Time Limits — Statement by Leader of the House
HON SUE ELLERY (South Metropolitan — Leader of the House) [7.41 pm]: I advise the house about the maximum time limits for each stage of the Family Violence Legislation Reform (COVID-19 Response) Bill 2020. For the second reading, it is 75 minutes; for Committee of the Whole House, 70 minutes; for adoption of report, five minutes; and for the third reading, five minutes.
Resumed from 31 March.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [8.00 pm]: I rise as the lead speaker on behalf of the Greens to indicate that we are very much in support of the Family Violence Legislation Reform (COVID-19 Response) Bill 2020. We are in support of this legislation as a response to COVID-19 because we recognise that we are, unfortunately, looking at a potential increase in family and domestic violence incidents, for a number of reasons. People who are confined are going to be in ongoing close proximity in heightened emotional circumstances, where ordinary opportunities to flee violence or engage in conduct to try to better ensure their safety is effectively removed, and there will also be increased tensions due to job losses and financial pressures. There is a whole range of issues that comes to bear. Certainly, my understanding is that the international experience has been that as a result of COVID-19, there has been a marked increase in family and domestic violence incidents.
I note that it is appropriate that at least portions of the Family Violence Legislation Reform Bill 2019, which we have had available to us for quite some time, have been siphoned off to ensure that some reforms go through urgently. Having said that, the Greens are supportive of these reforms anyway. We support the reforms being made a priority for the reasons I have just articulated, but we are also supportive of the larger bill. I note that means that there are some more controversial elements in the remainder of the matters that were in the original bill. Nevertheless, I look forward to the rest of the bill being presented in this place once we are through this period, so that we can hopefully look at trying to build on the reforms that this bill seeks to implement.
The bill seeks to do a number of things. I will go through those, but I also note that it is enacting a lot of reform that people have been pushing for for a very long time; it just happens that the circumstances of COVID-19 are going to make elements of this bill more important than ever. This legislation seeks to expand the current definition of electronic monitoring under the Sentencing Act and the Sentence Administration Act in all cases in which it applies, not just in respect of family violence offences, to include devices that track the offender’s movements, not just static location monitoring. That is going to include, for example, GPS or radio frequency. I note that during debate on the longer variation of the bill in the other place, the Attorney General said that the government leases the electronic monitoring bracelets rather than purchases them so that the most advanced technology can be utilised. If electronic monitoring is imposed, the offender must permit the device to be installed at their residence or other place specified by their community corrections officer.
The bill will also amend the Sentence Administration Act to expand the list of offences related to electronic monitoring. The bill will add to the list the failure to surrender or deliver a device, the removal of the device, and interfering with the operation of the device. I note that each new offence will provide for a “reasonable excuse”, which is also an important provision to include. If convicted, the penalty will be the same as for the offences of unlawful interference or the damage or destruction of a device.
There are quite a lot of references to changes that were originally proposed within the 2014 Law Reform Commission report that looked into a whole range of reforms that were required. The report was called “Enhancing Family and Domestic Violence Laws”. Recommendation 55 of that report said that the effectiveness of GPS tracking for dangerous sex offenders needed to be reviewed and that the department should consider whether that needed to be extended to family violence offenders and, if so, provide a reasonable opportunity for the public and stakeholders to provide their views.
The bill also takes the opportunity to extend the circumstances in which a court can impose electronic monitoring. As I understand the bill, the court can make electronic monitoring a requirement in any matter, not just family violence matters, whenever it is considering an intensive supervision order or a conditional suspended imprisonment order, if the offender is a high risk to a person, a group of persons or the community generally. I want to seek clarification that my understanding of that is correct.
The bill also enables electronic monitoring to be imposed as a condition of home detention, if that is recommended by a community corrections officer in a report. I ask the minister to please confirm whether these electronic monitoring provisions apply only to adults. I understood from the briefing that children will not be subject to electronic monitoring. I would like to receive confirmation of that, please.
The bill will delete section 16A(3) of the Bail Act, which provides that if an accused has been arrested in an urban area for a breach of a family violence restraining order or a violence restraining order, bail can be considered only by a court, not by police. The effect of that is that if the arrest happens outside court hours, the accused has to be kept in custody. When police consider that to be inappropriate—I think that particularly as we deal with COVID-19, this will probably be more so than ever—they have been using the summons process instead of arrest. Keeping an accused from an urban area in custody or summonsing them is what happens with accused from regional and remote areas. There, police retain discretion to grant bail.
Due to the lack of consistency, the provision will be repealed. From now on, police can consider bail wherever the accused happens to be arrested. That reform will implement recommendation 48 of the Law Reform Commission report. As a result of the longer bill, the Family Violence Legislation Reform Bill, being amended in the other place, this bill will also introduce e-lodgement and e-service for restraining order matters. I ask the minister to confirm for the record whether hard-copy paper versions can still be used for lodgement and service if a party does not have electronic access.
The bill also provides that notification to the protected person that the order has been served can be via electronic communication. That includes email or text. This is again consistent with recommendation 23 of the Law Reform Commission report.
The bill clarifies that except for telephone orders, which lapse after three months, an interim restraining order will last indefinitely, either until it is cancelled or until the case has been finalised. It is not possible to make an interim order for a set period. I think that is a very sensible reform.
Another practical matter that the bill addresses is that when a family violence restraining order is taken out on behalf of the victim by police, a child welfare officer or a guardian, the applicant is taken to be the Commissioner of Police, the CEO of child welfare or the Public Advocate, as applicable; not the officer personally. That is an eminently sensible reform. The list of those who can apply on behalf of the victim is expandable by a regulation and I understand—I ask the minister to confirm—that this is futureproofing and that currently there is no intention to prescribe anyone.
The bill streamlines the act’s service provisions so that a court order for substituted service does not have to be obtained, provided the person attempting to serve the document follows all the steps required by the regulations— first to attempt service and then to effect substituted service. I understand that what exactly those steps will be is still being drafted. I strongly expect those steps to include at the very least an affidavit or some sort of statutory declaration process by the process server so that it can be confirmed for court records that all steps were taken. In due course we will see a disallowable regulation that sets out what those steps will be and we will get an opportunity to review exactly what that will look like.
In two short but significant reforms the bill doubles from one year to two years the limitation period for proceedings for a breach of a family violence restraining order and a violence restraining order or police order. I understand— again, I ask the minister to correct me if I am wrong—that the limitation period for prosecuting a breach of a misconduct restraining order remains at one year. It also increases the maximum penalty to breaching a family violence restraining order or a violence restraining order or police order.
Another short but significant reform made by the bill is to clarify that courts that deal with family law matters or care and protection matters can make ex parte restraining orders if satisfied that the order should be made in the circumstances. This will be an interim order, as is appropriate when the other party has not had an opportunity to be heard. Where the order is made inter parties, it will also be an interim order if the bound person objects to it and the court considers that the order should be an interim one in the circumstances. It covers a wide range of reforms that will amend the Restraining Orders Act, the Sentencing Act and the Bail Act. These are reforms that have been pushed for a very long time. They are a bare minimum of reform that needs to occur. They have been well canvassed. If anything, I look forward to the second tranche of reforms to be made available in this house at a later date, but I recognise that for the purposes of addressing the immediate COVID-19 crisis, getting this bill through is a priority.
Comments and speeches by various members
Title put and passed.
Bill reported, without amendment, and the report adopted.
Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and transmitted to the Assembly.