FAMILY VIOLENCE LEGISLATION REFORM BILL 2019

Second Reading

Resumed from 12 March.

[speeches and comments of various members]

HON ALISON XAMON (North Metropolitan) [6.18 pm]: I rise on behalf of the Greens as the lead speaker on the Family Violence Legislation Reform Bill 2019. The Greens welcome many of the provisions in the bill. This issue is very important to me. We know that family and domestic violence has an enormous impact on individuals, families and our community. I have spoken previously about the impact family and domestic violence can have by putting people at risk of becoming homeless. I have also spoken about the intersection of domestic violence and poor physical and mental health as well as child protection and poverty. It is all-pervasive and at the core of many of society’s ills. Unfortunately, we know that despite the many efforts to date at all levels of government, family and domestic violence still occurs at crisis levels and significant gaps still remain in support services. We know that domestic violence disproportionately impacts one in three women and also one in two Aboriginal women. The national community attitudes towards violence against women survey found that one in three Australians still believe that a woman is responsible when she is subject to family and domestic violence. I have to say that those sorts of figures, even now in 2020, really make me angry, as does the fact that far too often—we have seen it this year as well in response to some absolutely horrifying incidents—the media still reports on domestic violence deaths by using language that continues to minimise the culpability of the man and focuses on victim behaviour, and by using language such as people apparently driving themselves to the violence being perpetrated on them, or even their own death or even the death of their children. It is clear that we still have a long way to go. Destroy the Joint continues to publish a tally of women killed by violence in Australia, and so far this year we have lost 26 women. I mentioned earlier this month, in May alone we lost twice the usual number of women in Australia, with eight women allegedly being killed by domestic violence. I note, particularly, the impact of COVID-19 in relation to this. There has been a rise in reports to police and refuges, and there is a genuine fear that this will only increase in response to what we know is going to be an increase in financial stress.

I acknowledge that this government has had a welcome focus on the issue of family and domestic violence. This legislation is part of a range of important reforms as well as investment that has been made. Of course, it is still never enough, and I am concerned that more gaps are emerging.

Earlier this month I raised concerns of the sector regarding the government’s failure to adequately fund family and domestic violence counselling advocacy and support services contracts as a direct result of the equal remuneration order. I have to say that the minister’s answer to my question last week was, I thought, dismissive. This really needs to be looked at. I note that this issue was raised in the other place this week as well. These contracts fund people who work on the very front line and they have clients who are in very real danger, which is precisely why we bring in the sorts of legislation that we have in front of us today. I was pleased to see that at least the Minister for Police indicated that she would be willing to look into the issue of the loss of staff who work in some police stations with a view to ensure that those services continue. But we will need to make sure that all ministers responsible in this area urgently try to address this matter.

There have been examples of service reductions for those contracts. One provider has estimated that 470 people will be unable to access its services in a matter of days from 1 July following the closure of some programs, with more who are currently on the waiting list no longer being able to access those supports. Another provider has said that it will be unable to support 324 clients over the next month. I have been told that relates to a 34 per cent reduction. This is before the forecast increase over the next 12 months, which services are absolutely anticipating and which we already know is 17 per cent at present and likely to grow further. Again, these are really vital services that support people who end up attending our police stations. They provide crisis response services and counselling across metropolitan and regional and remote Western Australia. It is significant because this bill does so much important work to try to ensure that people who immediately respond to these crises have the legal framework to reinforce their worth. We need to make sure that essential DV services have sustainable funding. It is not sustainable to keep rolling over contracts year after year on the same terms with no funding increases.

Having said that, I return to the bill. The bill, of course, recommends a range of long outstanding recommendations from the 2014 Law Reform Commission of Western Australia final report “Enhancing Family and Domestic Violence Laws”. Of course, we know that a number of reforms in the original bill were recently transferred into a truncated COVID-19 response version that was passed urgently by this place some time ago, which the Greens were very happy to support.

