now telling us that this is a very strong sign of other and continuing domestic violence in those relationships. I think that is quite compelling.

I certainly gave great weight to Judge Hribal's contribution in this regard. Obviously, from the DPP's point of view, if there was anything that would alert us to there being some means by which the implementation and effectiveness of a charge of this nature was flawed, then we would have acted on it because the last thing we want to do is introduce laws that cannot work.

The ACTING CHAIR (Mr Duluk): Member for Reynell, how many of these broad questions do you have?

Ms HILDYARD: I have one that is very specific arising from that answer, and then two broad ones, and then that is it.

The ACTING CHAIR (Mr Duluk): The status quo is about three per clause, but I am at the discretion of the Attorney.

Ms HILDYARD: Yes; and then I will move into very specific questions.

The ACTING CHAIR (Mr Duluk): I will allow you one more arising out of this, and then we might move on to the next clause.

Ms HILDYARD: Can I just ask a quick supplementary?

The ACTING CHAIR (Mr Duluk): You can ask a very quick supplementary.

Ms HILDYARD: Thank you. I appreciate the answer that you have given, but was SAPOL specifically consulted in relation to this bill?

The Hon. V.A. CHAPMAN: Yes, and I confirm that they were given a copy of the bill.

The ACTING CHAIR (Mr Duluk): I am going to move clause 1, and we can ask a question on clause 2 given that we have had three.

Clause passed.

Clause 2.

Ms HILDYARD: What were the main concerns that stakeholders and members of the public raised about any aspect of the bill, and how were those particular concerns addressed in the drafting of the bill?

The Hon. V.A. CHAPMAN: I am reminded that we do not detail individual responses as to contributions that are made. I said this before in relation to other bills, that there are some bodies and associations in the stakeholder group that are quite happy to provide that information. The Law Society, for example, regularly puts its submissions online, and they are accessible. We thank them for doing that because they are highly educative and useful in any constructive debate.

Individually, we certainly would not breach the confidence of someone who has put a submission to us, especially if they were to detail personal circumstances. I can recount one matter that I have made a public statement on, and that was that there was a strong submission put to us to consider a reduction in the number of breaches that were to occur before there was an increased consequence in this legislation.

I thought that was compelling. These are matters that are put to cabinet ultimately and they have been accepted, obviously, because the bill is before us. Individually, we do not, but I think it is important that, where public submissions are available, the opposition has a look at those because they are often quite useful in the debates.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

Ms HILDYARD: This is the amendment of section 5AA, aggravated offences. Does the deletion of paragraph (g) include the deletion of subparagraphs (i), (ii), (iii) and (iv) under the top paragraph in that section or will they remain? The reason I ask that question is that my interest is in ensuring that children are still included in that section because paragraph (g) goes to that issue about children.

The Hon. V.A. CHAPMAN: I am advised that, yes, under the new paragraph (g) the words 'the offender was, or was formerly, in a relationship' have now replaced the reference to children. But as you will see under proposed subsection (4a) in the next paragraph, 'in a relationship' covers all the people who were previously in there. 'In a relationship' is then explained explicitly for the purposes of the application.

Clause passed.

Clause 6.

Ms HILDYARD: I am now moving to the insertion of part 3 division 7AA. Attorney, how did you arrive at the maximum imprisonment of seven years for choking, suffocation or strangulation in a domestic setting?

The Hon. V.A. CHAPMAN: I think that there are three things that are important to the consideration of the seven years. As I am advised, firstly, it was important that we have a penalty that was over five years so that it would be in the major indictable offence category. This is not some summary offence; we want this to be clearly a serious offence. Secondly, this new offence does not require evidence of harm having been caused. In other words, the victim could have no mark left on them. There could be no injury. You do not have to prove any of that; they just have to have committed the act.

Thirdly, I am also advised about the comparison with other similar offences. Obviously, in criminal law, that is a matter of standard practice. My recollection is that there was some discussion, whether or not that was in my final advice in the draft that was received. Because this was being considered in other jurisdictions, it was a similar amount. I may be wrong, but I will quickly check with my adviser whether there was a similar penalty in New South Wales.

Ms HILDYARD: That was going to be one of my next questions, so that would be great.

The Hon. V.A. CHAPMAN: It was Queensland—I beg your pardon—not New South Wales.

Ms HILDYARD: Attorney, can you please elaborate on the views of those who took part in the consultation generally in relation to the new seven-year penalty?

The Hon. V.A. CHAPMAN: A seven-year penalty received broad support during the consultation. I cannot recall anyone who put a submission in here saying that this was too lenient or too strong either way. I am advised that there was broad support.

