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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-17 Daily Xml
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Bills

Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2020.)

The Hon. M.C. PARNELL (17:03): As the lead speaker for the Greens on this bill I would like to begin by congratulating the Attorney-General for tackling the key issue that this bill tries to address, that is, to modernise the way the law deals with situations of homicide resulting from circumstances of family violence. Members who were here prior to the last state election might recall my 2017 private member's bill, Criminal Law Consolidation (Defences—Domestic Abuse Context) Amendment Bill 2017, which addressed many of the same issues that this government bill is dealing with.

At the time of introduction in October 2017, the South Australian Law Reform Institute (SALRI) had released their stage 1 report, The Provoking Operation of Provocation, but they had not yet finalised the stage 2 report, which was released the following year in April 2018. The stage 1 report, while strongly recommending the abolition of the partial defence of provocation, also said that:

…it would be premature to make or consider any changes to the present law of provocation until its further review in the second stage has been concluded.

Due to that, my 2017 bill addressed other recommendations from the stage 1 report but refrained from tackling the issue of abolishing provocation.

After the stage 2 SALRI report was released, I announced my intention to introduce a new bill, similar to my 2017 bill but with the additional provisions to abolish provocation. I was then advised that the Attorney-General was planning to do the same, so we decided to wait and see. The Greens are pleased that this issue is now being addressed in this government bill.

While considering how to modernise the way our legal system deals with homicides in a family violence context, my office spent a year researching case law and how the laws in other jurisdictions operate. We looked at the law reform in other states that attempted to address these same issues and what the results were. We also conducted extensive consultation with all the key stakeholders and experts in this area of law, including a round table, which proved to be extremely useful.

The bill went through a few incarnations before we settled on a final version, and this was a reflection of the complexity of the issues it was dealing with. I will not repeat all the information contained in my long second reading speech in October 2017, as members can read it for themselves if they are interested. My 2017 bill may not have been the perfect solution to this difficult area of law reform but there was general agreement from the experts that we were heading down the right path and that it was important to kickstart the debate.

So the Greens are pleased the government has now taken the baton and is continuing to run with this important law reform. Whether the government's proposed legislation is the perfect solution or not is yet to be seen and may not be known until the law is tested in the courts. Concerns had been raised that it might not result in fair outcomes for the victims of family violence who kill their abusers, given that we still have mandatory minimum sentencing for murder.

Ian Leader-Elliott, Emeritus Fellow at the University of Adelaide and Adjunct Professor at the University of South Australia School of Law, raised a number of concerns regarding the original draft bill which was significantly different to the bill we have before us. He also raised concerns with this bill which we passed on to the Attorney-General. As a result, the government has filed a new set of amendments (set 2) to address some of these concerns. The Greens will be supporting these amendments.

However, we still have some concerns in relation to sentencing. Importantly, there have been two South Australian cases in which women faced with appalling family violence from husbands were spared gaol time by compassionate sentencing for 'provocation manslaughter'. Mr Leader-Elliott explains that:

…[the] real problem here is the retention of the mandatory life penalty. A more sensible approach to these problems would be possible if life imprisonment was a maximum rather than mandatory penalty for murder.

In the written reply that I received from the Attorney-General's office, the response to this concern read:

Mr Leader-Elliott suggests that the Government should make it clear that the amendments do not preclude a very short sentence for murder, including a suspended sentence, where appalling family violence by the victim has led to a fatal response from the defendant.

As matters stand, a court is not able to impose any of the community based sentences contained in Part 4 of the Sentencing Act in respect of the offence of murder. To depart from this in respect of murder in circumstances of family violence would require legislative amendment and would represent a very significant change in long-standing policy. It could not be achieved by a statement in the Second Reading Speech as suggested. Accordingly, the Government will not be supporting change in this regard.

This is disappointing but it is not unexpected, given the government's support for minimum mandatory sentencing for murder, and I would add minimum mandatory sentencing for a whole range of criminal offences. But given the fact that, under this bill, no procedure will be available to enable the exercise of compassion in sentencing once the partial defence of provocation can no longer be used, the Greens would like to put on the record our concern that this legislation could end up having serious unintended consequences for these survivors of family violence.

In relation to the two South Australian cases I referred to earlier, Rajini Narayan received a head sentence of six years for 'provocation manslaughter' and Marion Taylor received five years. Both had their sentences suspended. If these women had been convicted of murder, a comparable non-parole period would be unprecedented in its lenience.