The bill has a number of specific provisions. It is obvious that we will have further debate on some of those provisions as we move into the Committee of the Whole stage. However, the first amendment addresses issues around the circumstances of aggravation by increasing maximum penalties and also looks at a range of other offences in the Criminal Code. I think that the reform to section 221—that is, the legislation no longer applies to child offenders who are in a family relationship with a victim and whose offence is committed under certain circumstances—is a sensible reform. It is intended to acknowledge that child offending is different from adult offending. We know that, unfortunately, a lot of acting out by children is often a response to exposure to abuse and trauma, including family violence, without the power imbalance that is associated with family violence. I note that Legal Aid WA in its submission to the Law Reform Commission expressed the need for this reform. It referred to a number of its clients, who are young people aged under 25, who it was left to act for. I am pleased to see that provision has been included.

As well as amending the meaning of “circumstances of aggravation”, the bill amends some offences typically associated with family and domestic violence to provide maximum penalties if an offence is committed in circumstances of aggravation.

I note that recommendation 42 of the Law Reform Commission report considers the manner in which the code deals with family violence. The report describes it as confusing and inconsistent because only some offences likely to be applied in family violence cases include an elevated maximum penalty for circumstances of aggravation. I note that a new offence of suffocation and strangulation is included in the bill and will be added to the list of possible alternative convictions on a charge of attempted unlawful killing. This is one provision that has attracted a fair bit of attention. The new offence itself provides for an alternative conviction of common assault. That is the basic charge that currently can be laid if someone suffocates or strangles someone else. Depending on the circumstances, other possible charges that can currently be laid for suffocating or strangling someone include various assault charges, an attempted unlawful killing or actual unlawful killing. Unlike in other jurisdictions, under this bill, as has been discussed, it will be irrelevant whether that person consented. The government has chosen against making a lack of consent an element of the offence for a couple of reasons. It is really important that we make it clear why they are in there, because it is inherently dangerous and life threatening and, therefore, on principle, a person should not be able to consent to it. If the context is violent and there is a witness, the victim ultimately may not have to give evidence; whereas, if a lack of consent had to be proved, victims of violence would have to give evidence in every trial that they had not consented and they would be able to be subject to cross-examination by the perpetrator or the perpetrator’s lawyer on that point. Queensland introduced similar, but not identical, laws in 2016, and that was after its Special Taskforce on Domestic and Family Violence found that strangulation was a key predictor of domestic homicide and therefore the associated penalty needed to reflect that risk. The second reading speech notes that women who experience non-fatal strangulation by their partner are over seven times more likely to be killed than other women, so it is clearly an important red flag that needs to be picked up. Before continuing, I note that the provision is not limited in its application to a family violence context; it is a general offence. As the second reading speech notes, whatever the relationship between the perpetrator and the victim, strangulation or suffocation can have serious adverse health outcomes for the victim, including death; however, the bill proposes that the maximum penalty be higher when there is a family relationship than when there is not.

After the laws were introduced in Queensland in May 2019, the Queensland Sentencing Advisory Council published a sentencing spotlight about this issue. It has some quite stark facts and figures. It said that 287 offenders were sentenced, mostly during the second year because of the time it takes for a case to proceed from charge to sentence; 98.3 per cent of the offenders were male; only 12.2 per cent of offenders were being sentenced for only one offence; 21.6 per cent were being sentenced for one additional offence; and 66.2 per cent were being sentenced for more than one additional offence. The nature of the additional offences included breach of a domestic violence order, and that was in almost 50 per cent of cases, so we are talking about a pattern of behaviour here; at least one further strangulation in 18 per cent of cases; common assault in 42 per cent of cases; and serious assault causing injury in 39 per cent of cases. When the most serious charge was strangulation, 99 per cent of offenders ultimately ended up pleading guilty. One hundred and forty-six cases were examined to find out whether the offender had been sentenced in the previous five years for a different offence, and only 25 per cent of those people had not, so 75 per cent had. I welcome the introduction of this offence, because those sorts of figures demonstrate that there is something very particular and precise about the nature of this type of offending, the way that perpetrators use it and their propensity for a pattern of ongoing violence.

