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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-03-07 Daily Xml
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Bills

Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (11:59): I move:

That this bill be now read a second time.

Following its passage through the Legislative Council, we now consider in this place the Intervention Orders (Prevention of Abuse) (Section 31 Offences) Amendment Bill 2024. We know that intervention orders are a really important part of the ecosystem of action on domestic violence across the four domains of prevention, early intervention, response, and recovery and healing. We know that intervention orders are absolutely vital in helping to prevent a recurrence of domestic violence and that crucially they help those experiencing the horror of domestic violence to feel and to be safer.

I am really proud of our work in the lead-up to 2009 to introduce the Intervention Orders (Prevention of Abuse) Act itself, and of our work from opposition to significantly strengthen penalties for those who breach intervention orders. I am also proud of our extensive and enduring work to help prevent and to tackle domestic violence and its underlying cause, gender inequality.

Since coming to government, we have progressed legislation to include the experience of domestic violence as a ground for discrimination in the Equal Opportunity Act, for the first time giving those who experience discrimination as a result of their experience of domestic violence, whether that be at work or in seeking housing, an avenue to make a complaint about that discrimination and an avenue for recourse via the equal opportunity commissioner.

We have also legislated to ensure that those who are employed pursuant to the state industrial relations system, the state Fair Work Act, can now access 15 days' paid domestic violence leave. Amongst many other initiatives, we have funded southern and northern metropolitan domestic violence prevention and recovery hubs and restored funding to the Domestic Violence Court Assistance Service and to Catherine House, to name just a few aspects of our program of extensive reform. And this week, we have announced the Royal Commission into Domestic, Family and Sexual Violence, its terms of reference and that it will be led by eminent South Australian and tireless advocate for change at a state, national and, indeed, global level, Natasha Stott Despoja AO.

This bill amends the Intervention Orders (Prevention of Abuse) Act 2009 to address a historical charging error in relation to offences under section 31 of that act. Section 31 contains offences for breaches of intervention orders under the act. Section 31(1) is considered a less serious offence of contravening a term of an intervention order which requires participation by the defendant in an intervention program. This offence carries a maximum penalty of a $2,000 fine or imprisonment for two years, with an expiation fee of $315. Section 31(2) is considered a more serious offence of contravening any other term of an intervention order. This offence carries a maximum penalty of three years' imprisonment for a basic offence and five years for an aggravated offence.

In September last year, the Attorney-General was informed that it had been identified that defendants had been charged with and found guilty of a less serious section 31(1) offence, where they should instead have been charged with and found guilty of an offence of breaching section 31(2) of the act. I am advised that this incorrect charging came about as a result of an error in a form used by SAPOL prosecutors to lay charges. I am also advised that nearly all of these prosecutions were resolved by way of a guilty plea and that the defendant was sentenced by the court on the basis of their admitted uncontested or proven conduct as if the prosecution were indeed for the more serious section 31(2) offence.

It is important to note that this error has not exposed any person to a greater penalty than they would have been liable for had they been found guilty of the offence of breaching section 31(2) of the act. Nonetheless, review proceedings may be available to those persons. The advice to government is that this issue arose after the commencement of the act in 2011 and continued until an error in South Australia Police's charging system was finally remedied in May 2019.

In practice, this was an error in SAPOL's charging system, which produces the required documents to lay a complaint or information before a court. The advice is that a full audit of all matters has identified 771 files, with 700 individual defendants to whom this error applies. This bill represents the government's legislative response to this historical charging error. It provides a pathway for fresh prosecutions to be brought and for the safety of the community, particularly survivors of domestic violence, to be rightfully maintained.

This bill would enact a scheme to apply to any review proceedings initiated by defendants that may be permitted by the court to be commenced out of time. Specifically, the bill will establish a process whereby fresh prosecutions for a section 31(2) offence could be brought out of time and be heard and determined in the same review court that is dealing with any appeal or review by a defendant for section 31(2) proceedings.

