HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-19 Daily Xml
Contents
Pdf Xml

INTERVENTION ORDERS (PREVENTION OF ABUSE) BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 4039.)

The Hon. S.G. WADE (16:05): I rise to speak on the Intervention Orders (Prevention of Abuse) Bill and indicate that the opposition will be supporting it. I think it is important that we are up-front about what domestic violence is not: domestic violence is not lovers' tiffs. Domestic violence is a matter of life and death.

Statistics from the Office for Crime Statistics and Research, within the Attorney-General's Department, show that between July 2001 and June 2008 there were 37 domestic violence related homicides in South Australia, of which 32 involved female victims and five involved male victims. The figure is even higher when the deaths of perpetrators are included. I understand that on that basis, since November 2008 14 South Australians have died as a result of domestic violence—that is, seven women dead, two children dead and five men dead.

The Attorney-General used a quote from a recent discussion paper from the Queensland Domestic Violence Death Action Group to describe domestic violence. I agree that it is a particularly clear definition, and so I propose to read it to the council, as follows:

Domestic Violence is described as the use of violence by one person to control another and is used to describe any abuse that occurs in intimate relationships.

The abuse may take the form of physical, emotional, sexual, spiritual, social and financial abuse. Abusive behaviours may range from intimidation, stand-over tactics and threats to sexual assaults, rape, strangulation and death.

The abuse may continue long after the relationship has ended and it is well recognised that many women have either left the relationship or are in the process of leaving when they are killed. Often the threats made to victims are not idle threats and each year a significant number of adults and children continue to die as a result of domestic/family violence.

I think it is important that we affirm that the term 'domestic' is not limited to marriage and that it includes intimate partners, whether in a de facto relationship or otherwise. Similarly, 'domestic' does not merely refer to violence in the home context. An abusive or violent relationship may be maintained in and out of the home, in a social context and even in the workplace.

This bill has been under development for a number of years. In 2005, the government committed to reviewing the rape, sexual assault and domestic violence laws as part of the initiative entitled 'Our Commitment to Women's Safety in South Australia'. Ms Maurine Pyke QC was commissioned to prepare a discussion paper, which was released in February 2007 and which considered options for reform in the management of domestic violence.

The shadow attorney-general in another place noted that a range of state-based reviews and legislative reforms in other jurisdictions in recent years provided a rich seedbed for Ms Pyke's work. The opposition expresses its appreciation for the work of Ms Pyke and her comprehensive report.

The bill repeals the Domestic Violence Act 1994 and parts of the Summary Procedure Act 1921, which govern personal restraining orders, and makes consequential changes to other acts. The bill retains many of the features of the current Domestic Violence Act 1994 and the personal restraining order provisions of the Summary Procedure Act 1921. The bill brings together and reforms laws restraining domestic violence, and laws restraining other forms of personal violence, and seeks to make these laws more understandable.

While the bill deals with a range of personal violence, it has a strong emphasis on domestic abuse, as the laws will most likely be used by people seeking to protect themselves and their children from domestic violence. The reality of violence is that it is the tool to maintain a power relationship. For example, to say that rape is about sex is like saying that being hit over the head with a shovel is about gardening.

In this context, the bill broadens the definition of abuse to cover not only the obvious forms of violence but also the other aspects of controlling behaviour that are typical in the context of intimate relationships. This form of violence is particularly insidious. The violence may occur behind closed doors. Victims may even cooperate in concealing it. They often feel trapped.

The bill also extends the types of relationships that will be considered to be domestic. They include not only relationships between spouses or partners and children but also those between grandchildren and grandparents, brothers and sisters, within an Aboriginal kinship group and between a carer and the person cared for.

The bill is now so broadly written that the act could authorise inappropriate interference in domestic and other relationships. For example, on my reading, it is technically possible for a child to have an order put on them to financially support a grandparent. That goes well beyond the use of orders in the past. I will not dwell on this point, because the Hon. Dennis Hood very ably highlighted this issue in his second reading contribution.

The opposition has researched this issue and understands that the implementation of similar provisions interstate has not led to inappropriate use of such provisions. Human relationships, on the other hand, are so diverse and complex that any regime to deal with domestic and personal violence needs to be broader than most regimes, so on balance we are inclined to support the bill as it stands. We would indicate that our support will be followed through with maintenance of oversight of the implementation of the regime to make sure that implementation focuses on the real risks.