Even if this bill contemplated equally lenient non-parole period sentencing in severe cases of family violence, no provision has been made for the remission of imprisonment. Effectively, under this bill it appears that women who kill in these circumstances in future will be gaoled—which would be a substantial increase in their punishment.

On a more positive note, as I mentioned earlier the government has drafted amendments in response to another issue raised by Mr Leader-Elliott. He recommended:

Express provision should be made for the consideration of evidence of family violence in duress. Proposed s15B(2) on 'reasonable proportionality' has no explicit application here. Unlike self defence or defence of property, which require a 'reasonably proportionate' response, duress simply requires 'a reasonable response' to the threat. That's a different issue from reasonable proportionality and specific provision should be made for family evidence here. If self defence and the defence of property require a specific provision to activate these proposed evidentiary provisions when 'reasonable proportionality' is an issue, similar provision should be made when duress is raised and 'reasonable response' is an issue. (A court might take that approach to interpretation, but legislatures should not depend on courts to repair their oversights.)

I am pleased that in response the Attorney-General's office replied:

Mr Leader-Elliott suggests that express provision should be made for the consideration of evidence of family violence in the defence of duress. The government supports this and will be filing an amendment.

I am very glad to have helped achieve some reforms behind the scenes, as it were, so that we will not need to be doing anything on the floor.

In relation to the amendments to be moved by the Hon. Connie Bonaros to insert a review clause, the Greens will be supporting this sensible amendment. So, with the reservations that I have previously outlined about the consequences of how these provisions will intersect with minimum mandatory sentencing, overall the Greens will be supporting this bill.

The Hon. C. BONAROS (17:11): I rise on behalf of SA-Best to speak in support of the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Bill 2020. As we know, the bill amends four acts: the Bail Act, the Criminal Law Consolidation Act, the Evidence Act and the Sentencing Act. I understand this bill is based on the preferred recommendations of SALRI in the stage 1 (2017) and stage 2 (2018) reports entitled The Provoking Operation of Provocation.

I would like to commend and thank SALRI for its outstanding work and the work it has undertaken in the development of this bill. I would also like to thank the large number of stakeholders who generously provided their input to the SALRI reports, and hence to the legislation we have before us today. I also acknowledge and thank my Legislative Council colleagues the Hon. Mark Parnell and the Hon. Tammy Franks for their dogged persistence to see this area of the law given much needed law reform.

At the outset it is important to note that the SA Legislative Review Committee stated that any future reform of the provocation defence should only take place in the context of a wholesale review of the mandatory sentencing provisions that also apply in South Australia in respect of murder. SALRI concurred with those views, and I am pleased the provisions of the bill before us are a comprehensive suite of reforms to four acts, not only the outdated common law defence dealt with in this bill.

The current law needed reform to remove its discriminatory gay panic defence aspect, but provocation is only part of a bigger picture that needed to be completely repositioned to reflect current community values and standards. Indeed, the criticisms of provocation have been such that all Australian jurisdictions, bar South Australia, have now either abolished it entirely or at least narrowed its scope. It is really important to acknowledge that although South Australia was the first state to decriminalise homosexual activity way back in 1975, sadly we are now a very distant last to reform this area of law.

The role, scope, and even the existence of provocation as a partial defence to murder has been described by Andrew Hemming, an academic writing in the Western Sydney Law Review, as, 'A totally flawed defence that has no place at all in any Australian jurisdiction irrespective of the particular sentencing regime.'

I think that is a sentiment we in this place agree with. The sexual orientation and gender bias of the partial defence of provocation is offensive. The idea that a victim has somehow contributed to their own death because of an alleged advance or comment a perpetrator took offence to is abhorrent.

The existence of this defence enabled Michael Lindsay to argue in the High Court that the victim he bashed to death in 2011 had caused him to lose control by making unwanted sexual advances. Not only is the existence of the provocation defence abhorrent but the message it sends to the community—that the victim somehow contributed to their own death—is particularly concerning.

As Justice Kirby, the only dissenting judge, so eloquently said at the time:

If every woman who was the subject of a 'gentle', 'non-aggressive' although persistent sexual advance...could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended...

He went on:

...this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands.