If these section 31(2) proceedings are contested, the review court has a discretion to remit the matter to a court of summary jurisdiction for trial, to deal with in the ordinary way. It provides that any agreed or undisputed facts received in the original sentencing proceedings for the offence against section 31(1) are, unless excluded in the court's discretion, admissible as evidence of the conduct in fact engaged in on the occasion alleged, for the purposes of the section 31(2) proceedings.

It provides for the offsetting of the previously imposed penalty, including costs and a levy imposed under the Victims of Crime Act 2001, against any sentence imposed in the fresh section 31(2) proceedings, including removing any liability to repay to the defendant any fine or compensation paid by the defendant. It amends section 31(2ab) of the Intervention Orders (Prevention of Abuse) Act to permit a person's section 31(1) conviction to be taken into account for the purposes of a second or subsequent contravention offence in subsection 31(2aa) of that act.

The bill also provides that no liability attaches to the Crown for false imprisonment or any other act or omission relating to proceedings involving these incorrect charges. As stated earlier, this error has not exposed any person to a greater penalty than they would have been liable for, had they been charged and found guilty of the correct offence.

Advice was, rightly, sought on the time line of events in this matter. The advice is that this error began in December 2011 upon the commencement of the act. In June 2017, the issue was identified and a warning was put in place in the SAPOL system to prevent the error from recurring. However, I am advised that a change in SAPOL database systems in 2018 led to this warning being lost and the error recurring. This continued until May 2019, when the issue was finally addressed in SAPOL systems and no further incorrect charges were laid.

I am advised that in November 2019 former Attorney-General the Hon. Vickie Chapman and former Minister for Police the Hon. Corey Wingard were briefed on this issue. The current Attorney-General was advised of this issue in September 2023. In the months that followed, the Attorney-General received a significant and comprehensive body of advice from the Solicitor-General, the Crown Solicitor and the Attorney-General's Department on how this issue could best be addressed. Those efforts have led to the government now introducing this bill. It is worth noting that the former government did not take legislative action to address this issue. It is unclear to the government why ministers in the former Liberal government did not appear to have taken action.

This bill is overdue. Its passage is absolutely critical in maintaining community confidence in the justice system and protecting the courageous survivors of domestic and family violence. It is utterly regrettable that mistakes over the previous decade have necessitated this bill, but the government believes that it is incumbent on this government and this parliament to address these historical errors. I commend the bill to the house and seek leave to have the explanation of clauses inserted 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 Intervention Orders (Prevention of Abuse) Act 2009

3—Amendment of section 31—Contravention of intervention order

These amendments allow a deemed subsection (1) offence (which is defined) to be taken into account in determining whether a contravention of an intervention order is a second or subsequent contravention for the purposes of section 31(2aa).

4—Insertion of section 31A

This amendment inserts new section 31A:

31A—Special provisions applying to review or appeal in relation to certain offences against section 31

If applicable review proceedings are instituted in a court (whether before or after the commencement of the provision) in relation to a person's conviction or sentence for an offence charged against section 31(1) of the Act, provision is made for—

those review proceedings to be heard by the Supreme Court constituted by a single Judge; and

the person to be prosecuted (in the same proceedings) for an offence against section 31(2) (defined as section 31(2) proceedings) in respect of the conduct to which the conviction for the offence charged against section 31(1) relates.

Provision is also made in relation to the time within which the section 31(2) proceedings may be commenced, the admissibility of certain evidence in such proceedings, considerations relating to sentencing a person for an offence against section 31(2) and other relevant matters.

Certain other matters are provided for, including a provision relating to liability of the Crown in relation to acts and omissions in respect of offences charged against section 31(1).

Mr TEAGUE (Heysen) (12:12): I rise to indicate the opposition's support for the bill and that I am the lead speaker in this place. I will make some contribution in terms of the change that is to be effected by this bill and the context in which it arises. The minister has walked through what is now a fairly lengthy historical context of a systematic error that was applied, as the minister has indicated and as I am advised also, as a result of part of the process that SAPOL uses to generate information—a drop-down list, I think—and that it somehow had been the practice during that period from 2011 for many years and had been spotted and rectified, and then somehow managed to slip itself back into use.