In February 2018, I attended a very informative seminar about non-fatal strangulation that had been organised by the WA Family Law Pathways Network, so this was over two years ago now. I will say that it was a very confronting session. Some of the content was quite distressing, including the long-term injuries that can result from strangulation and suffocation. In 50 per cent of victims, strangulation does not leave visible injuries, but it can still cause brain damage due to the lack of oxygen and may have caused internal injuries that might not show up until days or weeks later. It may cause serious health effects, including memory loss, paralysis, miscarriage, and changes to vision and vocal cords, as well as to hearing and breathing. After attending this seminar and learning about the full extent of the risks of non-fatal strangulation being missed or minimised by police and medical staff, particularly given that there may be no visible signs of injury, I raised the issue in Parliament and spoke of the need to look at what other jurisdictions were doing in response to increased understanding about strangulation. I wanted to know what the thinking from government was at the time, so I asked about policies and practices in health, and I got a very good response. I also asked about police responses, and I have to say that at the time the response was far less comforting. I really hope that, as a result of this legislative reform, strangulation will finally be on everyone’s agenda and that it means we will start understanding the seriousness of it. It is not a small issue; this is really important. This is a really critical part of serious family and domestic violence that is not taken seriously enough. I hope it means that we will see increased training, support and public education in this area, because is quite clear that police generally did not understand the seriousness of really looking out for the issue of when strangulation had occurred in a family and domestic violence context. It was also pointed out the seminar that very often victims will not necessarily mention it at the time. The police needed to ask proactively whether victims had been strangled or whether there had been strangling in the past to find out and get a picture of whether it had featured.

As has been said, the bill also introduces another new offence, which is persistent family violence. The precedent for the way this proposed new offence is drafted I think is found in section 321A of the Criminal Code, which refers to persistent sexual conduct with a child and its equivalent in other Australian jurisdictions. That provision was introduced in section 10 of the Criminal Law and Evidence Amendment Act 2008. When it was first introduced, it was a significant change and was considered quite controversial, but the significance of that provision is that it acknowledges that victims of ongoing child sex abuse can have difficulty recalling the dates and times of specific incidents and particularising repetitive conduct. The Law Reform Commission report confirmed that it is exactly the same for victims of ongoing family violence, and, again, like victims of child sexual abuse, the victim may not have reported the incident at the time due to fear or unawareness that the behaviour that they had been subjected to was criminal or because at the time they might have had a wish to protect the perpetrator from criminal law sanctions. That is surprisingly common, because it could still be someone they are reliant on or do not feel they can leave for a range of reasons. They may not report because of a lack of services, perceived or otherwise, or a lack of confidence in the legal response. The Law Reform Commission stopped short of recommending a similar offence for family violence. One of the commission’s concerns was about including forms of family violence that are not ordinarily recognised by criminal law—for example, economic and emotional abuse. However, I note that the bill in front of us avoids that problem by linking the new offence only to criminal acts. The other main concern the commission had back in 2010 was about the lack of particularity provided to the accused, given that the persistent child sexual abuse revisions had not at that point been much used or tested, but since that time, WA has acquired a decade’s experience of those provisions and they have not proven to be a substantive issue.

Another thing the bill does is give courts discretion, upon their own initiative or on application by the prosecutor, to declare a person to be a serial family violence offender. When it makes that decision, the court is free to take into account any matter it considers relevant, but it always has to have regard to the level of risk that the offender will commit another family violence offence, their criminal record and the nature of the offences. If the court thinks it is appropriate, it can also order assessment of the offender by an expert. A serial family violence offender declaration is not part of the sentence, but its consequences are. A series of provisions will potentially apply, such as being disqualified from having firearms or explosives unless the court decides that it is prepared to grant exemptions. Likewise, the court must consider whether to impose an electronic monitoring requirement when making particular orders, and the Prisoners Review Board must consider whether it needs to impose an electronic monitoring requirement. It is an important to be able to declare someone in this way because it means that there will be a range of additional flow-on effects that will potentially serve to limit that person’s capacity to engage in further offending and to be a risk to others.