I recognise the provocation defence has had some very limited utility for women defendants who have suffered family violence. But for this defence, these women could have been unjustly convicted of murder and mandatorily sentenced to life. This bill attempts to address this very difficult issue comprehensively by effectively abolishing the provocation defence but ensuring that evidence of family violence and the circumstances surrounding it have to be taken into account at trial and in sentencing.

These are very welcome reforms for the reasons that have already been outlined by the Hon. Mark Parnell especially, and I am pleased to see this family violence aspect emphasised consistently and repeatedly throughout the four acts amended by the bill.

The bill also seeks to provide comprehensive guidance to the courts in dealing with offences committed in certain family violence circumstances and clearly defines the concepts and definitions relied upon. There is also provision for the court to receive expert evidence of social framework evidence about family violence. The requirement of a judge to identify and explain the purposes for which evidence of family violence may or may not be used hopefully should avoid any misunderstanding or miscarriage of justice.

Protecting the identity of defendants who have suffered family violence that is of a humiliating or degrading nature is also a welcome protection being inserted into the Evidence Act. The clear intention to take into account family violence and utilise social framework evidence are outlined in the relevant clauses and hopefully will be of assistance in ensuring courts take this into account and do not get into lengthy, protracted disputes over statutory interpretation.

The return of judicial discretion in sentencing a person in exceptional circumstances is also welcome, although I think this is an element of the bill that may require some monitoring to ensure exceptional circumstances are limited to those prescribed and there are not perverse outcomes or unintended consequences. Inserting a presumption against bail for those charged with murder is controversial, and I can think of cases where this has been a real problem, but there is an opportunity for the court to establish exceptional circumstances, so there is still a safety net for those charged to apply for bail. It is not ruled out in the bill.

As I have said, I am strongly supportive of the bill finally abolishing the common law defences of provocation, necessity, duress and marital coercion and replacing two of them with statutory provisions. The defence of marital coercion has been redundant for decades. If it was ever of any practical use as a defence, then I am pleased to see it go. The new provisions for duress and necessity, now replaced with sudden and extraordinary emergency, now more appropriately sit with all of the defences and do not apply to the offences of murder, attempted murder or related murder offences.

Of particular interest is a provision that while defensive action needs to be proportionate to the threat this does not mean that the defendant cannot exceed the force used against them. Under the government's further amendments, the court decides if this is reasonable, especially in cases of family violence, and that is particularly important. This is, in my view, a very sensible provision to avoid ridiculous cases where an innocent victim is charged with an offence when defending themselves because in the circumstances they responded with greater force.

As has been alluded to by the Hon. Mark Parnell, my amendments are to ensure the impacts and outcomes of the operation of the bill are reviewed and a report of that review is provided to parliament after the fifth, but before the sixth, year of operation. The first amendment inserts a new clause to ensure that part 3, division 2, the division that deals with defences, is reviewed in regard to the effect of the abolition of the common law defences and the effects that 15B(2) has had on the operations of sections 15 and 15A, and to consider the operation of the new and modified defences set out in 15D and 15E.

Similarly, the second amendment that I propose to move provides for a review and report to parliament on the operation and effects of the changes to the evidence provisions in the new part 3, division 4. These are innovative sweeping changes in an extremely complex area of law, and it will be prudent to review them again to ensure they are operating as parliament intended. Both amendments prescribe the review and report can make recommendations about further amendments, modifications and adjustments if there are unintended consequences, unforeseen issues, or problems arising in implementing the sweeping changes in the law.

Again, as the Hon. Mark Parnell has pointed out, and as I have just alluded to, these are issues that we have raised with the Attorney, because, obviously, given the complexity of what we are dealing with, there is the potential that there will be unintended consequences. That is not what we want. Again, I commend the work of SALRI, the work of the former Attorney-General, who instigated the review that this bill so heavily relies on, and of course the continued advocacy of the Hon. Mark Parnell and the Hon. Tammy Franks. I look forward to the debate of the bill.

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:22): I thank honourable members for their contributions and the commitment from all parties to progress these long overdue reforms to the law. In particular, I would like to acknowledge the Hon. Ian Hunter and the Hon. Tammy Franks for their longstanding advocacy on this matter and also acknowledge contributions from the Hon. Kyam Maher, the Hon. Mark Parnell and the Hon. Connie Bonaros.

