CRIMES (DOMESTIC AND PERSONAL VIOLENCE) AMENDMENT (REVIEW) BILL 2016

21 June 2016

2nd Reading Speech


The Hon. ADAM SEARLE ( 17:18 ): I lead for the Opposition in debate on the Crimes (Domestic and Personal Violence) Amendment (Review) Bill 2016. The Opposition does not oppose the bill but will seek to amend it by deleting the proposed change to section 101J of the Coroner’s Act, which reduces reporting by the Domestic Violence Death Review Team. The object of the bill is to give effect to the recommendations contained in two statutory reviews. They are the statutory review of the Crimes (Domestic and Personal Violence) Act 2007 and the statutory review of chapter 9A of the Coroner’s Act 2009 relating to the Domestic Violence Death Review Team. The vast bulk of this bill relates to the former of those two reviews and involves amendments to the principal Act, the Crimes (Domestic and Personal Violence) Act. 

The review is dated 2015 but only became publicly available last week when the Attorney General tabled it in the other place. The majority of the changes in the bill and the recommendations in the review are described by the review as procedural issues. 

In 2007 the principal Act was introduced by the Labor Government. As the statutory review noted:

It is a standalone legislative scheme that consolidated relevant provisions in one place, reduced the complexity identified by the NSWLRC and strengthened protections for victims of domestic violence.

There were further amendments in 2008 and, under this Government, in 2013. The statutory review also noted, at paragraph 2.14:

In its 2014 evaluation of the current scheme BOCSAR reported that 98 per cent of women who experienced physical violence in the month prior to taking out an ADVO no longer experienced physical violence in the month after taking out the order. The study also showed that 24 per cent of women had experienced stalking before an ADVO was taken out, compared to 3.7 per cent after an order was made. The survey revealed that an overwhelming majority of women who take out ADVOs believe they are effective in deterring violent partners.

This review was carried out by the Justice Strategy and Policy section of the Department of Justice pursuant to section 104 of the Act. It required a review to be undertaken within three years of assent to the Act, which was on 7 December 2007. The review made 17 recommendations. The bill adds extra offences from the Crimes Act to the definition of “personal violence offence” in section 4 of the principal Act. The review mentioned sections 112 and 113 of the Crimes Act but did not purport to provide an exhaustive list. The bill has a longer list of offences contained within it. The review talks of resolving anomalies by including extra offences. Following recommendation 4 of the review, the definition of “domestic violence offence” is expanded, with the expanded provision contained in new section 11. 

The definition of “domestic relationship” is extended to include a current partner and a former partner of a person. There is a useful case study from the review that explains the practical impact. Susan and Tom lived together in an intimate relationship for seven years. After separating, Susan formed a relationship with James, and has been living with James for two years. Recently, Tom has made violent threats against James. Under the current Act if James wants the protection of an ADO he needs to make his own application to the court for an APVO. This may require James to enter into mediation with Tom, for example, which is not a requirement under the ADVO scheme.

Including matters within the apprehended domestic violence order scheme often does not add a protection that is not already there but it is a much better way of getting that protection or getting the order. There is also a substantial change concerning the circumstances under which an ADVO can be issued. The Act presently allows the court to make an order without being satisfied that the person in need of protection fears the offender’s conduct when the person in need of protection is a child, suffers from an appreciably below average general intelligence, or when there is a history of personal violence. The relevant conduct includes intimidation, stalking or the commission of a personal violence offence.

The bill adds a new category to this group where an order can be made without the court being satisfied that the person in need of protection fears those things. This new category means that an order can be made if the court is satisfied that the person concerned has reasonable grounds to fear the commission of a domestic violence offence against him or her. They are, however, limited to what are sometimes called standard orders in section 36 of the principal Act. A number of procedural issues were recommended in the review and are found in the bill. The bill provides for the term of provisional orders and when they cease to have effect. There are provisions to allow the court to proceed to final orders in the absence of parties, which is modelled on a provision in the Criminal Procedure Act.