A key reform of the bill is a new regime for intervention orders. The bill proposes an enhanced intervention order regime. It is proposed that police will have enhanced powers to intervene in situations of domestic or personal abuse, including the power to issue an interim intervention order to direct a person to remain in a place and, if necessary, to detain the person while arrangements are made to protect the victim or to facilitate the preparation and service of orders.

Both the police and the court would have the capacity to issue interim intervention orders against a person if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person and if the issuing of the order is appropriate in the circumstances. Currently, the processes under the Domestic Violence Act and the Summary Procedure Act provide only for a court to undertake this role. The grounds I mentioned are anticipatory. There is no need for proof of the commission of an act of abuse before an intervention order can be issued.

The government's approach in relation to the interim intervention order regime is a novel one. The government has based many of its provisions on the Pike review, and they have the opposition's support, but the interim intervention orders is not something it recommended. It is interesting to note that the Law Reform Commission review of the Victorian legislation 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, the commission came to the view that it was more appropriate for a Magistrates Court to make the interim orders outside business hours rather than the police. It made the decision that it was a matter for the jurisdiction of the court, not the role of the police. Like the Victorian Law Reform Commission, the opposition holds the view that the roles of the adjudicator and enforcers of an order should be separated and that the role of adjudicator more appropriately should remain with the courts.

The review by Ms Pike recommended consideration of the Western Australian model, which provides the power to police to make orders for a very short period, usually 24 hours. This is in the nature of providing a cooling-off period. It is a different approach from the approach of this bill, where the police would be making an interim order which could last a week. In line with this view, the opposition proposed amendments to this bill in the other place which sought to remove the provision for police not just to prosecute but also to determine interim intervention orders and to replace that procedure with a time out procedure.

While we will not be moving those amendments that were defeated in the lower house, we still prefer that approach. Just as we have concerns about and will monitor the implementation of the breadth of these orders, we also have concerns about and will monitor the extent to which police are involved in intervention orders and the length of those orders. We hope that the police focus on protection, not adjudication.

In conclusion, I would like to mention a couple of other aspects of domestic violence prevention and prosecution. I reaffirm my interest in the domestic violence court approach as a therapeutic diversion for perpetrators of domestic violence. In a number of areas of the state it has proven to be a very useful device to help offenders to focus on their offending behaviour, and to avoid or minimise the risk of recidivism.

I also reiterate my interest in the domestic violence death review process. We do have reviews in relation to child deaths. The research and practice around the world is that there may well be value in domestic violence death reviews, and I note that in the past year or two three Australian jurisdictions have either introduced domestic violence death reviews or are considering doing so.

In question time today the minister reminded the council that we will be celebrating White Ribbon Day next Wednesday—'celebrating' in the sense that it is a positive movement of men to stand against violence against women. Of course, another current event is the government's 'Don't cross the line' campaign. I find it an interesting campaign. I ask the minister: what research underlies the campaign and what evaluations are planned?

I think it is extremely important, in public information campaigns, to make sure that we understand where the community is, where we believe the community needs to be, and that we are respectful in that dialogue. In that context, I think research before a campaign and evaluations afterwards, on such a sensitive matter, are very important.

In conclusion, I reiterate that the opposition supports the bill. We join other members of this council to affirm that we will not tolerate the use of violence to control or intimidate another person, particularly in a domestic setting, and we hope that the bill passed today will be another step in providing safety for South Australians in their homes and in their community.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (16:17): I thank honourable members for their support for this bill and will take the opportunity to answer questions put by the Hon. Dennis Hood in the second reading debate. The Hon. Dennis Hood queried whether the breadth of the definition of abuse may lead to unwarranted state intrusion into private family life or to the upholding of spurious claims of abuse.

He cited several examples, including common parental decisions that are often disputed by children, and wondered whether applications for restraint by a disgruntled child in such a situation might be upheld by a court under this legislation. I reassure the council that this bill cannot be used in that way.

For a start, we know that the vast majority of domestic violence restraining orders are sought and made when the victim is genuinely in need of protection. This is true under the current law and under the new laws in Victoria. We also know, from past experience—including the recent reports of domestic violence deaths—that it is better to err on the side of safety than to treat each application for intervention as suspect or potentially trivial and risk the well-being of vulnerable victims.