The result of that was the two alternative offences for contravention of an intervention order that are available: one is the general contravention and the other is the section 31(1) contravention, being the contravention of a term that requires attendance at a course. So section 31(1) deals specifically with the terms of an intervention order that are the subject of section 13 of the primary act, which deals with the intervention programs. Section 13 provides:

An intervention order may require the defendant to undergo an assessment by the intervention program manager to determine…a form of intervention program—

and the defendant would then be required to participate in that program. That is quite thoroughly particularised at section 13. The section 31(1) offence is supposed to be concerned with the contravention of a term that is specifically connected to any of those aspects under section 13.

Broadly, it might be described as participation in an intervention program, but it might include any of the range of things, as I understand it, that are set out in section 13, including enabling the assessment of suitability for a program, the establishment of the appropriate program, and so on and so forth. Suffice to say that it is a particular form of contravention, and, for perhaps obvious reasons, the maximum penalty is somewhat lower than the maximum penalty that attaches to the general contravention provision in section 31(2).

A section 31(1) contravention attracts a maximum term of imprisonment of two years and, to illustrate its more discrete nature, there is also a money penalty that is available to the court, as well as an expiation fee. So it is clearly contemplated, on the face of the legislation, that section 31(1) is capable of being dealt with not only summarily but, in appropriate cases, by expiation; whereas the section 31(2) offence is about establishing the offence of contravention of any of the other terms of the intervention order, which, put plainly, include the substantive and direct protection terms that will be contained in the intervention order.

The contravention of any of those attracts, in the case of a basic offence, a maximum penalty of imprisonment for three years, which is marginally more than the maximum penalty available under section 31(1), and, in respect of an aggravated offence under that provision, imprisonment for up to five years.

So it is clear that the legislative intent sets a level of seriousness at a higher level in terms of the contravention of any of those terms of an intervention order, other than those discrete contraventions that might occur by reference to the section 13 intervention program requirements. That is the context of the section 31 contravention of intervention order provisions. We have heard about what has occurred in practice.

I indicate, as I think I have been able to do more or less universally in this space, my appreciation for the provision of a timely and thoroughgoing briefing from the Attorney-General's office and department. In these sorts of circumstances, that is of particular helpfulness. These are matters that are best determined with the benefit of advice and best determined upon the consideration by government with the benefit of those resources. The minister has referred to, I think, a further round of consideration that occurred, including advice, I think the minister has referred to, provided to the Attorney-General sometime last year in 2023.

It is clearly a matter that has occurred in not one but two episodes. It is something that has been managed and considered on a number of occasions, particularly over the last few years. While I do not have access to the advice that was provided to government last year—and I make no complaint about that; that is ordinarily appropriate—I understand that the advice is that it is appropriate to move now in this way. Hence, we see the bill that has been introduced to amend the act to deal with the possibility that there are individuals who might be affected, looking to deal with the matter and otherwise to regularise the circumstances of those matters in which there has been prosecution and sentencing erroneously under section 31(1) where section 31(2) ought to have been properly the context.

As we understand it, these are circumstances in which the evidence of, in relevant cases, the section 31(2) offending has formed the grounds upon which the offending has been proved and the offender has been sentenced, and as a consequence in the cases in which that error has occurred it has been the result that the offender cannot have been sentenced to any penalty that is greater than what ought to have been available. In the case of a basic offence, there is a year less in terms of the maximum term of imprisonment.

I might just flag a curiosity about whether or not it is known if there is any example of an aggravated case that might have been a different source of identification of the offence by reason of the fact that it was aggravated, because there is no such aggravated offence in section 31(1). I am not, as I stand here, aware of any. The disparity between the two available penalties would be more significant in that case—two years out to five years.

If it is known, then to the extent that there is any victim who is aggrieved by the practice, it may be an opportunity to put at rest, at least to that extent, any concern about an offender going underpunished and particularly in those circumstances where it is the aggravated offence under section 31(2) that ought to have been the basis for sentencing. In both of those cases it is true to say that the offender is no worse off as a result of any erroneous reference to section 31(1) as a basis for penalty as opposed to where it ought to have been.