The defence of provocation is archaic. It encourages victim blaming, it is gender biased, it is difficult to understand and, as has been canvassed in this chamber, it remains offensive in its application in circumstances where, colloquially, there has been 'gay panic'. The government and the members in this chamber agree that this is unacceptable.

Bringing this bill before the parliament took longer than anticipated for several reasons, not least of which is the complexity of sentencing law in South Australia and ensuring the drafting of the new provisions met its intended purpose. The bill went through several drafts and was the subject of extensive consultation with lawyers and stakeholders. It remains the government's strong view that the law still needs to recognise circumstances of domestic and family violence in situations where victims of prolonged abuse retaliate against their abusers.

In essence, the settled version of the bill is the simplest of all the options considered. It abolishes the various common law defences, creates new statutory defences and allows for family violence to be considered as an exceptional circumstance for departing from the mandatory minimum non-parole period at the sentencing stage.

I note several amendments have been placed on file, two sets by the government, two sets by the Hon. Connie Bonaros and one amendment by the Hon. Tammy Franks. The government amendments insert transitional provisions, which are necessary to deal with criminal liability, sentencing and evidentiary issues that arise with the commencement of the bill. These are uncontroversial.

Amendments filed yesterday are in response to a concern raised by the Hon. Mark Parnell and Emeritus Professor Ian Leader-Elliott. The amendment makes it abundantly clear that evidence of family violence is relevant to both the subjective and objective aspects of the defences of both self-defence and duress, that is, family violence is a relevant consideration in assessing both a defendant's beliefs in the context of self-defence and duress and in assessing the objective reasonableness of a defendant's conduct.

The government carefully considered the other matters raised and determined that no further changes were needed. The two sets of amendments filed by the Hon. Connie Bonaros relate to a review of these provisions after five years. After communicating with the Attorney's office, Ms Bonaros has agreed to remove two particular aspects and the government thanks Ms Bonaros and will therefore support the [Bonaros-2] amendments.

The amendment filed by the Hon. Tammy Franks erases from correspondence received from the South Australian Rainbow Advocacy Alliance. It proposes that offenders' motivations of hatred or prejudice against a victim be expressly made a consideration in sentencing. Unfortunately, the government is unable to support this amendment at this stage and has conveyed this to Ms Franks and the opposition. There are several reasons for this, but most importantly this has not been the subject of consideration and consultation, unlike the rest of the bill.

The sentencing consideration raised is most appropriately the subject of a separate law reform project and in a separate bill due to the subject matter and the Attorney has indicated that she would be willing to consider a reference to the South Australian Law Reform Institute to facilitate this. I reiterate that sentencing law is complex. Should the Franks amendment pass today, this would impede the progress of the bill as the government would, at the very minimum, need to undertake further consultation with the Law Society, the Bar Association, the courts, the Crown Solicitor and the Office of the Director of Public Prosecutions.

The government acknowledges the longstanding advocacy of Ms Franks for LGBTIQA+ rights and her worthy intention in the movement of this amendment. Once again, I thank all members for their contribution and I look forward to the passage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I might, for the sake of ease of progression of this bill through the committee, indicate what the opposition's attitude will be to the various sets of amendments that have been filed. We will not have much, if any, questions on other clauses of the bill. I can indicate that the opposition will be supporting the amendments filed by the Hon. Connie Bonaros in relation to review clauses.

In relation to the amendments filed by the Hon. Tammy Franks, after discussions with our former colleague Kelly Vincent in this place, we do not disagree with what is being put forward by the suggestions from the SA Rainbow Alliance as expressed in the amendments from the Hon. Tammy Franks. I would appreciate the government perhaps placing on record some of the informal discussions we have had, in that including those amendments as part of this bill—and I would appreciate confirmation from the government—may have the undesirable effect of holding up the passage of this bill and the abolition of the gay panic defence. If that is confirmed, I can indicate we will not support the amendments contained in this bill but we are keen to look at how they might be given expression elsewhere.

The Hon. C. BONAROS: For the record, I can confirm effectively the same: while we are sympathetic to the issues that have been raised—and I note that they are to be included in a private member's bill—I think that might be a more opportune time to consider them given that it may result in an unwanted delay to the passage of this bill. We have sympathy for that position; we just do not want to do anything to hold up this bill. For that reason, we will consider them in the context of a private member's bill proposed by the member.