The bill's definition of abuse, and the examples of the types of abuse, reflects actual past experience. They are designed to illustrate to the public and to enforcing authorities the type of behaviour that victims of domestic violence commonly experience, but they are simply examples. The bill firmly restricts the making of an intervention order to circumstances where the making of the order is both reasonable and appropriate.

There will need to be evidence sufficient to form a reasonable suspicion that the allegation that the defendant may commit an act of abuse is genuine. The circumstances will need to be such that the issuing of an intervention order is appropriate. Importantly, an act of abuse is defined, wherever needed, in terms of reasonableness.

Also, the bill does not describe acts that result in physical injury or emotional or psychological harm in terms of reasonableness, because surely we must assume that injury or harm is unreasonable and abusive, but it does require a non-consensual denial of financial, social or personal autonomy to be unreasonable and therefore to be an act of abuse.

It does this to eliminate altogether the possibility of intervention orders being made in the kinds of circumstances described by the Hon. Dennis Hood where the anticipated behaviour that is sought to be restrained is essentially within the bounds of reasonable parenting behaviour. That is what we seek to avoid. Police are most unlikely to agree to apply for an intervention order on a person's behalf in such cases.

The bill allows the court to dismiss an application for an intervention order at the first possible opportunity at the preliminary hearing if it thinks that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the court. This provision will stop spurious applications by individuals.

The expanded definition of abuse is based on recently passed Victorian legislation. Although it is too early for a formal review of the impact of those provisions in Victoria, an informal six month review has just been undertaken. Officers from Victoria have advised that the review found that the expanded definition of abuse had not led to many applications based on that wider expression of abuse, nor to orders being made inappropriately. Indeed, it found that most allegations of economic or emotional abuse were ancillary to allegations of physical violence or other obviously abusive behaviour.

I now turn to thank the many people who helped us with this legislation whether during its preparation or by comments after it was introduced and, in particular, Ms Maurine Pyke who prepared the initial discussion paper which was released for public consultation and then made recommendations for reform based on the consultation.

I thank the Attorney's department for its hard work, the Office for Women, SAPOL, and Housing—there are just so many agencies that have helped us—and, in particular, Helen Wighton for all her hard work, advice and assistance. It is landmark legislation for victims of domestic violence and in particular for the hidden victims, the children who watch and hear violence in their home and have to live with its consequences.

I particularly acknowledge the cooperation of the opposition and the Hon. Stephen Wade who is representing the opposition on this bill. The opposition has been particularly cooperative, given the lateness of the parliamentary session, in assisting us to pass this bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I asked a question in my second reading contribution which the minister overlooked. It is something I am more than happy to take on notice. I was wondering whether the minister might be able to give me some information on the government's Don't Cross The Line campaign in terms of what research was undertaken in the development of the campaign and what plans are there for evaluations of the campaign.

The Hon. G.E. GAGO: I am happy to take that on notice and bring back a response. Some of those details are available but I do not have them with me today.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. G.E. GAGO: I move:

Page 6, lines 8 and 9 [clause 3(1), definition of public sector agency]—Delete 'Public Sector Management Act 1995' and substitute:

Public Sector Act 2009, but does not include the Legal Services Commission

This amends the definition of 'public sector agency' to achieve two things: first, to make it refer to the Public Sector Act 2009, instead of the Public Sector Management Act; and, secondly, to exclude the Legal Services Commission of South Australia from the definition of the public sector agency for the purposes of this legislation. This is so that the commission is not required to provide information about its clients to police under clause 37 of the bill, on advice that this would be contrary to statutory secrecy obligations, its special statutory independence from the government and the rules of legal professional confidentiality.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 4 to 11 passed.

Clause 12.

The Hon. G.E. GAGO: I move:

Page 13, after line 10—After subclause (2) insert:

(2a) If an intervention order is designed to prevent a form of abuse involving the use or threatened use of particular weapons or articles, the terms of the order should, as far as is practicable, include surrender of the weapons or articles or other measures designed to minimise the risk of the defendant using or threatening to use the weapons or articles to commit an act of abuse against the protected person.