The bill makes quite a number of reforms to restraining orders law. One of the examples I wanted to speak about was the inclusion of a dowry abuse as an example of family violence. Again, the impetus for that change was the 2019 final report of the Senate Standing Committee on Legal and Constitutional Affairs, which said that states and territories needed to look at harmonising existing legislation to provide for intervention or violence orders to explicitly recognise dowry abuse as an example of family violence or economic abuse. I welcome that particular reform. In a question about that matter in October 2018, I asked whether the government had considered the Victorian legislation, and in June 2019, I asked whether the government had considered the Senate committee’s recommendation, so I am really pleased to see this being implemented through this bill.

One of the other major reforms is the introduction of automatic lifetime restraining orders against a person who has been convicted of a violent offence for the protection of the victim of that offence. That is an implementation of recommendation 56 of the Law Reform Commission report by making the automatic lifetime restraining order provision apply to acts intended to cause grievous bodily harm or prevent arrest because they are of a similar gravity to the other offences to which that provision applies. Consistent with the government’s position, which the Greens support, child offending is different from adult offending. That is something that we must always remember. If the offender is a child, it will not be mandatory for the court to make an order, and if the court makes an order, it will not be for life. The court will have to specify a different period.

Another change introduced by the bill is the improvement of protections for victims during court proceedings. It will retain a range of the current provisions and will ensure that people will be able to have support people and other people with them during a hearing. The bill will insert a new provision that will require courts and venues for family violence restraining order proceedings to take reasonable, practicable and appropriate steps to ensure that victims feel safe, including actively managing the conduct of the proceedings and limiting cross examination of victims. It is a fairly broad provision. The bill will also introduce conferencing for family violence restraining orders, which, I understand, is hoping to improve compliance with whatever comes out of those conferences. Each party can still be legally represented and have present or available one or more support people who are neither witnesses nor parties to the matter. I was pleased to learn at the briefing that funding will be provided so that the parties can have independent legal representation. I would really appreciate it if it could be confirmed for the record that that is indeed the case.

A range of things can come out of those agreements, including undertakings by a party to attend a behaviour change program, although I note that that will be unenforceable. Again, I was very pleased to learn at the briefing that funding will be made available for voluntary perpetrator behaviour change programs, although I once again note that the funding shortfall that I mentioned earlier will reduce the availability of such programs. We really need to make sure that when we look at the delivery of services across the sector as a whole, we need to be mindful that although additional funding might be made available in order to address the provisions in this bill, the shortfall that is occurring in other funding arrangements may mean that we lose that funding. We need to make sure that we keep up with the service provision because this is a very important reform. The lack of and need for rehabilitation programs, including ensuring that they are available in remote and regional areas and that they are culturally appropriate, gender appropriate, relevant and targeted to causes of offending behaviour has been picked up by a previous Law Reform Commission report and was picked up again in the Law Reform Commission report “Enhancing Family and Domestic Violence Laws”. This is something that has kept coming up over and again. We know that, generally speaking, alternative dispute resolution and conferencing has many advantages. It tends to be faster and cheaper, and is often far less intimidating than a hearing. Parties tend to have a greater commitment to and understanding of the orders that they have developed themselves rather than them being imposed by the court. It is important to note that alternative dispute resolution and court conferencing have been part of the family law process for many years and have increasingly become a feature in other jurisdictions. I point out that once family violence is added to the mix, things start to get a lot more complicated, which we saw in the tragic case of the 2016 murder that occurred during mediation at the Joondalup court. That demonstrates that there can be a very real risk to the victim’s physical safety. If a victim is fearful or unable to negotiate on a fair or equal basis, they may end up settling on quite inappropriate terms that are neither in their best interests or in the best interests of their children. In such circumstances, they can hardly be expected to feel committed to the so-called agreed orders. It is not possible to successfully conference matters when there has been family violence between the parties. Our family law jurisdiction has included counselling, mediation, arbitration, and court conferencing for years, but in that jurisdiction, it is done very carefully. There is screening, risk assessment and a high level of understanding of the nature and dynamics of family violence, including impacts on children of any of the parties. For that reason, I was very pleased to learn at the briefing that registrars who conference restraining order matters will be required to have family violence expertise and to have undergone training to ensure that they are competent at assessing risk and screening out cases that will be unsuitable for conferencing. I ask the minister to please confirm that my understanding of that is correct. That, of course, is consistent with previous Law Reform Commission report recommendations that all courts dealing with family violence matters need to have training for judicial officers on family violence, and facilities and practices in order to secure victims’ safety at court. I note that people who attend conferencing at the Family Court have the benefit of a range of other safety measures. They include security officers and metal detectors. They can shuttle-conference, but also conference by phone or video link. They have separate entries and exits. There is a whole range of services as a wraparound to those provisions. Again, I was very pleased to learn at the briefing that safety arrangements at restraining order courts are being upgraded.