I note, as has been the necessary case in the course of this parliament so often, the bill was introduced in another place and has then come to the House of Assembly, having been passed by the Legislative Council, and so the debate has already occurred, and we have the benefit of that occurring just in recent days. So I am not the first to draw attention to the disquiet, I would perhaps characterise it, although others might describe it in other ways: the caution that has been expressed by the Law Society by its letter to the Attorney that is dated 4 March this year, just a few days ago, by which the Law Society notes the mechanical purpose or the regularising purpose of the bill but cautions about any practice of legislating to regularise in this way, if that is a benign way of putting it, in such a way that might give rise to a deprivation of rights.

Having flagged an interest in the question of whether the full available penalty was not actually availed, and particularly in section 31(2) aggravated circumstances, I just note, on the other side of the coin, the Law Society's concern about legislation adopting a method that might, not necessarily in these circumstance but in others, deprive rights by applying general provisions. I reference the debate in the other place because the letter from the Law Society has already come to particular attention in the course of that debate.

I might just pause to quote from a part of it, under the heading 'Utility of legislation and deprivation of rights' and from numbered paragraph 5:

5. The Society queries the utility of the mechanisms set out in proposed section 31A. It is difficult to ascertain why the imposition of a review process is necessary at all to correct any implications arising from the historical charging error, or to envisage a situation where an offender would seek to review such a sentence.

6. Despite references to appeal proceedings being available to offenders who have been incorrectly charged, it would appear the Bill may provide the prosecution with the ability to also apply under the new scheme.

7. There may have been people convicted of the lesser offence but sentenced on the actual facts of the matter (which would have been a breach by something other than not attending a program as is required by section 31(1)) and the penalty actually applied was that of the more serious offence. In such circumstances it is difficult to see how and why such a person (or the prosecution) would appeal, or even why there would be an appeal other than to correct the section name of the offence as the offence on the face of it would have been properly dealt with.

8. Noting this, the Society queries whether the charging error is appropriately addressed by the simple inclusion of a 'deeming' provision.

I pause there just to indicate that those are questions I think I have had the opportunity to ask and have answered in the course of a briefing. The reason I describe the Law Society's concern in these circumstances as rising as high as a caution is that there is not, as I read it, a specific detriment that is adverted to in the society's letter but rather, I guess, a concern about a generalised process that will be deeming a set of circumstances that were not actually applied at the time and highlighting, I suppose, that for practical purposes it is unlikely that anyone other than the prosecution would be wanting to avail itself of the changes.

I do not understand that there is any contemplated example of the Crown wanting to avail itself of these provisions but rather to ensure that, where sentencing has occurred on a 31(1) basis, it is not, for those technical reasons alone, set aside.

So the Law Society has expressed a view, and it is important that there is an opportunity not only for the Courts Administration Authority, in this case dealing with the practical consequences of the case load before the courts, but the courts themselves and the Crown Solicitor to express a view and to provide advice, respectively.

It is good that there is an opportunity for the Law Society to express a view ahead of legislation of this nature being debated. I do not know the reason why the Law Society's letter has come as recently as it has. I just say that, as a matter of general observation, the more opportunity there is ahead of the introduction of legislation of this kind for there to be that particular stakeholder engagement, and to that I would add the South Australian Bar Association, the better.

It is not only a matter of courtesy but it is for the reason that there is almost invariably, I cannot think of any example, in fact, I would say invariably, a considered and thorough-going source of review and consideration that comes from both the society and the Bar Association. It is valuable feedback in these circumstances and really ought to be taken on board in a timely way and wherever that is really practicable. I do not suggest that has or has not occurred in any particular way for the purposes of this bill, but I do just highlight that. The letter from the Law Society is on the public record and might be referred to in the context of future analogous legislation.

I might not have made it completely explicit—I have already just sort of selectively referred to part of the Law Society's response—but it is fair to say that the Law Society is also concerned about circumstances in which there is an indemnification of the Crown in a blanket kind of way. I take that on board and have some empathy with that view. It ought to be something that is looked at very closely. The Law Society refers to it, in this regard, as follows:

Notwithstanding the assurances as to people not being subjected to a greater penalty than they otherwise would have, the Society queries the justification for the exclusion from liability. This aspect of the legislation is to be questioned; a widespread and systemic problem that attracts specific legislation should not simultaneously deprive a member of the community from a civil remedy that they might otherwise be entitled to. This is especially true in the event that a systemic problem resulted in the deprivation of their liberty.

