22 March 2016

2nd Reading Speech

The Hon. ADAM SEARLE (Leader of the Opposition) [9.24 p.m.]: I lead for the Opposition in debate on the Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016. The Opposition does not oppose the bill. The object of the bill is to give effect to the New South Wales component of a national recognition scheme for domestic violence orders [DVOs]. The agreement as to a national recognition scheme was announced—or, perhaps more accurately, re-announced—at the Council of Australian Governments in December last year. In December 2015 every State and Territory agreed to introduce laws relating to a National Domestic Violence Order Scheme to hold domestic violence perpetrators accountable throughout the Commonwealth of Australia. Under the scheme, domestic violence orders will be automatically recognised and enforceable in any State or Territory. Domestic violence orders from New Zealand will also be able to be registered as part of the scheme.

New South Wales, as is so often the way, is the first to introduce model laws through this bill. The model provisions were considered by the Advisory Panel on Reducing Violence against Women and their Children. A number of relevant stakeholders, including Legal Aid NSW and the Chief Magistrate of the State, were also consulted during the drafting of the bill. The bill will allow an individual to apply to the registrar of the court for a declaration that their existing domestic violence order is a recognised domestic violence order in New South Wales and therefore part of the national recognition scheme. This will give some scope for domestic violence orders made before the commencement of the scheme to be recognised across the Commonwealth. However, an order that has been declared to be subject to the national scheme will only be enforceable against a defendant in New South Wales on the date the declaration is made.

I note the informed, constructive and passionate contributions to this debate in the Legislative Assembly by my Labor colleagues representing the electorates of Maitland, Blue Mountains, Wollongong and Blacktown. Like my colleague John Robertson and others in this Parliament, I am a White Ribbon Ambassador, and take this issue very seriously—as I am sure all members do. As my local member of Parliament Trish Doyle, the member for Blue Mountains, noted in her contribution, domestic violence is a major betrayal of trust that has long-term psychological and physical impacts, as well as long-lasting intergenerational effects. I think it is easy to lose sight of that intergenerational dimension. It is not something, however regrettable, that occurred just between two people; the impact is much more widespread.

What happens to a woman and her children is so often beyond their control. However, they can survive domestic and family violence, and move on with their lives. Like the member for Blue Mountains, I pay respect to the victims and survivors, and to all those who assist them—the refuge workers, the domestic violence counsellors, the women’s health centres who perform a sterling service, the police and ambulance services, and others. Like many members in this place, I believe more work is needed in this State to effect change across a number of our systems that are critical to the protections offered by the system of domestic violence orders in New South Wales. The primary aim of this scheme is for existing domestic violence orders, known as DVOs, issued in one jurisdiction to be automatically applicable in another jurisdiction.

This can happen at the moment but it requires the protected person to make an application, which can be problematic. The person protected might not know they have to go through the process, they might be apprehensive to take such action because it may alert the offender to their presence in that jurisdiction or they may simply not want to undergo the trauma of further involvement with the justice system. Turning to the bill, new part 13B, entitled “National recognition of domestic violence orders”, will be inserted into the Crimes (Domestic and Personal Violence) Act 2007. New section 98Y establishes as recognised DVOs in New South Wales an interstate DVO made in a participating jurisdiction, or a registered foreign order. The only foreign jurisdiction involved to date is New Zealand. Because of the way intervention orders in South Australia and violence restraining orders in Western Australia are structured, they may include matters unrelated to domestic violence. Only orders addressing a domestic violence concern are included in this scheme in the bill.