This amendment was prepared at the suggestion of the Commissioner of Police. It draws the issuing authority's attention to the need for the terms of the order itself to minimise the chances of the defendant using weapons or articles to abuse the victim. This requirement is an addition to the other provisions in the act requiring orders to contain firearm terms and allowing police to search for and seize weapons.

The Hon. S.G. WADE: The power to seize weapons already exists within the current powers, which seems to be confirmed by clause 12(3), because it talks about the safe keeping of those weapons. I take it that the commissioner simply wants it to be, if you like, more up-front; that is, the officers to be reminded about that opportunity.

The Hon. G.E. GAGO: The member is exactly right. That was an issue that the commissioner did raise.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 13 and 14 passed.

New clause 14A.

The Hon. G.E. GAGO: I move:

Page 14, after line 22—After clause 14 insert:

14A—Terms of intervention order—date after which defendant may apply for variation or revocation

(1) The Court may, when issuing or varying an intervention order (other than an interim intervention order), include a term fixing a date after which the defendant may apply for variation (or further variation) or revocation of the order.

(2) The date must fall at least 12 months after the date of issue or variation of the order.

(3) If the Court does not include in an intervention order (other than an interim intervention order) a term under subsection (1), the intervention order will be taken to include a term fixing the date falling 12 months after the date of issue or variation of the order as the date after which the defendant may apply for variation (or further variation) or revocation of the order.

This new clause allows a court making an intervention order other than an interim intervention order to include a term that sets a date no sooner than 12 months after the issue of the last variation of the order, after which the defendant may apply to vary or revoke the order. It also provides that if the court does not set such a date the order will be taken to include a term fixing a date 12 months after the date of the issue or variation of the order, after which the defendant can apply to vary or revoke that order.

Clause 11(1) of the bill makes all intervention orders ongoing and indefinite, lasting, subject to variation, until they are revoked. To avoid any doubt about the ongoing nature of intervention orders, clause 11(2) prohibits an issuing authority setting a fixed term for an intervention order. The reason for these provisions is that no one can predict, when issuing an order, at what point the defendant will no longer be likely to commit an act of abuse again and at what point the person protected by the order will no longer be at risk of abuse from that defendant.

The amendment I now move does not change these fundamental elements of the bill and its scheme but simply removes what some people believe to be an insurmountable barrier to revocation or variation of orders, and gives some incentive to a defendant to consent to an intervention order being made against him or her, reducing the number of contested cases.

The related amendment to clause 25 (amendment No.6) contains safeguards against manipulation by defendants so they cannot use the process to bring back victims to court unnecessarily and victims do not have to attend or give evidence for the court to be able to dismiss such an application. We know that, unfortunately, those things occur more often than they should.

The Hon. S.G. WADE: I appreciate the minister putting this amendment in the context of the other provisions of the legislation, but she did not say what specific mischief this amendment seeks to address. What harm does the government see in people subject to an order coming back before 12 months is up?

The Hon. G.E. GAGO: The harm we are trying to avoid is the defendant bringing a case back into court almost straight away to vary or revoke the order, which can be very stressful and is often used as a form or type of intimidation of the victim.

The Hon. S.G. WADE: I take that point, but does not the government's proposed amendment No.6 to clause 25 and new subclause (3a)—the last sentence in amendment 6—cover that? If a magistrate is satisfied that there has not been a substantial change in the relevant circumstances since the order was issued or last varied, they would not need to entertain the application.

The Hon. G.E. GAGO: It is a very complex area, so I will try to give as simple an answer as possible. As I have been advised, under the bill and current arrangements the defendant has to seek leave of the court, first, to vary an order and indicate that there has been significant change in the relevant circumstances. What this provision does is obviate the need for leave to be granted first. The defendant has the opportunity to apply without leave under this but still has to satisfy the court that there has been significant change, as the member has just pointed out.

The Hon. S.G. WADE: I certainly appreciate the government's concern to avoid a protected person being put to undue distress by an application for variation or revocation, and I particularly welcome clause 25 and the fact that in considering an application for a variation or revocation, even before they have received submissions or evidence from the protected person, they can dismiss the application.

My concern with section 14A is that, depending on the nature of the abuse, particularly if it is not violence, if it is within the new fields of abuse, if you like, it may not be helpful to disengage the person who is subject to the order by putting an arbitrary 12 months on it. Particularly with domestic violence victims, I am glad to see the clause 25 protections, and with those protections there I question the risk that we are putting particularly on non-domestic violence orders if we were to put in section 14A.