The Hon. T.A. FRANKS: In lieu, then, of moving and speaking to my amendment, I will at this point thank all those members who have addressed the concerns that have been raised by the South Australian Rainbow Advocacy Alliance. Indeed, I note that there have been over 38,000 South Australians or Australians who have signed a petition, both supporting and welcoming the passage of this bill but also asking us to go further and to ensure that our laws do condemn prejudice and do not condone it and, indeed, go further to protect victims of hate crime. I will not be proceeding with the amendment today.

I note that I gave notice today of a private member's bill to effect—as they are doing in New South Wales, Victoria and the Northern Territory—the intent of ensuring that hate crimes, attacking somebody simply because their sexuality or gender identity offends you, should no longer be given a free pass. We look forward to no doubt seeing, given the express support of the government, the opposition and other crossbenchers today, a speedier passage, in terms of consultation and progress on a piece of legislation that can be supported by all in this place, than we have for this particular piece of provocation legislation.

I am looking forward to seeing the end of the gay panic defence and seeing gendered and bigoted defences for murder removed from our courts. Indeed, we can go further and ensure that hate crimes are outlawed in the future. I hope that this parliament does that job before the next election.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [HumanServ–2]—

Page 3, line 21 [heading to clause 7]—Delete 'Reasonable proportionality' and substitute:

Reasonableness etc where offence committed in circumstances of family violence

Amendment No 2 [HumanServ–2]—

Page 3, lines 24 to 31 [clause 15B, inserted subsection (2)]—Delete inserted subsection (2) and substitute:

(2) In a trial for an offence in which the defendant raises a defence under this Division, the question of whether—

(a) the defendant genuinely believed that particular conduct was necessary and reasonable (either for a defensive purpose or for the purposes referred to in section 15A(1)(a)); or

(b) particular conduct was reasonably proportionate to a particular threat; or

(c) the defendant reasonably believed that a particular threat would be carried out; or

(d) the defendant reasonably believed that particular conduct was the only reasonable way a particular threat could be avoided; or

(e) particular conduct was a reasonable response to a particular threat,

is, if the defendant asserts that the offence occurred in circumstances of family violence, to be determined having regard to any evidence of family violence admitted in the course of the trial.

I believe that as the government speaker on this bill I have outlined a number of things in relation to a range of amendments, both on behalf of government amendments and other members' amendments. But I will reiterate, in relation to this particular amendment that deletes proposed section 15B(2) and replaces it with an alternative section 15B(2), that the purpose of the amendment is to make it abundantly clear that evidence of family violence is relevant to both the subjective and objective aspects of the defences of both self-defence and duress; that is, family violence is a relevant consideration in assessing both a defendant's beliefs in the context of self-defence and duress and in assessing the objective reasonableness of a defendant's conduct.

The Hon. Mark Parnell relayed concerns raised with him that, as previously drafted, section 15B(2) did not clearly articulate exactly how evidence of family violence could be considered in respect of some aspects of those defences. This revised version puts it beyond doubt.

The Hon. M.C. PARNELL: I thank the minister for her explanation. As I have said before, the Greens are happy to have assisted in refining the bill at the last minute, and we will be supporting both of these amendments to clause 7.

Amendments carried; clause as amended passed.

Clause 8.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–2]—

Page 5, after line 18—After inserted section 15E insert:

15F—Review of Division

(1) The Minister must cause a review of the operation of this Division (as amended by the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020) to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and report must include—

(a) consideration of the effect (if any) of the abolition of the common law defences specified in section 14B; and

(b) consideration of the effect (if any) that section 15B(2) has had generally on the operation of sections 15 and 15A; and

(c) consideration of the operation of the defences set out in sections 15D and 15E; and

(d) a recommendation as to whether further modification to the Act is necessary or desirable for the purpose of recognising and addressing the role family violence plays in relation to certain offending,

and may include any other matter the Minister thinks fit.

(3) The review and the report must be completed after the fifth, but before the sixth, anniversary of the commencement of this section.

(4) A report under this section may be combined with a report under section 34Z of the Evidence Act 1929.

(5) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

For the benefit of members, there is set 1 and set 2. I will not be moving set 1. I am only proceeding with set 2, given the explanation that was provided by the minister and discussions that have taken place with the Attorney in relation to some of the issues in set 1. I think we have already outlined, really, what is the purpose amendment No. 1 during the second reading, so I will not reiterate what I have already said. Everyone is supporting it.