New section 98Z provides for the variation in New South Wales of DVOs from other States and new section 98ZA provides for their revocation. New section 98ZB provides for a recognised DVO to prevail over earlier comparable DVOs. New section 98ZD provides for recognised DVOs and recognised variations to be enforceable in New South Wales against the defendant. They are to be enforced as if they were local DVOs. This also extends to its impact on licences, permits and other authorisations. New section 98ZI specifically relates this to a firearms licence and new section 98ZJ extends it to a weapons permit. Division 3 deals with the variation and revocation of recognised non-local DVOs. Division 4 deals with the exchange of information. The provisions are not limited by the information protection principles of the Privacy and Personal Information Protection Act. I refer to correspondence received today from the Women’s Legal Service NSW, a specialist community legal centre.

The service is supportive of the legislation and recognises progress on the automatic recognition of a domestic violence order in any jurisdiction within Australia. However, the service has some concerns. It notes that over the past few years there has been a significant increase in technology-facilitated stalking and abuse, that is, the use of technology such as the internet, social media, mobile phones, computers and surveillance devices to stalk and perpetuate abuse on a person. In particular, the Women’s Legal Service NSW advises there is a concerning trend of technology being regularly used against women by perpetrators as a tactic within a wider context of domestic violence, including the non-consensual sharing of intimate images.

The Standing Committee on Law and Justice recently delivered a report on so-called revenge porn in which it dealt with issues arising in the privacy context and recommended a statutory tort or cause of action in relation to privacy based on the Australian Law Reform Commission model. The committee has done a very detailed and thorough piece of work that touches on the issue raised by the Women’s Legal Service NSW. In particular, the service is concerned about new section 98ZF (4). That section provides in relation to contravention of an enforceable recognised DVO:

This section does not affect any law of New South Wales that requires a geographical nexus to exist between New South Wales and an offence for a person to be guilty of an offence under the law of New South Wales.

The Women’s Legal Service NSW is concerned that the provision may seek to exclude technology-facilitated stalking and abuse where it takes place across different jurisdictions. The service seeks assurance that abuse that takes place across State and Territory borders will in fact be covered by the bill. I think that concern can be allayed, but I ask the Parliamentary Secretary to get some advice on that. Section 10C (2) of the Crimes Act—which, because of section 10A, extends to all criminal offences—states that a geographical nexus exists between the State and an offence if the offence is committed wholly outside the State but the offence has an effect in the State. On the facts given in the attached letter from the Women’s Legal Service NSW that offence would seem to be satisfied despite the outcome in the particular case it refers to. Because cyberstalking of persons in New South Wales has an effect in New South Wales there would appear to be no need to make any change in the bill.

As we understand it, the bill merely maintains the status quo in the case of prosecuting persons for contravening a prohibition or restriction in a DVO that is recognised in this State. It should be noted that section 10A (3) of the Crimes Act states that if the law that creates an offence makes provision with respect to any geographical consideration concerning the offence, that provision prevails over any inconsistent provision of part 1A of the Crimes Act. New section 98ZF (6) makes clear that there is no intention to override that part. I may be wrong about that analysis, so I ask the Parliamentary Secretary in his reply to give members and the Women’s Legal Service NSW an assurance that abuse that takes place across State and Territory borders will be covered by the bill. If for some reason it is not, I ask the Parliamentary Secretary to undertake to come back to the Parliament to correct the legislation.

When introducing the bill, the Attorney General went to some trouble to claim that New South Wales was leading the nation in addressing domestic violence. At the end of her second reading speech the Attorney General suggested a significant delay in proclamation to allow for interim information sharing capabilities to be put in place, but she gave no hint as to how long that would be. I ask the Parliamentary Secretary in his reply to indicate the time frame. The Attorney appeared to concede it will take several years to fully implement a comprehensive national DVO information sharing system. That rather puts a damper on the Government’s rhetoric surrounding this legislation.

The Government cannot tell us when the system is going to be properly implemented, so there is no time frame for its full implementation. There are still many issues to do with information sharing that will have an impact on that. The member for Maitland, in her contribution to the debate in the other place, noted that there was a substantial body of evidence regarding the difficulty that women in our community have in accessing and enforcing apprehended domestic violence orders and in getting appropriate domestic violence services and response services due to the shortage of spaces in refuges and funding cuts to refuges.