That is specifically in the context of the proposed section 31A(5). All of that is noted.

I think it is the sincere expectation that the result of the bill is that there is no consequential action. I do not know what consequential action might arise. As I say, I am interested in that particular part of the history that I have highlighted, but I am approaching this bill in circumstances where I am not anticipating—and it is my understanding that the government is not anticipating—that there will be consequential action that results from it, rather it will regularise what has occurred in error in the past.

Turning to the broader context in which this legislation is applied, reference has been made by the minister, in the course of the debate, to the steps that have been taken and a government announcement, also during the course of this week, in terms of the royal commission into the prevention of domestic and family violence. I take the opportunity to welcome the appointment of Natasha Stott Despoja to lead the royal commission. It is an important task and, as has been said in a whole variety of different forums over now several months, it is a matter that has been called for across opposition and crossbench parties, alongside the peak body and leading advocates in this area, now since November of last year.

The government's choice of royal commissioner is, in my view, an inspired one. The work that the royal commission has ahead of it is important work indeed. There is an indication that has been given this week, not only the appointment of the royal commissioner but also an indication of the range of topics that might constitute terms of reference for the royal commission. I trust that that is something that is refined and determined finally in conjunction with those stakeholders, and chief among them Embolden.

It is a matter of some ongoing concern that the government at first took some several weeks, following calls in November last year for the establishment of the royal commission, to come around to agree that the royal commission would be established and funded. I am glad it did. That was in December. That it has taken until now, March of this year, before those key elements have been determined, is somewhat disappointing. I say that in circumstances where, having come around to the view that a royal commission would be funded, the government was very clear in December last year that it intended to fund and drive a commission process that would be started and completed with urgency, with dispatch, with a view to making sure that it could identify recommendations that could be applied towards improved outcomes and without delay.

So the fact that it has taken until now, until March, for these key building blocks to be announced, is somewhat disappointing. The fact that we learn this week that the royal commission will not start until July this year, again, will be a source of disappointment for those who made those urgent calls back in November. We understand, then, that the commissioner is charged with the responsibility to complete the work of the commission and to report by July in 2025. We will—

The Hon. K.A. Hildyard: Do you want to talk about your record on DV: cutting Catherine House funding, cutting the court assistance service—really?

The ACTING SPEAKER (Mr Brown): Order!

Mr TEAGUE: So we will now look to put our shoulder to the wheel to do what we can to support the work of the royal commission, particularly when it is up and running later in the year. I have already been in contact with the royal commissioner with my congratulations and expressing my interest to be engaged in that process as much as may be helpful. I have known the commissioner all my life—almost—and hold the commissioner in the highest regard.

I am sure that, as someone who is very widely respected throughout South Australia and around the country, indeed, throughout the world in the range of her extraordinary achievements, she is very well placed to lead the way in terms of where to from here. But that is the work of the year ahead, commencing, as we understand it, in July.

Some words of context about the royal commission that will, we hope, drive improved outcomes over the medium term: in terms of the important work of the headline act and the availability of intervention orders in circumstances of prevention of abuse, I cannot highlight anymore than to stay with those important matters that are to be addressed by the royal commission in any way more effectively the importance of the proper functioning of this legislation.

The availability of process to apply intervention orders in circumstances of abuse is one of the key measures that needs to function in the interests of the safety of those particularly in circumstances of domestic abuse. We bear in mind that the act goes considerably more broadly than that awful context as well. It also serves the important work of providing for intervention orders associated with problem gambling, with tenancy and also with non-domestic abuse and in other circumstances.

So the act has important and wideranging work to do. The need to correct this matter of historical process in terms of the application of orders and their contravention in terms of section 31 is a matter that, as I have indicated, has been the source of advice to government, including last year, and in those circumstances the opposition is pleased to support those changes.