Ms HILDYARD: This is the last question on this clause. You have partly answered it in terms of the modelling on Queensland. Can you advise what the penalties are in other jurisdictions, or is it not in any other jurisdiction?

The Hon. V.A. CHAPMAN: There has been general discussion about this in the academic and legal world. To my knowledge, it has not been implemented in any other jurisdiction that we are aware of, except Queensland.

Mr ODENWALDER: Proposed section 20A(2) is obviously about lawful excuse. Can you tell me what is contemplated by 'justified or excused by law' in that context and why the use of the words 'justified or excused'?

The Hon. V.A. CHAPMAN: My very wise adviser indicates that an example she can think of is in relation to a sporting event where there may be contact in that regard. The issue of 'justified or excused' is a sort of legal expression, if I can put it in that term. It is not new and novel to this legislation. I cannot tell you at the moment what other legislation it is in.

There can be a circumstance where someone is choked. Let me give you a classic one: someone has swallowed a button and actually is choking and they apply pressure to the neck area, together with any other pressure on the chest, to try to have it removed, maybe holding somebody still because it is necessary to save their life. There can be circumstances, but they are the only ones I can immediately think of off the top of my head.

Mr ODENWALDER: Thank you for the answer. Just to clarify, I understand the impetus behind the section. I am just wondering about the two words, and if you say that is a common legal usage that I am not aware of then that is great.

Clause passed.

Clause 7.

Ms HILDYARD: Attorney, can you please broadly outline when this type of recording would be admissible and when it would not be admissible?

The Hon. V.A. CHAPMAN: Firstly in relation to when it is to occur—quite simply, when all of the requirements under proposed section 13BB(2) are met. The sort of circumstance where it would not be is if the complainant, namely, the victim in this scenario, were severely intoxicated and unable to give evidence, you would not be able to rely on the other. That is the type of situation. The primary evidence of a person in the witness box able to be cross-examined is the best evidence—that is acknowledged—but we have lots of special rules where we allow evidence in in an alternative manner, and the most commonly known, of course, is where we have vulnerable witnesses: children and people with a cognitive impairment.

Courts will still look for the primary evidence, and we are allowing the films to be used, provided (a) to (d) are complied with, but that does not mean that you can use them in a circumstance where there is no other viable evidence.

Ms HILDYARD: Attorney, what is the view of the legal profession and judiciary in relation to this particular change in the bill, and how was that change received during consultation?

The Hon. V.A. CHAPMAN: I am not sure that I know the entire legal profession. The Law Society made a statement. I will quickly see if I can find it, but, again, this is on the public record in a letter dated 31 August 2018. As usual, it is comprehensive. It is seven pages long. Taking this as the representative body, I think that if I were to give you any sentence to try to summarise their position—although I would invite you to read it—it would be paragraph 15, which states:

The Society welcomes any measure to make court processes easier for victims of domestic violence. However, the Society has noted in previous submissions its concerns with respect to the admission of this type of evidence.

It then refers to their enclosed submission, which is the paper that was out there in 2016, where they made a similar comment. On page 4, they state:

Notwithstanding, the Society considers that having some flexibility in the Evidence Act to allow video evidence for those victims who wish to proceed with charges, but are unable to give evidence any other way may be appropriate in some circumstances.

If I attempt to paraphrase their petition, it would be to tread with caution, but that understandably we are moving in this direction. Of course, I invite the member to have a look at that herself.

Ms HILDYARD: Attorney, how has the government addressed concerns raised about any potential this change could have to dissuade victims from involving police, especially if there is a fear that it may place a victim of domestic violence in a more difficult situation later? What supports are in place for women in that particular circumstance?

The Hon. V.A. CHAPMAN: I can honestly say that I have not had any indication that that would be an impediment. I am more than happy to receive it if the member has, as a representative of the opposition, had some concern raised about that aspect, which I think is moving to this idea that there might be some hesitancy in actually progressing along this line because of the new structure. I can honestly say that, to my knowledge, we have not had any such indication, but if the member has then we are happy to have a look at it.

We have a significant number of services that are available to support women in a domestic violence circumstance. Sometimes, they are seeking specific advice. Yarrow Place, which the member would be aware of, is a significant provider of services for those who have been sexually assaulted or raped. There used to be a limitation on some services for children who had been raped, that is, young adolescent girls. Obviously, little children are often in child protection at the Women's and Children's Hospital and that unit will look after them. There are services, depending on whatever the circumstance is.