It is not enough to increase the portability of ADVOs if the recommendations to approve their operation or the services needed to support them are not properly in place. The honourable member discussed the New South Wales Domestic Violence Death Review Team, which was established by the former Labor Government in 2010, and noted there has not been a lot of action from the team. There were eight recommendations from reports over the years from 2011-12 to 2013-15 that go to the heart of the operation of ADVOs and would be integral to improving outcomes for women who seek to escape domestic violence. An annual report released every couple of years is not adequate. The Women’s Domestic Violence Court Advocacy Services has 28 services in 114 local courts in this State. However, women often have to travel long distances to access those services or the advocacy services have to engage in extensive travel, which often causes difficulties in providing proper levels of support.

Although there has been some increase in the funding of these services, there has also been a massive increase in the number of clients as a result of government changes requiring every domestic violence report by police to be followed up by the advocacy services. There has been no additional funding in relation to this requirement. In a three-month period in 2014-15 there was a 75 per cent increase in usage, which outstripped any additional funding provided by the Government. This is a significant problem. One of the proposals that the Labor Opposition has advocated is a specialist domestic violence court.

Labor took this proposal to the 2015 election and we feel that the proper implementation of Labor’s positive plan would go a long way to achieving more justice for victims of domestic violence in New South Wales. Our aim is to ensure that this specialist court, with judges and officers, has connected to it the proper wraparound services needed to support women seeking to flee domestic violence and is not merely seen as machinery churning out orders. The interim system that the Attorney will implement as a result of this legislation will not be as effective as the permanent system. The Council of Australian Governments [COAG] communiqué of December 2015 stated that governments had agreed to:

… in the short term, establishing an interim information sharing system that will provide police and courts with information on all DVOs that have been issued, but will not have the same evidentiary or enforcement capacity as the permanent system.

As the shadow Attorney asked of the Attorney in the other place, I ask that the Parliamentary Secretary specify exactly what the inadequacies in the interim arrangements are, as referred to in the COAG communiqué, because the Attorney in her reply did not address these matters. What is it that the interim system will not be able to do that the permanent system will? As long ago as January 2015 the then Prime Minister said domestic violence would be on the COAG agenda and he would ask for urgent action. In April last year COAG also agreed to urgent collective action and a year later the first legislation was presented to the Australian Parliament. The national scheme is a useful reduction of red tape in domestic violence orders. It will help victims who move interstate or who live near borders or perhaps work in one State and live in another. However, some of the language of the Government has been too self-serving or self-congratulatory. As Jane Wangmann from the University of Technology Sydney stated:

COAG’s proposal for automatic recognition would cut the red tape of having to register a DVO in a new state. But is it a new idea, or a sign of great progress? Hardly.

The need for automatic recognition was recognised by the National Council to Reduce Violence Against Women and their children in 2009 and was subsequently included as part of the National Plan to Reduce Violence Against Women and Their Children 2010-2022, as a key action for Australian Governments in 2010-2013 (see Strategy 5.3). In other words, Australia is already running years behind in this area.

What is currently being proposed also fails to grapple with the critical problem of enforcing those DVOs, regardless of where you live in Australia. More work needs to be undertaken in this area to assist women in reporting breaches, ensuring police act on such reports, and that any breaches found by a court are treated seriously.

Ms Wangmann also points out that information sharing, while essential to enforcing orders, is hardly new and it is hardly advancing at a rapid rate. In 2014 the Commonwealth Government provided CrimTrac with $3.3 million to work on this issue, and I understand it is still a long way from being completed. I note that a Legislative Council committee report of the previous Parliament recommended the need for better data capture some time ago, but this has still not been done. COAG is playing a slow game of catch-up and none of this means much if services are not properly funded or delivered on the ground. With those cautionary words, the Opposition does not oppose the bill.