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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-11-13 Daily Xml
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Statutes Amendment (Domestic Violence) Bill

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:38): I move:

That this bill be now read a second time.

As part of the government's election commitment to implement a suite of measures to combat domestic and family violence, I am pleased to introduce the Statutes Amendment (Domestic Violence) Bill 2018. As a government and as a community, we stand united in our view that domestic violence is unacceptable in any form. The bill, which was the subject of a four-week public consultation process, seeks to put in place a range of legislative measures that will complement other key initiatives of the government's domestic violence reform agenda, such as the statewide trial of the Domestic Violence Disclosure Scheme, which commenced operation on 2 October 2018.

Part 3 of the bill makes two amendments to the Criminal Law Consolidation Act 1935. Clause 5 amends section 5AA(1)(g) to broaden the definition of an aggravated offence to include all the relationships incorporated in the definition of domestic abuse in the Intervention Orders (Prevention of Abuse) Act 2009. An expanded definition will mean that a person's criminal record would more clearly indicate that an offence was domestic abuse, as an aggravated offence will list the specific circumstances of the offence.

Clause 6 inserts a new stand-alone offence of choking, suffocation or strangulation in a domestic setting. The new offence has a maximum penalty of seven years' imprisonment and will apply if a person who is, or has been, in a relationship with another person chokes, suffocates or strangles that person without their consent. There is no requirement that harm be intended or caused. Rather, it is the conscious and voluntary act of choking, suffocation or strangulation that proves the offence.

The creation of a new offence, rather than simply relying on existing offences, such as causing harm or serious harm, endangering life or attempted murder, serves a number of purposes: it increases the penalty for this behaviour where no harm is caused; it recognises the inherent dangerousness of this conduct in a domestic setting and its indication of escalation to domestic homicide; it educates police and the community; and it assists in the assessment of risk to the victim. In addition to the new offence, subclause (4) provides for an alternative verdict of assault where a jury is not satisfied beyond reasonable doubt that the strangulation offence has been established.

Linked to the new strangulation offence is an amendment to section 10A of the Bail Act 1985, which creates a presumption against bail in certain circumstances. For example, there is a presumption against bail if the applicant is taken into custody relating to a breach of an intervention order that involves physical violence or a threat of physical violence, or where an applicant is charged with an aggravated offence involving physical violence or a threat of physical violence if an aggravating circumstance of the offence is that the applicant is alleged to have contrived an intervention order and the offence lay within the range of conduct that the intervention order was designed to prevent.

As strangulation is one of the highest predictors of future serious or fatal domestic violence incidents, the government considers that there should be a presumption against bail for such offences to ensure the continued safety of the victim.

Another key feature of the bill is the insertion of new section 13BB into the Evidence Act 1929. This new provision will help to reduce the stress for victims associated with the court process and to address the problem of complaints being withdrawn in domestic violence cases by allowing the evidence-in-chief of a victim to be admitted in the form of a recording made by a police officer. In order to be admitted under this section, the recording must be in the form of a prescribed recording and it must meet certain preconditions, unless the court is satisfied that the interests of justice require the admission of the evidence.

A recording is a prescribed recording if it occurs as soon as practicable after the commission of the offence, is taken with the victim's informed consent and includes a statement by the victim about their age and that they are being truthful, as well as any other matter required by the regulations or rules of court. The preconditions for admissibility include a requirement that the court is satisfied as to the victim's capacity to give sworn or unsworn evidence; that the court is satisfied that the defendant has been given a reasonable opportunity to listen to or view the recording; and that the victim is available, if required, for further examination, cross-examination or re-examination.

Part 5 of the bill makes a number of amendments to the Intervention Orders (Prevention of Abuse) Act 2009. An intervention order may be issued for the protection of a person against whom it is suspected the defendant will commit an act of abuse. Section 8(2) of the act states that acts of abuse are acts intended to result in physical injury; emotional or psychological harm; an unreasonable and non-consensual denial of financial, social or personal autonomy; or damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. Subsection 8(4) provide examples of what can be considered emotional or psychological harm.

Clause 9 of the bill expands this list of examples to include forced marriage, threatening to distribute invasive images without consent and preventing a person from entering the person's primary place of residence. Proposed new section 26A gives the court the ability to make an interim variation to a final order on application by a police officer.

At present, an application for a variation of a final intervention order can be made pursuant to section 26 of the act. However, subsection (5) provides that, before varying an order, the court must allow the Commissioner of Police, the defendant and each person protected by the order a reasonable opportunity to be heard on the matter. This does not allow for a process to immediately increase the protections for a victim.

An interim variation will be able to be made in the absence of the defendant and will come into force as soon as it is served on the defendant. Once served, the intervention order acts as a summons for the defendant to appear before the court for the purposes of proceedings to finally determine the application for variation of the final intervention order under section 26.

Clause 12 of the bill inserts new section 28A into the Intervention Orders (Prevention of Abuse) Act 2009. This amendment is linked to the amendment to the Evidence Act and is another measure being introduced by the government in order to reduce the trauma on victims associated with the court process.