Amendment carried; clause as amended passed.

Clause 9 passed.

Clause 10.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–2]—

Page 9, after line 6—After inserted section 34Y insert:

34Z—Review of Division and section 69A

(1) The Minister must cause a review of the operation of this Division and section 69A (as enacted or amended by the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020) to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and report must include—

(a) consideration of the effect (if any) that this Division has had generally in relation to offences committed in circumstances of family violence; and

(b) consideration of whether the circumstances of family violence set out in section 34V should be modified; and

(c) details of any appeals relating to directions given under section 34Y; and

(d) details of any suppression orders made under section 69A(1a); and

(e) a recommendation as to whether further modification to the Act is necessary or desirable for the purpose of recognising and addressing the role family violence plays in relation to certain offending,

and may include any other matter the Minister thinks fit.

(3) The review and the report must be completed after the fifth, but before the sixth, anniversary of the commencement of this section.

(4) A report under this section may be combined with a report under section 15F of the Criminal Law Consolidation Act 1935.

(5) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

I move this amendment for the reasons already outlined. I think we have consensus in relation to this as well.

Amendment carried; clause as amended passed.

Clauses 11 and 12 passed.

New schedule 1.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [HumanServ–1]—

Page 10, after line 12—Insert:

Schedule 1—Transitional provisions

1—Transitional provision—amendments to Criminal Law Consolidation Act 1935

Section 15B(2) of the Criminal Law Consolidation Act 1935 (as enacted by this Act) will be taken not to apply in relation to a trial that commenced before the commencement of this clause.

2—Transitional provisions—amendments to Evidence Act 1929

(1) Subject to subclause (2), Part 3 Division 4 of the Evidence Act 1929 (as enacted by this Act) applies in relation to—

(a) proceedings for an offence commenced but not determined before the commencement of this clause; and

(b) proceedings for an offence commenced after the commencement of this clause (whether the offence was committed before or after that commencement).

(2) Section 34Y of the Evidence Act 1929 (as enacted by this Act) will be taken not to apply in relation to a trial that commenced before the commencement of this clause.

3—Transitional provision—amendments to Sentencing Act 2017

Section 48 of the Sentencing Act 2017 (as amended by this Act) applies in relation to a non-parole period in respect of an offence where—

(a) proceedings for the offence were commenced but not determined before the commencement of this clause; and

(b) proceedings for an offence commenced after the commencement of this clause (whether the offence was committed before or after that commencement).

Transitional provisions are needed to deal with criminal liability, sentencing and evidentiary issues that arise with the commencement of the bill. These transitional provisions will work in conjunction with a staged commencement of the provisions. This is to ensure that appropriate provision is made for legal proceedings that are already on foot before the commencement of the bill.

In some cases, it is appropriate for the law that is applied in those proceedings to remain and be applied as it was prior to the proceedings commencing. In other cases, the new laws can be applied to proceedings that are underway but have not been completed when these provisions commence. There are separate transitional provisions for each of the amendments to the Criminal Law Consolidation Act, the Evidence Act and the Sentencing Act.

Clause 1 disapplies section 15B(2) and (3) of the CLCA to trials that commenced before these new provisions become operative. This is to ensure that the law in relation to reasonable proportionality does not change part way through a trial in cases where self-defence or defence of property is raised. Clause 2 ensures that the new Evidence Act provisions apply to proceedings that have commenced but not been completed when the new provisions commence and to proceedings that are commenced after the provisions become operative.

The only exception to this is new section 34Y, which requires a judge to identify and explain the purpose for which evidence of family violence can be used. Like clause 15B, it is not feasible for this new provision to apply to trials that are already underway. Rather, this provision will apply prospectively to trials that commence after the new provisions become operative.

Clause 3 relates to the changes made to section 48 of the Sentencing Act. It ensures that the amendments to the Sentencing Act apply in relation to any sentence imposed after the commencement of the amending act, regardless of whether the proceedings for the offence had commenced prior to or after the commencement of the amending act. n so doing it clarifies that the amended sentencing scheme applies to proceedings already on foot at the date of commencement, as well as proceedings that commence after the commencement.

New schedule inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:40): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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