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Family Violence Reforms Bill 2018 - Second Reading

16 October 2018

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, I indicate 
that the Greens will be supporting the legislation, and to acknowledge the 
work the Attorney-General and her department have put into a bill that 
significantly reflects the recommendations of the royal commission.

It is a very difficult time for women and girls in the world. We thought 
we were making progress, and we are here, to some extent, in Tasmania. We 
have gender equality in the Tasmanian Parliament. Women and girls are 
encouraged to aspire to success and to be treated equally. As we know, 
the fight for gender equality and to end violence against women and girls 
is a long way from won.

When we look at the submission to the bill from the Community Legal 
Centres of Tasmania, which has the latest data from Tasmania Police, it is 
very clear that there are either three things happening here. One, family 
and sexual violence is on the increase in Tasmania; two, because of the 
new processes that have been put in place and the emphasis now on dealing 
with family violence, the victims of family violence are more likely to 
report to Tasmania Police because they believe that they will be heard; or 
three, a combination of both those two factors. 

The data here is very sad. Since 2103-14 there has been a significant 
increase in family violence orders issued by both the police and courts, 
with Tasmania Police data noting a 33 per cent increase in police family 
violence orders and a 20 per cent increase in court family violence orders 
over the past four years. In 2013-14 police family violence orders 
totalled 1304 and in 2017-18 police family violence orders totalled 1746, 
so the difficult fact for us as a parliament and as policy makers to deal 
with is that there is a culture in some parts of our broader Australian 
community that does not believe women and girls are equal and which 
tacitly, if not overtly, condones violence towards women and girls. 

As a woman and mother of a daughter, to have a new Prime Minister, for 
example, elected to this country who spent his first two weeks in the job 
talking about strawberries and football, and not going to some of these 
really profound national issues that hold us back as a country, is a great 
disappointment. I acknowledge the Premier is in the Chamber today and he 
was a very significant part of why this is an issue that we engage with in 
a tripartisan way. My colleague, Mrs Petrusma, is not here, but I have 
said it before and it needs to be put on the record again: Mrs Petrusma, 
in the previous term of the parliament, has been a very important agent 
for change here and an advocate for working together. 

There is no doubt that for all the progress made towards gender equality 
and the advancement of women in our community, there are geopolitical 
social circumstances that tell us all too bluntly that we have a long way 
to go. We only saw that in the United States last week with the 
appointment of Justice Brett Kavanaugh to the US Supreme Court, despite 
the fact that a victim of his abuse had testified before the US Congress - 

Mr Barnett - That is rubbish. It's an allegation. You're stating it as 
fact. 

Madam SPEAKER - Order.

Ms O'CONNOR - Are you serious? I beg your pardon? Let the Hansard show 
that Mr Barnett must at some level believe Brett Kavanaugh, the new 
Supreme Court Justice of the United States, is innocent of the charge that 
was levelled at him by one of his victims, who stood up before elected 
representatives and told her story with such compelling, detailed honesty, 
a story that she told a counsellor about six years ago and did not divulge 
post President Trump's decision to nominate Brett Kavanaugh to the US 
Supreme Court. 

This is exactly the problem that we have here, Madam Speaker, where a 
woman who had nothing to gain and everything to lose put herself before 
the people, told her story, a humiliating and terrifying story, and yet 
the Republican members of Congress backed Kavanaugh in. 

 

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, before 
debate on this bill was adjourned on the adjournment yesterday, the 
currently absent from the Chamber Minister for Resources said something 
quite extraordinary. On behalf of women and girls everywhere I feel it is 
really important to highlight how alarming his statement was. When you go 
back and have a look at the uncorrected proofs, I was talking about gender 
inequality and the fact that for women and girls the world over we realise 
we have come some way but we have a long way to go. This was highlighted 
by the fact that an accused sexual predator has been appointed to the 
Supreme Court of the United States, despite the testimony of Dr Christine 
Blasey Ford. 