The Hon. G.E. GAGO: I do stress that it is quite complex. It might help if I explain that this amendment is in response to the magistrates' request for a fixed term, which the government was not prepared to adopt. This amendment is a compromise position arising from their wanting a fixed term. So, that might help with the context.

A date has to be set somewhere. The honourable member is quite right: it is arbitrary. However, the closer you fix it to the offence, the easier it is for the defendant to keep bringing the case back to the courts and using it as a means of harassing the victim, because they have to keep coming back to court. If you put it too far out, there are problems associated with that.

If it is a fixed term, the responsibility is on the victim to keep seeking to renew and extend it. We wanted to get away from that because we found it a most unreliable and onerous way of extending orders. So, the honourable member can see that we have sought to achieve a balancing act, and it is arbitrary. The government, with the support of the opposition, is happy to try this and monitor it. It is a new approach, and we are prepared to monitor it and make changes if it is not working.

The Hon. S.G. WADE: On the point the minister has raised in terms of the enduring nature of the orders, we welcome and understand that. We are specifically concerned about constraining the variation of revocation. I thank the minister for the exposition in terms of the genesis of the clause because that is helpful. Can the minister explain to me on what basis the magistrates were concerned? Was this to try to manage workload; that too many cases would otherwise be brought before the court?

The Hon. G.E. GAGO: I have been advised that it was to manage the workload, to a large extent—not solely, but it was significant.

The Hon. S.G. WADE: I will leave it to the shadow attorney-general to remind the Attorney-General of the need to resource the Magistrates Court. Can the minister also advise what length of time the magistrates sought?

The Hon. G.E. GAGO: They did not stipulate a particular length of time, but I have been advised that they are currently setting fixed terms under current provisions where there is some ambiguity around the capacity to do that. It is an area we do need to address.

The Hon. S.G. WADE: I indicate to the minister that, whilst we will not be opposing this amendment, we are concerned that we do not have people who are defendants not remaining engaged in dealing with their offending behaviour, and we would be concerned that if that was the consequence of this. We also believe that magistrates courts and other courts are best able to make decisions in terms of whether or not a defendant is ready for a variation or revocation of the order to be considered. However, on the basis of the minister's commitment to join with the opposition in monitoring the implementation of the provision, we will support the amendment today.

New clause inserted.

Clauses 15 and 16 passed.

Clause 17.

The Hon. G.E. GAGO: I move:

Page 15, line 14 [Clause 17(3)(d)]—After 'order' insert:

or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place

Subclause (3)(d), interim intervention order issued by police, provides that when the nearest court will not be sitting within the eight day time limit set for the hearing of an application for an intervention order, police issuing an interim order (which is such an application) can set a later date for the hearing that is no more than two days after the court next commences sitting.

This amendment is in response to advice from the Courts Administration Authority about the sitting times for remote circuit courts. Without this amendment, police would not be able as intended to issue interim intervention orders in remote areas because those court sit at intervals longer than the eight days set by clause 17(3) for the application to be brought for the hearing at the nearest court.

The Hon. S.G. WADE: The opposition supports this amendment.

Amendment carried; clause as amended passed.

Clauses 18 and 19 passed.

Clause 20.

The Hon. G.E. GAGO: I move:

Page 17, line 34 [Clause 20(7)(c)]—After 'order' insert:

or if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place

This amendment relates to the preliminary issue of interim intervention orders to achieve the same effect for courts issuing interim orders as for police issuing interim orders under the amendments I moved in the previous amendment. Under this amendment, courts issuing interim orders can also set a later date for the hearing of the application in the same circumstances.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 21 to 24 passed.

Clause 25.

The Hon. G.E. GAGO: I move:

Page 21, lines 26 to 30 [Clause 25(3)]—Delete subclause (3) and substitute:

(3) An application for variation or revocation of an intervention order (other than an interim intervention order) may only be made by the defendant after the date fixed by the order.

(3a) On an application for variation or revocation of an intervention order (other than an interim intervention order) by the defendant, the Court may, without receiving submissions or evidence from the protected person, dismiss the application—

(a) if satisfied that the application is frivolous or vexatious; or

(b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.