Pursuant to this section, evidence in the form of a recording made by a police officer can be admitted in proceedings for the making or variation of an intervention order if the court is satisfied that it is in the interests of justice to admit the evidence in that form. If evidence is admitted pursuant to this section, the person cannot be further examined, cross-examined or re-examined on the evidence so admitted without the permission of the court.

Proposed new section 29ZCA has been included at the request of the Chief Magistrate and allows the Youth Court to declare a domestic violence order made in any jurisdiction to be a recognised domestic violence order. At present, only the Magistrates Court has the power to declare an order to be a recognised order for the purposes of the National Domestic Violence Order Scheme, which came into operation on 25 November 2017.

As the Youth Court has the power under section 7(c) of the Youth Court Act to make, vary or revoke an intervention order if the person for or against whom protection is sought is a child or youth, it is appropriate that they also have the power to also declare an order to be a nationally recognised order.

Finally, clause 14 of the bill implements the government's election commitment to introduce legislation to toughen penalties for abusers who repeatedly breach conditions of court orders put in place to protect their victims.

Under section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 there are two separate breach offences. Pursuant to section 31(1), a person who breaches a term of an intervention order imposed under section 13 is liable to a fine of $1,250 or an expiation fee of $160. For any other breach under section 31(2), the maximum penalty is two years' imprisonment.

Clause 14(1) amends section 31(2) to add a pecuniary penalty of $10,000 to the existing penalty of two years' imprisonment. Clause 14(2) inserts a new subsection (2aa) which doubles the penalty for a breach to $20,000 or four years' imprisonment where the breach constitutes a second or subsequent breach or where the breach involves physical violence or a threat of physical violence.

Beyond all aspects of the bill, we must remember that prevention is key to combating domestic and family violence. This bill goes a long way in actioning key legal implements, and will work alongside the already functioning Domestic Violence Disclosure Scheme in stopping domestic violence before it starts.

I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Bail Act 1985

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

This clause provides for a presumption against bail for a person taken into custody in relation to the new offence proposed by clause 6 of the measure (choking, suffocation or strangulation in a domestic setting).

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of section 5AA—Aggravated offences

This clause broadens the concept of an 'aggravated offence' for consistency with the Intervention Orders (Prevention of Abuse) Act 2009.

6—Insertion of Part 3 Division 7AA

This clause creates a new offence of choking, suffocating or strangling a person where the defendant and the victim are, or have been, in a relationship (which is defined in the proposed section consistently with the concept as defined in the Intervention Orders (Prevention of Abuse) Act 2009). The offence does not require proof of harm (unlike the existing offences in Part 3 Division 7A) but has a maximum penalty of 7 years imprisonment, so is more serious than the assault offence in Part 3 Division 7.

Part 4—Amendment of Evidence Act 1929

7—Insertion of section 13BB

This clause inserts a new provision allowing a court to admit in evidence, in proceedings for a domestic violence offence, an audio record, or audio visual record, made by a police officer of a representation made by a complainant when questioned by a police officer in connection with the investigation of the offence. The provision sets out certain preconditions and matters that the court must be satisfied of, ordinarily, before such evidence can be admitted and also gives the court a broad discretion to admit such evidence if satisfied that the interests of justice require the admission of the evidence. The clause also imposes limits on the ability to further examine, cross-examine or re-examine the complainant on the evidence and sets out matters that the judge must put to the jury if the court admits evidence in the form of an audio record, or audio visual record, under the provision.

8—Amendment of section 73—Regulations

This clause amends the regulation making power to make it more consistent with current drafting practice and to ensure that the provision is flexible enough to allow the making of the kinds of regulations that may be required to support proposed section 13BB.

Part 5—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

9—Amendment of section 8—Meaning of abuse—domestic and non-domestic

This clause seeks to include additional examples of circumstances that will constitute acts of abuse, namely forcing a person to marry another person, preventing a person from entering the person's place of residence and taking an invasive image of a person and threatening to distribute it without the person's consent.

10—Amendment of section 21—Preliminary hearing and issue of interim intervention order

This clause makes a minor change to the wording of section 21 for consistency with proposed section 26A.

11—Insertion of section 26A

This clause allows for the making of an interim order varying an intervention order where the application is made by a police officer.

12—Insertion of section 28A

This clause seeks to insert a new section 28A. The amendment is related to the amendment to the Evidence Act 1929 and allows evidence in the form of an audio record, or an audio visual record, to be admitted in proceedings for the making or variation of an intervention order where a police officer is the applicant in the proceedings and the Court is satisfied that it is in the interests of justice to admit the evidence in that form.

13—Insertion of section 29ZCA

This clause allows the Youth Court (in addition to the Magistrates Court) to declare any DVO made in any jurisdiction to be a recognised DVO in this jurisdiction.

14—Amendment of section 31—Contravention of intervention order

This clause amends section 31 to add a $10,000 fine to the penalty for breach of a term of an intervention order (other than a term imposed under section 13). The provision also creates a higher maximum penalty for a second or subsequent such breach or for a breach that involved physical violence or a threat of physical violence.

15—Amendment of section 42—Regulations

This clause amends the regulation making power to make it more consistent with current drafting practice and to ensure that the provision is flexible enough to allow the making of the kinds of regulations that may be required under proposed section 28A.

Debate adjourned on motion of Hon. J.E. Hanson.

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