Recommendation 6 of the review is seen in amendments to section 48 of the principal Act, concerning applications for orders to protect children if only children are to be protected by the order. There are other amendments concerning the admission of evidence and transcripts from the Supreme Court and District Court; the replacement of section 72, concerning applications, with the removal of a provision allowing final orders to be revoked after they have expired; and a number of other provisions that I do not need to go into at the moment. Two other changes are worthy of mention. Section 99 of the principal Act deals with costs orders and states that costs awards are governed by the Criminal Procedure Act. It then includes additional provisions. The bill proposes a completely redrafted section so that a standalone provision sets out the position regarding costs separate from other legislation, which I think is appropriate. 

New section 99A provides that costs cannot be awarded against an applicant unless the court is satisfied that the application was frivolous or vexatious. Costs cannot be awarded against an applicant who is a police officer unless he or she made the application knowing it contained matter that was false or misleading in a material particular or had deviated from the reasonable case management of the proceedings so significantly as to be inexcusable. This reflects recommendation 13 of the review. This redrafted provision is narrower than the existing section 99 because the Criminal Procedure Act sets out wider circumstances in which costs could be ordered, including, for example, for procedural misconduct.

These issues were considered in the case of Redman v Willcocks, where the Supreme Court said that the interplay between the Criminal Procedure Act and the principal Act would benefit from clarification by Parliament. The review records a rise in the number of costs orders against police since that case was determined. Hopefully this new section will resolve that. New section 41A will prevent children who appear as witnesses in ADVO proceedings being questioned by a defendant directly. They will be able to be questioned only by a legal practitioner or a suitable person. One immediate problem that emerges from the review is that legal aid is generally not available to defend ADVO proceedings and therefore wealthier defendants may benefit from this provision as opposed to other defendants. The solution is not to allow the defendant to personally cross-examine witnesses. The option of having another suitable person undertaking that task is another alternative. 

The Act already says that a child is required to give evidence in apprehended violence order proceedings only if the court considers it is in the interests of justice, and the court in any event must be closed. The Criminal Procedure Act means that children can be accompanied by a support person. Children can also give evidence in chief through a recording or an audio-visual link. However, the Local Court Practice Note No. 2 of 2012, “Domestic and personal violence proceedings”, already says that children cannot be questioned by an unrepresented defendant and may be questioned only by a court-appointed legal practitioner. Effectively, this bill moves that practice note into a statutory form, and of course will extend it.

Schedule 2 to the bill before the House provides amendments to the Coroners Act and flows from the statutory review chapter 9A of the Coroners Act 2009 on the Domestic Violence Death Review Team. Dated October 2015, this review was also conducted by Justice Strategy and Policy in the Department of Justice. Chapter 9A was legislated for in 2010 by the Labor Government and was recommended by the report of the Domestic Violence Homicide Advisory Panel. Section 101P of the Coroners Act required a review of the chapter to be undertaken three years after the commencement of the chapter. A report was to be tabled within 12 months after that three-year period. So this review is also late—although not as late as the ADVO review.

This bill implements the review’s recommendations concerning the definition of domestic relationships, the representation of various agencies and departments, and the inclusion of the Commissioner of Victims Rights on the team. Recommendation 4 of the review recommends the inclusion of an additional Indigenous representative on the team. The bill does not quite achieve that, adding an extra Aboriginal person or Torres Strait Islander if no other member of the team is already within that category. The bill also proposes an amendment to section 101J of the Coroners Act, reflecting recommendation 6 of the review, so that the Domestic Violence Review Team only reports every two years rather than the present yearly reporting. The Labor Opposition does not support this proposal. We believe that annual reporting should continue as was the case when the team was established. If domestic violence related deaths are as serious an issue as we believe they are, it is not acceptable to reduce the frequency of the reporting requirement. That is especially the case when the basis for making the proposal in the bill is so flimsy.