One thing that concerns me about the conferencing provisions in the bill is reporting on what happens during a conference. Under the bill, anything said and done at a conference is inadmissible in civil proceedings unless all parties consent. That is not unusual, but in this particular context I am concerned about whether someone says something during conferencing that might indicate that somebody else is at risk of harm. That might be the other party or the child or maybe the other party’s parents. I acknowledge that if an offence is committed during the conferencing, it is admissible in criminal proceedings. I also acknowledge that the registrar can end that conference, if appropriate, but although sometimes things might happen during restraining orders conferencing that do not result in criminal proceedings, it seems highly likely to me that they will still be highly relevant to the restraining order proceedings or to any family law proceedings. Both the WA Family Court Act and the commonwealth Family Law Act have made it clear that certain communications can be disclosed. In family counselling, the counsellor can disclose a communication if they feel reasonably confident that that will ensure a child is less likely to experience harm or to address an issue of serious and imminent risk to someone’s life, health or property. Further, if there are any disclosures of abuse of a child, those things are admissible unless the court considers there is sufficient evidence of it being available from other sources. Similar provisions also apply to family dispute resolutions. I raise the concern about what will happen around the recording of these proceedings, or the lack of recording of these proceedings.

Another change introduced by the bill is the requirement that courts making a family violence restraining order specifically consider including a term restraining a respondent from the possession of explosives or an explosives licence. Yes, that sounds quite practical; that is good. If someone is committing violent acts, maybe take their explosives off them. Reforms also address some very practical procedural matters within the bill. I was pleased that quite a lot of thought has gone into making sure that a number of provisions that would make it easier to manage these proceedings are being included.

Part of the act currently provides that when sentencing a bound person for breach of a restraining order, it is not a mitigating factor if the breach was aided by the protected person. The bill amends this to provide that it can be a mitigating factor if the parties are in a family relationship and the protected person, without any influence by the bound person, initiated the breach, and none of the bound person’s conduct at the time constituted family violence. Again, this arose out of the 2014 report of the Law Reform Commission of Western Australia.

Those are a number of the changes that the bill makes to the Restraining Orders Act, but of course it also makes a number of changes to the Police Act. A very welcome change that this bill introduces is that police, including auxiliary officers and others who may serve the public at a police station, must make a written record of every family violence incident they attend and every family violence allegation they receive. Further, if the report is made with the consent of the victim, the police must provide a report number or other information to make sure that they can identify that report. Again, it is consistent with the Law Reform Commission recommendations. The commission noted that even if the matter does not proceed, police records corroborate evidence that the victim reported the matter to police, for example, in restraining order proceedings, family law proceedings or criminal injuries compensation proceedings; and, secondly, failure by police to make a record may cause the victim to believe their complaint was not taken seriously, which discourages further reporting. Submissions to the commission overwhelmingly supported this proposal and only one was in opposition, which was the WA Police Force. Its reason was that it said this was already its internal policy, not because it objected to the concept. Based on anecdotal evidence that the police policy was not in fact being followed in all cases, and that if it was already policy that it would not increase the workload for police, the commission considered it appropriate that it become a legislative requirement. That is eminently sensible.

