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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-19 Daily Xml
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INTERVENTION ORDERS (PREVENTION OF ABUSE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 October 2009. Page 3806.)

The Hon. D.G.E. HOOD (11:11): This bill makes significant changes to our laws regarding domestic and personal violence restraining orders, and, in general, it receives Family First's support. However, there are a few items in the bill we believe will require clarification. Generally speaking, Family First has been a strong supporter of this type of legislation, and I expect this bill will be no exception. However, we are looking for some clarification regarding some specific measures, perhaps during the minister's summing up or in the committee stage if that is more appropriate. This bill repeals the Domestic Violence Act 1994 and the parts of the Summary Procedure Act 1921 that govern personal restraining orders, and it makes consequential changes to other acts.

It is fair to say that I have always been a strong supporter of any laws that work towards the prevention of domestic violence. This bill has several positive elements. The police are given additional powers to act swiftly to prevent abuse, and I strongly support those provisions. Indeed, I believe our police have a very difficult job. They have to make on-the-ground decisions, often in a split second, and this legislative measure will give them the powers necessary for them to act appropriately, and Family First strongly supports that aspect of the bill.

However, in my view, there are provisions that intrude very deeply into personal lives and family dynamics. I think it is fair to say that this bill fundamentally rewrites our rules relating to restraining orders and puts not necessarily this government but a government in every living room; it makes a government a participant in almost every possible family argument, as I see it. Every family argument and every act of parental discipline potentially will be targeted under this bill, which is the aspect I highlighted in the first few sentences of my contribution, and that does concern Family First.

I have a number of concerns regarding the wide scope of the definition of 'abuse' in clause 8. It will be possible to issue a restraining order (to be called intervention orders under this measure) on someone, and I will list a few examples, as follows:

Someone who criticises another person on the internet in a way that might cause harm to the person. It is deemed emotional or psychological harm.

Someone who denies a person so-called financial autonomy. I think that term could be misunderstood.

Someone who prevents a family member from having access to joint financial assets, in some circumstances. I am not sure how one does that legally if the joint asset is in joint names.

Exercises a 'quite unreasonable level of control and domination over somebody' (and 'quite unreasonable level' is not defined). I am not sure what that means. I understand what it is supposed to mean. In layman's terms, it probably makes some level of sense, but my concern is how the courts will interpret that term.

Someone who simply follows another person may be subject to one of these intervention orders.

Someone who threatens to institutionalise someone. Maybe that is a more appropriate use of the order, in most circumstances anyway.

To be clear, I do not like people doing these things; I do not think anyone does. I do not agree with one member of a family exercising unreasonable control over another or interfering with another member's so-called financial autonomy. It is wrong to threaten to institutionalise people, which may perhaps occur during an argument, although I must say never in an argument I have been involved in.

I would generally consider such infractions, especially when they occur at the lower end of the scale, as family issues and not police issues and not issues in which the state has a role to play. Indeed, the minister has said that this bill will impact 'private familial relationships'.

Clause 8(5)(h) of the bill also allows intervention orders to be made against one family member for preventing another family member from keeping certain friendships.

Again, in most circumstances, I think people would regard that as a sensible measure. My view is that in some circumstances it may be completely appropriate, for example, to say to a 12 year old child, 'You can't be friends with person X any more; we won't let you associate with person X any more', if, for example, person X is involved with illicit drugs or has a criminal history or is involved in antisocial behaviour in one form or another. I think most parents would consider it to be good parenting to tell their 12 or 13 year old daughter or son that they should not be involved with that person. Yet, potentially—although I am sure it is not the intention of the bill—under the clause 8(5)(h) provision we could see parents subject to intervention orders if they do so. Again, I am sure that is not the intention of the bill but I wonder whether it is a potential unintended consequence.

If a father had a concern about the clothes his daughter was wearing out, for example—as I am sure most dads have at some stage or another—he may very well tell her that she cannot leave the house until she has changed into something more appropriate. I would consider that, in some cases at least, to be good parenting. One can imagine a case where quite a young 11 or 12 year old dresses well beyond her years, and I think most people would deem that that is not necessarily in her best interests at that age.