This amendment is to division 4, variation or revocation or orders, clause 25, intervention orders. I have already discussed and described this when I moved amendment No. 3, and it is consequential.

The Hon. S.G. WADE: I prefer to say 'related'. Will the minister advise or take on notice the number of 'leave sought, denied' (I do not know the technical term) cases in which magistrates took the view that circumstances had not significantly changed since the order was issued and they denied leave or not allowed an application to proceed?

The Hon. G.E. GAGO: Under current legislation?

The Hon. S.G. Wade: Yes.

The Hon. G.E. GAGO: I am happy to take that on notice and bring back a response if that information is available.

Amendment carried; clause as amended passed.

Clauses 26 and 27 passed.

Clause 28.

The Hon. G.E. GAGO: I move:

Page 23, lines 26 to 32 [Clause 28(4)(b)]—Delete paragraph (b) and substitute:

(b) if the defendant is not legally represented in the proceedings—to be undertaken—

(i) by the defendant submitting to the Court, in the manner required by the Court, the questions the defendant proposes the witness be asked in cross-examination and the Court (or the Court's nominee) asking the witness those of the questions submitted that are determined by the court to be allowable in cross-examination; or

(ii) as otherwise directed by the Court.

This amendment relates to special arrangements for evidence and cross-examination. This clause prohibits an unrepresented defendant cross-examining in person in intervention proceedings unless through counsel but allows him or her instead to submit questions through the judge in writing. The judge vets those for improperness and relevance before asking them of the witness. This amendment removes the requirement for the questions to be submitted in writing and, instead, lets the court stipulate how the questions are to be submitted.

This amendment is in response to advice from the Legal Services Commission, magistrates and others that many unrepresented defendants cannot write or write well enough for it to be fair to require them to submit their questions in writing. These amendments would give the court enough latitude, taken with its ability to control questions for impropriety and relevance and special arrangements for taking evidence from victims, to ensure that the unrepresented defendant can in effect cross examine effectively without speaking directly to the victim.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause passed.

Clause 29 passed.

Clause 30.

The Hon. G.E. GAGO: I move:

Page 24, after line 29—After subclause (3) insert:

(4) Section 10(6) of the Criminal Law (Sentencing) Act 1988 does not apply in relation to an offence against subsection (1).

This amendment inserts after subclause (3) a provision that section 10(6) of the Criminal Law (Sentencing) Act 1988 does not apply to an offence against clause 31 of the bill. Clause 31 makes it an offence to contravene a term of an intervention order imposed under clause 13 of this bill, namely, a term that requires the defendant to be assessed for or participate in an intervention program and comply with any requirements regulating participation in such assessment or program.

This amendment was suggested by the Chief Magistrate. It deals with the anomaly in section 10(6) of the Criminal Law Sentencing Act which provides that a person's failure to comply with or complete an intervention program is not relevant to sentence and was not designed for offences of contravening terms of intervention orders that require a person to be assessed for or participate in intervention programs.

Section 10(6) was designed for breaches of bail agreements, which are not of themselves offences, and for the sentencing, should the defendant be convicted, on the charges from which those bail agreements arose.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clause 31 passed.

Schedule.

The Hon. G.E. GAGO: I move:

New clause, page 28, after line 22—Before clause 2 insert:

1A—Amendment of section 10—Discretion exercisable by bail authority

Section 10(1)(b)—After subparagraph (iii) insert:

(iv) commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009;

1B—Amendment of section 10A—Presumption against bail in certain cases

Section 10(A)(2), definition of prescribed applicant—After paragraph (b) insert:

(ba) an applicant taken into custody in relation to an offence against section 30 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or

This inserts new clauses 1A and 1B. New clause 1A will amend section 10 of the Bail Act to require bail authorities to take into account when determining whether to release a person on bail the possibility that the applicant may, if released, breach an intervention order. New clause 1B will amend section 10A of the Bail Act to apply a presumption against bail to a person who has been taken into custody for an offence of breaching an intervention order if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence. These amendments are to correct an anomaly pointed out by Mr Bill Morris. The reason for restricting the acts or omissions to those involving physical violence is to be consistent with the reasons for the presumption against bail for breach of bail agreement under 10A(2(b) of the Bail Act. The presumption applies only where the breach is of a condition relating to the physical protection of the victim.