When I was talking about this, Mr Barnett accused me of being a disgrace, 
said it was 'only an allegation' Dr Ford had made and demanded that I 
apologise. Mr Barnett should apologise to women and girls everywhere, 
actually. Mr Barnett should apologise, even though she cannot hear it and 
is undoubtedly not interested in what is happening in the Tasmanian 
Parliament. Mr Barnett should apologise to every woman who has 
experienced sexual abuse, sexual assault and sexual discrimination. 

Mr Barnett disgraced himself yesterday. It was a case of the patriarchy 
rearing its ugly head again, where you have a situation where a male 
minister instantly backs another powerful white man - he has been 
appointed to the Supreme Court - and ignores the voice of the victim.

I will just point out to Mr Barnett, who is not here, some of the things 
that Dr Christine Blasey Ford said in her incredibly powerful and moving 
testimony to the U.S. Senate Committee on the Judiciary committee. She 
said -

I am here today not because I want to be. I am terrified. I am here 
because I believe it is my civic duty to tell you what happened to me 
while Brett Kavanaugh and I were in high school.

She talked in detail about the assault. She goes on to say -

Brett's assault on me drastically altered my life. For a very long time I 
was too afraid and ashamed to tell anyone these details. I did not want 
to tell my parents that I, at age 15, was in a house without any parents 
present, drinking beer with boys. I convinced myself that because Brett 
did not rape me, I should just move on and just pretend that it did not 
happen.

Over the years I told very, very few friends that I had this traumatic 
experience. I told my husband before we were married that I experienced a 
sexual assault. I had never told the details to anyone the specific 
details until May 2012 during a couples counselling session.

The Minister for Resources is a disgrace. We had 1550 Catholic sisters, 
priests and church leaders sign a letter expressing concern about Judge 
Kavanaugh's nomination to the Supreme Court. We had hundreds of law 
professors from around the United States say in a letter that they sent to 
the judiciary committee that he is not fit to sit on the Supreme Court. 
We had 2400 legal experts sign a letter. If Mr Barnett will listen to 
anyone, the historically influential Christian umbrella group, the 
National Council of Churches, a legacy Christian organisation, said Brett 
Kavanaugh must step aside immediately. 

Mr Barnett should apologise to women and girls everywhere.

We were talking yesterday about the key provisions in this legislation. 
This bill has three specific provisions that will, in our view, better 
protect the victims of family violence. We will hopefully have some 
measure of preventative effect. When we talk about the victims of family 
violence we need to acknowledge we are talking about partners, invariably 
women, and children.

I note that clause 4 of the bill inserts section 170A into the Criminal 
Code. In terms of the feedback only the Australian Lawyers Alliance 
appears to have any issues with these changes, and the Law Society to some 
extent, which have come about as a result of the royal commission's 
recommendations.

In subclauses (a) and (b) the provisions for maintaining a sexual 
relationship with a young person are amended to clarify that each jury 
member does not have to agree that the same three or more sexual acts 
occurred, instead each member only need to be satisfied that three or more 
occurred. We have a new subsection 6(b) in the legislation to provide 
that in sentencing a person for an offence under subsection (2) the 
sentencing judge is to make his or her own findings as to the nature and 
character of the unlawful sexual relationship and sentence the accused 
accordingly.

We have the section 170A amendment, providing that this offence will only 
be proceeded with if the Director of Public Prosecutions consents. As I 
understand it, the DPP will be issuing guidelines in relation to this 
legislative reform. Perhaps the Attorney-General could give us some 
feedback on whether that statement of intent has satisfied any of the 
concerns put forward by the Tasmanian Law Reform Institute, Dr Therese 
Henning, and also put forward by the Law Society and the Australian 
Lawyers Alliance. If the Attorney-General could respond to the Law 
Society's comment that they believe this constitutes bad law that would be 
appreciated.

In the feedback on the consultation, there is agreement that a broader 
review of the Family Violence Act should be undertaken, particularly in 
relation to acknowledging that it is not just a spouse or a partner who 
can be a victim of family violence. There are other significant 
relationships where domestic violence is a factor and they can involve 
children. We know that children are often the collateral damage of 
violent relationships but there is also the potential for older people, as 
Ms Haddad pointed out yesterday, to experience elder abuse in the form of 
family violence. 