These things are very contentious, indeed. In these circumstances a parent could be barred from the family house and be forced to stay a certain distance from the child simply for doing things like this. I am not trying to be sensationalist here because I am sure that is not the intention of the bill, but the reality is that, on my reading of the bill, it would be possible under this proposed legislation.

As is currently the case, the private restraining orders will be possible; that is, any person requiring protection will be able to apply for these orders, not only the police. That is the important thing here: it is not only the police who can apply for these orders. The new vast scope for applying for these orders will result in large numbers of these orders being requested, I presume, for any reason across the spectrum, from ordinary neighbourhood disputes to family arguments, to criticising someone else on the internet.

Given that they can be made privately, the police will not have to be convinced that there is merit in the application. Again, that is a very key point. In my view, intervention orders are most appropriately used against violent people who pose a physical risk to another person or their property. If the government wants to get involved in ordinary family disputes—I am not saying this government but I mean the state when I use that word—where no-one is at immediate risk or property is not at immediate risk, we are playing what I consider a dangerous game of potential social engineering and we are diverting necessary police resources from real threats to people and property.

I take this opportunity to thank the Attorney-General's office for the briefing received on this bill. As usual, it was thorough and very helpful. I understand, from the briefing, that the bill has been based largely on Victorian legislation. I must say there was a concern which occurred to me during that early consideration phase, in that basically this legislation is relatively untested. It was passed only a few months ago in Victoria and it is the only state that has legislation to that effect, as I understand it. This is such new legislation that I wonder whether we might be jumping the gun a little early on this. Having said that, I think the intention of the bill is very good, but I wonder about some of these specific measures being potentially misused.

Clause 37 allows police to access information from any state public sector agency to assist in locating defendants so that legal personal service can be effected. This is a very good measure and one which Family First would wholeheartedly support. The one thing I would say, though, is that in practice I understand that most defendants in these circumstances are not good at updating their records with state agencies. However, they are very good at updating their records with Centrelink because, at the end of the day, Centrelink pays them the money that they need to survive.

Many recipients of genuine restraining orders do happen to be unemployed, according to reliable data, and they are required to update their address with Centrelink. They do not get paid if they do not do so. I understand from our briefing, when we raised this issue, that there will be links forged with commonwealth agencies with a view to working more closely with Centrelink to obtain location orders. I advise the council now that, should that measure require legislative change, it will have Family First support whenever it comes before this place.

As I have made clear, I have some concerns about the way the bill will be applied, not with the intention of it, and particularly about the vast scope of clause 8 to catch many ordinary family arguments within this bill's very wide net. Any bill that affects family life so much demands a high level of scrutiny.

I also have a more procedural concern with clause 15, which deals with inconsistent family law or Youth Court orders. The current laws in the Family Law Act provide that, in the event of an inconsistent Family Court child protection order, the child protection order will take precedence. The hierarchy under the current scheme gives precedence to the Youth Court, which makes these protection orders.

However, this bill, at clause 15, provides that the Family Court has powers to override intervention orders, while the Youth Court does not. This may result in unusual situations and inconsistencies in the rare but actual cases in which a child is the beneficiary of a restraining order but also the subject of both Family Court and Youth Court orders. That is, the law will be that the Youth Court order trumps the Family Court which trumps an intervention order which is trumped by the Youth Court. Potentially, this is obviously a jurisdictional mess.

Cases involving severe abuse and violence sometimes may have the three jurisdictions operating at the same time. A bill that took that into account may have provided more direction to the courts. I do appreciate and applaud the government's intention here for the positive aspects of this bill, such as the power for police to make interim snap orders against defendants. This is a very good step in the right direction.

The police are on the ground and they can deal with these issues which require a fast response, far more quickly than the traditional process of applying to the court for an interim order. Again, just to be fair, I see that that is the way this bill will work in 90-plus per cent of cases. It is the exceptions that I have a concern about. With those words of concern, I look forward to the minister addressing them in the summing-up stage or perhaps in committee, if that is more appropriate. This bill has our general support; we are just looking for some reassurance around those matters, and I look forward to hearing them.

Debate adjourned on motion of Hon. S.G. Wade.

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