The Hon. S.G. WADE: I am trying to think through the fact that the order might have nothing to do with physical violence. If somebody is accused of emotional or financial abuse, is it relevant to question their physical violence behaviour?

The Hon. G.E. GAGO: If the offence is abuse like financial or psychological abuse, this provision will not pertain. The breach can occur only where there has been an act of physical violence; none of the other forms of domestic violence abuse.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 30, after line 30—After clause 10 insert:

Part 5A—Amendment of District Court Act 1991

10A—Amendment of section 54—Accessibility of evidence

Section 54(2)(fa)—after 'Criminal Law (Sentencing) Act 1998' insert:

or the Intervention Orders (Prevention of Abuse) Act 2009

Section 54 governs the accessibility of evidence admitted by the District Court. Section 54(2)(fa) deals with reports made to the District Court about the eligibility of a person for an intervention program. It refers to reports made under the authority of the Bail Act 1985 and the Criminal Law (Sentencing) Act 1988. This bill will now also gives courts the authority to require people to be assessed for these intervention programs. Reports will be made to the District Court under the authority of this legislation, too.

The new clause also ensures the restriction on access to reports made to the District Court about eligibility for intervention programs when these reports are made under the authority of the Intervention Orders (Prevention of Abuse) Act. Without this amendment, reports on the eligibility of a person to undertake an intervention program would be freely accessible to the public if made under the Intervention Order (Prevention of Abuse) Act. However, if made under the authority of any other act they are accessible only by leave of the court.

The amendment ensures that any such reports, however ordered, are accessible only by leave of the District Court. Of course, most intervention orders that refer people for assessment and participation in intervention programs will be made by the Magistrates Court.

Amendment No. 12 deals with the accessibility of reports made to that court, but the Supreme Court and the District Court may also make intervention orders in the same way when they sentence a person, as these courts may make restraining orders. That is why the government is also moving identical amendments to their acts.

Amendment carried.

The Hon. G.E. GAGO: I move:

Clause 11, page 31, after line 3—Before the present contents of clause 11 (now to be designated as subclause (3)) insert:

(1) Section 13B(1)(b)(ii)—delete subparagraph (ii) and substitute:

(ii) if the defendant is not legally represented in the proceedings—to be undertaken—

(A) by the defendant submitting to the judge, in the manner required by the judge, the questions the defendant proposes the witness be asked in cross-examination and the judge (or the judge's delegate) asking the witness those of the questions submitted that are determined by the judge to be allowable in cross-examination; or

(B) as other directed by the judge.

(2) Section 13B(2)—delete subsection (2)

This amends section 13B of the Evidence Act 1929 along the same lines as amendment No. 7 to clause 28(4)(b) of the bill and for the same reasons. This amendment is made to ensure the prohibition on cross-examination in person by unrepresented defendants, unless by counsel in civil proceedings, is in the same terms under both this act and the Evidence Act.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 31, after line 23—After clause 13 insert:

Part 7A—Amendment of Magistrates Court Act 1991

13A—Amendment of section 51—Accessibility of evidence

Section 51(2)(fa)—after 'Criminal Law (Sentencing) Act 1988' insert:

or the Intervention Orders (Prevention of Abuse) Act 2009

This is in the same terms as amendment No. 10 with respect to the equivalent section of the District Court Act, and I have already outlined the reasons.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 33, after line 19—After clause 29 insert:

Part 9A—Amendment of Supreme Court Act 1935

29A—Amendment of section 131—Accessibility of evidence

Section 131(2)(fa)—after 'Criminal Law (Sentencing) Act 1988' insert:

or the intervention Orders (Prevention of Abuse) Act 2009

That is pretty much the same thing.

Amendment carried; schedule as amended passed.

Title.

The Hon. G.E. GAGO: I move:

Delete 'the Evidence Act 1929, the Firearms Act 1977, the Problem Gambling Family Protection Orders Act 2004, the Summary Procedure Act 1921' and substitute:

the District Court Act 1991, the Evidence Act 1929, the Firearms Act 1977, the Magistrates Court Act 1991, the Problem Gambling Family Protection Orders Act 2004, the Summary Procedure Act 1921, the Supreme Court Act 1935

Amendment carried; title as amended passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT