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Restraint Orders Bill 2019 - Second Reading

10 September 2019

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, the Greens will be supporting the Restraint Orders Bill 2019.

We recognise that restraint orders and the capacity for a court to hear the evidence of the need for a restraint order and to issue one is an important component of protecting the blameless from harm which is perpetrated by another. If we lived in a kinder, more compassionate and gentle society, there may not be a need for restraint orders but there clearly is.

I pay tribute to former attorney-general, Judy Jackson, who was integral to the development of the family violence laws we have in Tasmania and a passionate advocate for stronger protections for the victims of family violence and a legal framework that seeks to protect them.

The Attorney-General stated in her speech that restraint orders have provided important protections for persons who have been subjected to violence, threats to their persons or property, harassment or intimidation, and they aim to prevent further violence or unwanted behaviours. I could not agree more. It is ironic, however, that the words 'harassment' and 'intimidation' are used in this context when, at the same time, the federal conservative Government has legislation it plans to bring on for debate that would allow for the harassment, humiliation and intimidation of a person based on a perceived difference. Whether they be an LGBTI person, a woman, someone living with a disability, someone from a culturally and linguistically diverse background, someone who has married their gay partner or is unmarried, there is a range of attributes that will lose protections should the so-called 'religious freedoms law' currently being debated in Canberra be passed.

I looked at the section from the principal act that this restraint orders bill is replacing. It is very clear, as Ms Haddad said, that the amendments we are dealing with are a refinement and a plain English translation, if you like, of the current act. There is an important difference. 'Restraint order' is not defined in any meaningful way in the principal act. It simply says it means an order made under section 106B, which is the section of the act that establishes the process for seeking a restraint order, holding one and granting one.

There has also been an extension of the definition of stalking. It is a more sophisticated definition of stalking that is now in the amendment bill that is before us. I note that the principal act talks about such quaint technologies as facsimile machines.

Ms Haddad - Some people still have them.

Ms O'CONNOR - You have one?

Ms Haddad - No, but some people do.

Ms O'CONNOR - Some people do and some lawyers will often only operate with materials from the facsimile machine.

I have a couple of questions for the Attorney-General. In the definition of stalking, which is reasonably different from the definition in the Justices Act 1959, section 3(2)(e)

(2) For the purposes of the definition of stalking in subsection (1), an act is done for a lawful purpose if the act is done -

Then it defines a series of acts or professions, people performing their official duties, which is an extension of the principal act. The final subclause is, '(e) by another person as part of his or her professional occupation.'. Perhaps, Attorney-General, you could elaborate. What other occupations, apart from this quite extensive list of occupations and actions, do you believe should have a protection from the legal definition of stalking?

Ms Archer - I think it is there for the discretion of the court, but I will check.

Ms O'CONNOR - If you could lay that out it would be helpful because it is broad as an exemption for stalking. I note that there is an exemption for a person during picketing that is otherwise unlawful and simply note that there has been one failed, disastrous and highly expensive attempt to crack down on peaceful protests. We hear that there is another bill coming before the House because, sometimes, conservatives in government are slow learners and we will be watching that very closely.

The provisions for making a restraint order, former clause 106B(1)(a-d) are fundamentally the same in the new legislation as it is in the principal act, although there has been the removal, for example, of a clause that when a court hears an application for a restraint order, the provision that is set in the principal act, 106B(1)(c) -

(i) a person has behaved in a provocative or offensive manner;

(ii) the behaviour is such as is likely to lead to a breach of the peace; and

It seemed that it was a redundant provision, given all the other explanations in the clauses. There is a new clause in this legislation that is not in the principal act, which is clause 6(3)(c) -

whether it is relevant to the making of the order that a person for whose benefit, or against whom, the order is sought be able to communicate with, or spend time with, the other person;

That is an extension of what is in the principal act for the matters that the justices or the court need to consider. I also note that the outdated language of 'justices' has been replaced by the 'court'.

There are much stronger provisions relating to firearms and the consideration that a court needs to give to a person against whom an order is being sought and their capacity to access firearms. I commend the Attorney-General on that improvement in this legislation, thank you. You might also talk to your colleagues in Cabinet about making sure there is no weakening of the gun laws we have in Tasmania. There have been changes from the Justices Act 1959 in relation to the application for variation, extension and revocation of restraint orders. It is much more clearly defined than it is in the principal act.

That is the extent of the questions we have. We recognise this Restraint Orders Bill 2019 improves the language in current legislation without in any way diminishing the process and the court's powers in relation to hearing applications for restraint orders, granting them and making sure that they are complied with and enforced. We have no issues with this legislation and will not be requiring a committee. We believe it is an improvement on the Justices Act 1959 and I commend the Attorney-General for this legislation.