Certainly, what we are trying to do is to make sure that, in every possible way, women have a chance of protecting themselves, and this legislative reform is one aspect of it. Together with that, we obviously need to have services to provide for immediate security, safe accommodation, access to money to provide for themselves and/or children if appropriate, medical attention, counselling and legal advice. These are all the types of services that invariably are called upon to some degree or other in these circumstances. Obviously, we are dealing with the legislation here as to the legal parameters to support that through protection, but they do not cover the services for obvious reasons.

The ACTING CHAIR (Mr Duluk): How many more questions do you have on this clause, member for Reynell?

Ms HILDYARD: Two.

The ACTING CHAIR (Mr Duluk): I will give you one.

Ms HILDYARD: Thank you for that answer. Following on from that, will any additional or different supports be provided to women who are involved in proceedings where evidence is taken and permitted at the time of a particular incident, or taken at the time of an incident and then permitted? Are there any other different or additional supports that will now be available?

The Hon. V.A. CHAPMAN: Women will continue to get the support in the areas that I have outlined. I think it has been made very clear, because comment has been made on this in the past, that there are a number of agencies that continue to have budgetary provision this year for their services because we recognise the significance of those for that purpose. Police have a role in relation to the support they give, usually at the time of arrest or charge, and there are victim support services in that agency.

Obviously, we have a new Commissioner of Victims' Rights, Ms Bronwyn Killmier. This is an area of particular interest to her and I have discussed these issues with her. The DPP has a witness program as well that includes the complainant or victim. There are a number of agencies through the prosecution and court process that we are intending to maintain, but I am not aware of any specific program that relates just to a new offence.

As I said to you earlier, the offences in relation to choking and strangulation do not require harm, so there is no requirement for proof of any injury. That does not mean that it will not be presented through photographs and the like but, because we do not have to prove harm for this offence, it does not need to be as forensic as one would otherwise expect.

Mr ODENWALDER: I just want to make sure that I understand exactly what is captured by this provision. Subclause (2) states that the evidence of a complainant may be admitted in the form of a recording by a police officer. I just want to clarify whether that is limited to a statement or an interview that is captured by the video or the recording, or if it also includes extraneous evidence, what other things the camera captures that are not necessarily related directly to the complainant. I am thinking of things like children in distress, property damage and that sort of thing, and whether that constitutes evidence under this clause.

The Hon. V.A. CHAPMAN: For a minute there I thought you were going to say, 'Can we produce this evidence if there is some crime happening behind them?', such as if someone is robbing the place next door. That does raise an interesting question, but that relates obviously to surveillance.

The situation is that the evidence is there essentially to support the evidence of the domestic violence. It is the complainant's evidence that is really being replaced, in that sense, but it has to comply with a number of things. There is a capacity for the judge to receive other information on the video recording, but that is a discretionary matter. Obviously, there would usually be argument from counsel, representing the defence usually, to object to it if they thought that it was prejudicial to their client.

Mr ODENWALDER: To clarify, I did mean evidence that was directly related to the domestic violence.

The Hon. V.A. CHAPMAN: Sure.

Mr ODENWALDER: Subclause (9)(a) talks about how the regulations may prescribe additional requirements. What additional requirements do you contemplate could be possible under this subclause?

The Hon. V.A. CHAPMAN: I am sure there will be great advice about what this is, but let me think of one, and that is the clarity of the video recording itself. I have read of two cases in recent times where judges have been critical of the standard of reproduction. At least one judge said that they could not clearly identify because the actual recording was so poor. In fact, they were very critical of that at the time. Apparently, there was no excuse for it, in the sense that it was not raining or the police officer was falling over. It was just poorly recorded.

Another was the recording of a child who was making a statement, but the recording was not picking up the actual facial movements of the child. If I recall correctly, the recording was of the back of the head of the child, which is not much help when it is trying to support the evidence in that case. Superior courts have made it quite clear that if you want to present evidence in this form it has to be clear and obviously productive in the sense of being adequate.

There are a lot of other rules that are set up for things like interviews, and I am sure the member would be aware of this. You have to have a clock in the room in view to check that somebody has not been interrogated for 15 hours, it has to be continuous—all those sorts of things. It is the same situation here: there are rules and regulations to prescribe how that is to operate and what standard is required.

The ACTING CHAIR (Mr Duluk): One last question on clause 7 and then I am going to put the clause.

Mr ODENWALDER: Would one of those prescriptions be that the victim or the subject of the interview must be in view, or can it be an audio recording?

The Hon. V.A. CHAPMAN: At the end of clause 7, a 'recording' means an audio record or an audiovisual record.

Clause passed.

Progress reported; committee to sit again.


At 17:38 the house adjourned until Thursday 8 November 2018 at 11:00.

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