As a state we do not yet have the legislative architecture in place to 
make sure that when we talk about elder abuse prevention we not only have 
those helpline services and training and more awareness across agencies 
and the community sector but that we have legislative provisions that 
acknowledge the vulnerability of older people to family and close 
relationship violence. Could the Attorney-General tell the House whether 
there is a broader review of the Family Violence Act 2004 being 
contemplated? I believe it is also a concern that has been raised by the 
Women's Legal Service and other stakeholders. It is timely to have a look 
at the legislation in itself.

Subsection (2) of the amendment bill sets out the offence of persistent 
family violence and reflects the recommendations of the royal commission 
in part. Subsection (3) sets out that the offence constitutes three or 
more unlawful family violence acts. Attorney-General, does this section 
only apply if the family violence offences occurred against the same 
individual? It says 'person' rather than 'person or persons'.

Another question: why was the choice made to apply this offence to a 
repeat perpetrator against a single victim but not a repeat perpetrator 
against multiple victims? Could the Attorney-General answer whether this 
offence was modelled off 'maintaining a sexual relationship with a child 
offence' but the 'maintaining a sexual relationship with a child' requires 
each discrete offence to be an offence of a sexual nature. In this case 
the offences that can be included are much broader.

Was there any thought given to refining the scope of a family violence 
offence?

Subsection (4) mirrors the provisions of maintaining a sexual relationship 
with a child. It requires that,

The prosecution does not need to prove the dates, or exact circumstance 
of, the offences which make up a persistent family violence offence;

The offences can all be different types of family violence offences; and

That each jury member need only be satisfied that three or more offences 
occurred and that they need not all agree on which three offences occurred.

I acknowledge the concerns that have been expressed by the Australian 
Lawyers Alliance and some others about this. When you go back into the 
Royal Commission's work and look at the recommendations this is a really 
critical change of approach. It is not always possible for a victim to 
remember the precise time and date details of an instance of abuse. It is 
not always possible for a jury to be reassured beyond reasonable doubt 
that these instances happened at this time. This is a significant and 
important provision to acknowledge that maintaining a sexual relationship 
with a child is something that can happen over a relatively long time and 
there will be some challenges in obtaining evidence under the current 
framework that acknowledge victims cannot always remember with precision, 
times and dates of abuse. 

Ms Archer - Sorry, do you mean under the amendments proposed, or the 
current performing amendment?

Ms O'CONNOR - I am saying it is a good thing. I am talking about how it 
is hard for a jury now to be satisfied with precision in order to convict. 
It acknowledges young children may not have a good understanding of dates, 
times and locations. It acknowledges delays in reporting may cause 
problems with memory. It acknowledges that repeated and similar events 
may make it difficult to describe or distinguish between distinct events, 
and it also acknowledges the trauma children experience in these 
circumstances.

The third significant reform in the bill we are debating today can protect 
children. It amends the Evidence (Children and Special Witnesses) Act 
2001 to acknowledge that appearing in court can be an intimidating 
experience for victims of family violence. I note the effect of the 
proposed amendments is to ensure that in circumstances where an 
application is made for a family violence order, or an interim family 
violence order, or an application to vary, extend or revoke a police 
family violence order, or a family violence order, and in relation to 
applications for bail that cross-examination of a witness who is the 
alleged victim of the family violence offence can only be undertaken by 
counsel. This deals with the fact that a self-represented defendant has 
been able to cross-examine a witness and that is putting the victims of 
family violence and sexual abuse in an untenable position in my view and 
in the royal commission's view. 

With those few comments and questions, I reiterate we will support this 
legislation. We acknowledge the feedback of stakeholders and urge the 
Attorney-General to address some of those criticisms that came to the 
consultation and remain because proposals to change the draft bill were 
not accepted and that would be for a range of reasons. It would be good 
if the Attorney-General could detail those reasons, and if the Attorney-
General could acknowledge that her colleague, Mr Barnett, in his ill-
thought interjection yesterday, insulted the women of this parliament and 
also survivors of sexual violence the world over. I strongly encourage 
Mr Barnett to come in here and apologise.