We will look forward to an ongoing review of the operation of the act to ensure that it is doing all the work that it can possibly and appropriately do to protect the focus on those victims of domestic abuse and also those others. We will welcome opportunities to continue to revisit the bill as and when that may be necessary. So in all of those circumstances, I commend the bill to the house and I think I have flagged that particular area of interest in terms of the committee process.

The Hon. D.G. PISONI (Unley) (12:50): I take this opportunity to make a contribution on this bill. It may come across as being quite a technical bill but it does reflect where we are, how far we have come and how much further we need to go to protect women in particular from violence, and domestic violence in particular. I have the ABS statistics of homicide-related offences in South Australia; that is, figures available in 2022. There were 29 victims of homicide-related offences of which more than half—15—were women, and we know that the likely perpetrators of those women would be men who are known to them.

It is a cancer, if you like, that runs right across our community. It starts with coercive control and people who are obsessed with their relationships, and those relationships break down. Usually, the person who has chosen to leave the relationship becomes a victim of domestic violence, and it happens right across the social demographic table.

It does not matter whether you are of a poor background, a background of multigenerational welfare or whether you are successful in your career—we know that there have been some horrific stories of domestic violence when women and children have lost their lives at the hands of men, so intervention orders and AVOs need to be taken seriously. I was pleased to read the briefing here that the situation this bill is amending has not caused anyone to have a higher penalty or a lower penalty than what is required in order to administer the act, and for it to act as a protection and a deterrent. So it does not matter what area you come from, and I was just reflecting on some of the cases that would relate to those in this chamber.

Everybody would remember the former member for Dobell, Craig Thomson, who I believe was from the Health Services Union. He was charged with fraud on union members. After his time in parliament, he also pleaded guilty to a series of violence-related charges against his ex-partner and breaching an AVO. So you can see that even people who excel in their careers and are in a position to give back to the community can be perpetrators in this awful area of domestic violence.

I am very pleased to be part of a government that finally took on the task of removing the gay panic defence—the last state, as I understand it, to have the gay panic defence, not just by a few months or a few years but by more than a decade. I believe we were the last state to still have a gay panic defence. It is clear to understand why that happened. We had Michael Atkinson as the Attorney-General and then John Rau as the Attorney-General, and I am so pleased that the state's first female Attorney-General tackled that.

Vickie Chapman tackled it in such a way as to ensure that the defence that was removed protected women who had to resort to violence to get out of a situation they were in that they could not get out of in any other way. One of the excuses given time and again as to why for some reason South Australia could not remove the gay panic defence was that it would discriminate against women who were trying to remove themselves from a violent situation. Vickie Chapman as Attorney-General was able to deal with that.

Something else that was a very good outcome, a very good piece of legislation from Vickie Chapman as Attorney-General, is that women now have an ability to check the violent record of somebody they may have decided to move into a more permanent or committed relationship with before they make that decision, which is a terrific preventative measure. It is much harder to leave a relationship the more you share in that relationship; whether it be shared finances, home or children, it is more difficult for women to leave that relationship, because they have so much more to lose.

We know time and again that, when a woman is forced to leave a relationship because of domestic violence, they also end up having a lower standard of living in almost every case. In most instances, when men remain they remain in the family home when women leave; they usually are in control of the finances and, although the courts see the finances as being a joint asset, we know that getting that out of the disgruntled partner can be very difficult and very expensive for the person who is the primary caregiver.

Another disadvantage women have in getting out of these situations is that they are then in a situation where they themselves do not have a source of income for themselves and their children. How often do we hear that men whose wives have left them, for whatever reason, particularly for domestic violence reasons, then do not support the children that they both committed to bring into the world and to look after?

There is still a lot more we need to do. I emphasise—and I say this every time I speak on this—that it takes men to stop men behaving in such a manner. We see women at rallies and memorial services on domestic violence, but we need to see more men at those services because it is men who will make the difference. Women are the victims and of course they support each other, but men are the perpetrators and it is so important that we get that message across and for men to say stop and intervene when they see it. It is a community issue, so men need to call it out and intervene whenever they can.

Debate adjourned on motion of Mr Hughes.

Sitting suspended from 13:00 to 14:00.

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