I think we all recognise that the issue of domestic violence and violence against women is a terrible scourge in our society requiring resolute action by all sides of politics and at all levels of government, leading to a wider societal discussion to change the underpinning attitudes that give rise to these unacceptable behaviours. It is sending the wrong signal in that context to reduce the reporting of violence from annually to every two years. It just does not make any sense. While it was certainly a recommendation of the review, the consideration given to the issue in the review is cursory and, the Opposition thinks, quite thin. The only consideration is in one paragraph of the review—paragraph 4.62 at page 27. The only suggestion for biennial reporting comes from the convenor of the team, the State Coroner. The reasons cited in the review and ascribed to the Coroner are unpersuasive. It sounds more like bureaucratic convenience rather than a sensible reasoned proposal.

The Opposition also finds unpersuasive the claim that it would somehow facilitate increased inter-agency collaboration: If anything, the opposite is the case. The Opposition thinks it could lead to drift and to delay in the activities of different agencies. The real issue is that the Government does not take seriously the work of the team. In 2014 there was a substantive hiatus in its work. The Government refused to appoint a convener so the team could not meet. That followed the resignation of Mary Jerram as State Coroner in November 2013. The end result of that approach by the State Government was that that year’s annual report was delayed by approximately 15 months. The 2012-13 report was tabled only on 20 March 2015, which is extraordinary. Then there is the Government’s inadequate response to the recommendation in the team’s report. It is not just a failure to appoint a convener that reflected the Government’s disinterest; inaugural team membership expired in October 2013 but new members were not appointed by the Government until November of that year. The Women’s Legal Service NSW also opposes the reduction in reporting. It writes:

We do not support the DVDRT preparing a report for Parliament only once every two years. We believe it is important that systemic issues are identified and made public in a timely manner so improvements which could save lives can also be made in a timely manner.

At a minimum the DVDRT should report annually to Parliament as is the current legislative requirement.

The letter points out that the NSW Women’s Alliance had argued previously that the reporting should be every six months, which is twice as frequently as the law currently provides and four times more frequently than this bill proposes. A previous member of that team has expressed concern about the proposed changes, pointing to the number of recommendations that have not been implemented and stating that that is more likely if the recommendations are not reported frequently.

The Opposition believes the lack of scrutiny that comes from less frequent reporting will give rise to a lack of action. A lack of frequent reporting reduces scrutiny. The Government is not using the knowledge that is coming out of the death reviews. The review concedes difficulties in implementation. It seems to me that those difficulties would be made worse, not improved, by lengthening the time between reports. The Opposition also received a letter from the Women’s Legal Service NSW dated 10 May 2016, which raises a number of issues to which the Opposition seeks a response from the Attorney General and, in this House, from the Parliamentary Secretary during her reply. We understand that the letter from the Women’s Legal Service was also sent to the Attorney General.

The Women’s Legal Service NSW seeks clarification that inclusion of section 43A of the Crimes Act in the section 4 definition of “personal violence” will not be used as a tool to hold the adult victims of violence accountable for the perpetrator’s violence and/or failure to provide. It is concerned as to whether sections 51A, 53 and 54 of the Crimes Act can be included in the definition of a “personal violence offence”. It inquires as to whether the current wording in new section 16 (2) (c) (i) should be retained and not amended as proposed. The Women’s Legal Service is concerned at the expansion of new section 35 (2) (c1) by adding additional words, including a particular reference to intimate images. The concern is whether that new section should be expanded by the addition of those words.

The Women’s Legal Service also asks whether protection from cross-examination should be extended to vulnerable witnesses beyond a child, as is currently proposed in new section 41A. It is also interested in clarification in relation to new section 48 (4A) (b) and which children that includes. It also seeks the deletion of new section 50 (4) (c) concerning family law court orders, and inquires whether the Attorney General would agree with that position. The group is concerned about whether new section 72C (1) also may be misused. It is worried about whether there is an imbalance between government and non-government representation on the Domestic Violence Death Review Team as it has been established, and as it is proposed in the review and in this bill.

In relation to the team, the service also argues that there should be a legislative requirement for government to respond to team recommendations in a timely manner, which strikes the Opposition as a very sensible proposal. The Opposition seeks the response of the Government to the issues raised by the Women’s Legal Service NSW. Having said that, with the exception of the issue relating to reporting by the team, the Opposition supports the legislation.