The bill also amends the Road Traffic Act to relieve family victims from the unhappy choice between either taking the rap themselves or risking further family violence by identifying the offender to the police if the perpetrator happens to be pinged for a traffic offence while driving their vehicle. Nothing in that reform, of course, relieves any person from the obligation to identify the driver to police if the vehicle is involved in an incident that causes somebody’s death or bodily harm.

As I have already indicated, a restraining orders court can make an order that prohibits a person from possessing explosives, and a consequence of a serial violence offender declaration is that the person cannot possess those explosives. Another reform that the bill makes is to amend the Evidence Act to make it clear that evidence by an expert about family violence is admissible in criminal law matters, provided it is relevant. The bill sets out a non-exhaustive list of the kinds of evidence that this might include. The bill also makes it clear that in cases when self-defence is claimed, this includes evidence relevant to determining whether the elements of self-defence contained in the Criminal Code are made out. The other interesting change that the bill makes to the Evidence Act is to provide a mechanism whereby the trial judge can give directions to the jury aimed at dispelling misconceptions that they might hold about family violence. Considering the statistics that I gave at the beginning of my speech that one in three Australians still think that the victim is somehow responsible for the violence that is perpetrated upon them, it would seem to me that this is a particularly important provision. The process is that in criminal cases in which family violence is an issue, including cases when self-defence, in response to family violence, is an issue, counsel can request the trial judge to give the directions. If no request is made, the trial judge can still give the direction at their own initiative, if it is in the interest of justice to do so. I suggest that would probably be in every case. The changes to the Evidence Act are again consistent with the recommendations made by the Law Reform Commission. The commission also concluded that, amongst other things, trial directions by judges and changes to the rules of evidence would enable the domestic violence context of homicide to be properly taken into account as well as any relevant cultural or racial issues, why victims might be people for whom the jury feels sympathy, why victims may sometimes fight back and why there might be limited corroborating evidence of past domestic violence. This is all important.

As always, the Greens like to see a review clause in a bill that implements significant and important reforms. The bill contains multiple review clauses. In respect of the changes made by the Criminal Code, there is a single operation and effectiveness review after three years. There is a similar three-year operation and effectiveness review for the changes made to the Sentencing Act and a similar three-year operation and effectiveness review for changes made to the Evidence Act. There is no review clause relating to other reforms made by the bill, namely the changes to the Sentence Administration Act, the Bail Act and the changes to the Restraining Orders Act, which includes a lot of changes. I appreciate that the Restraining Orders Act has been quite considerably reviewed in the relatively recent past; however, the bill introduces a lot of substantive changes that the Greens nevertheless believe would merit some additional review. I note in response to my question on this matter, and that the brief has acknowledged, that a history of piecemeal amendments means that a review of the operation of the act, particularly its language and structure, is likely to be appropriate in coming years. I am pleased that the Department of Justice indicated it is happy to conduct such a review. I would be interested to know whether there is any sort of time frame around that.

A lot of the provisions in this bill simply reflect long-sought change from a range of inquiries and Law Reform Commission reports. The bill is long overdue and will implement some best practice and some better practice. We are always having to update the way we implement our legal changes in this area. We need to ensure that services are able to keep track of not only increasing demand but also the positive legislative initiatives that are being put through, so that people can actually access help when they need to. I am happy to support this bill. I think there are some really important, long overdue and eminently sensible provisions in the bill. I thank those people who have been lobbying and working very hard to try to effect these changes. Now I just really hope that they have the outcome that we all want.

[speeches and comments of various members]

Bill read a second time.

Committee

The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.

[speeches and comments of various members]

Title put and passed.

Report

Bill reported, with amendments, and, by leave, the report adopted.

As to Third Reading — Standing Orders Suspension — Motion

On motion without notice by Hon Sue Ellery (Leader of the House), resolved with an absolute majority — That so much of standing orders be suspended so as to enable the bill to be read a third time forthwith.

Third Reading

Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and returned to the Assembly with amendments.

 

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