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Attorney-General and Justice – Non-Fatal Strangulation

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 25 November 2020

Tags: Family Violence, Non-Fatal Strangulation, Legislation

Dr WOODRUFF - Minister, today is International Day for the Elimination of Violence against Women. Do you think coercion, control and abuse are factors that should be considered in the prosecution and sentencing of people perpetrating family violence?

Ms ARCHER - I am carefully considering that because I do not have the legislation in front of me as to what is taken into account at present, and whether that is something we are looking at as part of any law reform projects. I do not want to be inconsistent with what is already there or what we might consider. Are you suggesting that there should be some reform?

Dr WOODRUFF - I am asking you as a person, as the Attorney-General, without being so precise, you could substitute other words, but coercion, control and abuse -

Ms ARCHER - I am very concise because I know how my words get taken out of context.

Dr WOODRUFF - Do you think that they should be considered in the prosecution and the sentencing against people perpetrating family violence?

Ms ARCHER - Sentencing is a separate matter to whether or not an offence has been committed. We know that family violence takes all forms. That is part of the reason I brought in a reform to have the offence created in the code, so there is an indictable offence or a crime for persistent family violence. That now takes into account a series of events without having to prove the elements of each and every criminal act, to allow for situations where a victim or survivor cannot recall the full details, and so it has made that easier to prosecute. However, I can acknowledge, and I would believe that part of that offence indeed would be the consideration that family violence takes many forms.

Sometimes it is verbal abuse; sometimes it is financial abuse; sometimes it is physical abuse to varying degrees - and sometimes tragically. Each crime may be dealt with in a different way to the persistent family violence crime. Again, it depends. I am being precise because it up to the DPP to determine how a matter is prosecuted, whether they use that type of defence. If a murder has been committed, for example, in that case the murder becomes the primary crime because it is the most serious and will receive the most serious sentence. I am not deliberately avoiding the question. Of course, coercion and the other factors you mentioned all form family violence, I acknowledge that.

Dr WOODRUFF - I am speaking about concerns in the community that the justice system currently places an undue burden on family violence victims to prove the severity of strangulation committed against them. Reading Coroner Olivia McTaggart's report into the tragic death of Jodi Eaton - which is really very disturbing, hard reading - she documents a range of instances where the man who murdered Ms Eaton engaged in acts of strangulation against women. Her report makes it clear we need non-fatal strangulation to be a standalone offence. That report was handed down on 3 July last year. What date did you refer this matter to the Sentencing Advisory Council?

Ms ARCHER - I am glad you have referred to the fact that I referred it to the Sentencing Advisory Council for high-level independent advice, in particular regarding sentencing matters. In this instance I will need to get you the exact date. I have been advised that it was May 2020, so May this year. I can confirm we have provided funding to the advisory council for this purpose. They know it is a matter of priority for me. I cannot direct them about their schedule but they know it is the highest priority for me and they have acknowledged that. In relation to this particular matter, I really want to stress that I totally acknowledge why victims and survivors want a standalone event. They feel it will single out that type of crime, and I understand that.

What I do not want to see is a perverse outcome in the sentencing of an offender, because states that have a standalone offence have a penalty in the range of five to 10 years, I believe. This is what I expect the council will confirm for me across jurisdictions; but I can say of my overview, it is five to 10 years. Whereas if it is a serious case of strangulation and it falls under grievous bodily harm or some other crime in the Criminal Code, the penalty is up to 21 years. So, a judge has the discretion to award a much higher sentence and meet community expectations on this heinous type of crime. I do not want a perverse outcome, hence the reason I have referred it to the Sentencing Advisory Council for their research and opinion on what they would recommend occurs in relation to this type of offence.

We are taking a sensible approach and getting independent advice on this because my main concern is I don't want to have a perverse outcome that doesn't bring these offenders to justice.

Dr WOODRUFF - Every other state and territory in Australia has implemented this, created this offence - or like Victoria - is committed to doing so.

So, Tasmania, and you as Attorney-General, are standing alone against all other Attorneys-General in bringing this matter to a decision -

Ms ARCHER - I haven't said I am rejecting the idea; I have not said that.

Dr WOODRUFF - Can I finish my question?

CHAIR - Can you make it a question, please?

Dr WOODRUFF - I am getting to it. I am trying to get to the question, Chair. To be fair, other people don't get -

CHAIR - With a long preamble before each one, Dr Woodruff. So please -

Dr WOODRUFF - You said at the beginning that a conversation is okay, and I am being, I think, fair about this. I will get to the question.

It was July 2019 that Coroner McTaggart's report was brought down. That is nearly one and-a-half years ago and this is a critical issue for women today in Tasmania.

So, the Tasmanian Law Reform Institute supports the change. You are holding back a decision to commit to the reform and on the basis of sentencing that has been put in place in other jurisdictions. That does not need to occur in Tasmania.

Why don't you commit to the reform? The Sentencing Advisory Council can provide advice subsequent to that. You haven't even committed to the reform and a time frame for that. It has been six months since the Sentencing Advisory Council has had it. Can you could provide more resourcing as well to them?

CHAIR - That's another question on top of it.

Dr WOODRUFF - Well, commit to it, please.

Ms ARCHER - Can you let me answer the numerous questions that were in there?

I am not going to have words put into my mouth by Dr Woodruff, and I am not going to accept the fact that she does that, and then releases all sorts of media releases reporting that I have said certain things. I have not discounted, at all, that I will move on this. I want -

Dr WOODRUFF - But you haven't said you will.

CHAIR - Dr Woodruff.

Ms ARCHER - What I do as First Law Officer and what I have encouraged members to understand that more reform can be a complex process to avoid unintended legal consequences and perverse outcomes.

Since the coroner's recommendation, I have consulted widely amongst legal stakeholders, not least of all - and I don't disclose discussions that I have - with the judiciary, magistracy or the DPP, or indeed the Solicitor-General. I can guarantee I have been looking at this because it is a priority and a concern. I want to get thorough and independent advice and research from the Sentencing Advisory Council so that we can look at this through the lens of having all the information available to enable an appropriate decision. I have not closed the door; in fact, I have left the door wide open on this.

I think that should indicate to victims and survivors my commitment to doing everything possible to ensure their perpetrators are brought to justice. I want to do that in a manner that is the most appropriate for Tasmania and our victims and survivors. I won't go through all of the law reform I have done, but it has been highly focused on victims and survivors, highly focused.


Dr WOODRUFF - Minister, we never said that you have closed the door on this reform. We have never said that and we acknowledge that the Sentencing Advisory Council needs to make sure that the law would be drafted as intended. If you really do think it is the right thing to do, why don’t you make the commitment today on the International Day for the Elimination of Violence Against Women to make it happen?

Ms ARCHER - Because I like to have all the information in front of me before I commit to law reform. I am committed to doing everything possible to arrive at the right outcome on the issue of strangulation and choking so that we have the best possible and robust law and sentencing regime for that particular criminal activity. It's not acceptable and it is criminal and, in a lot of instances at the moment - in fact, all instances, they are covered by other offences in crime to a varying degree.

Dr WOODRUFF - They're not. This is not true.

Ms ARCHER - But this is what -

Dr WOODRUFF - All the advocates - the Coroner, TLRI, the Women's Legal Service, the Women's Support Services - they're not, minister. That's why all other states have moved to reform the law in this area. It is a precursor to much more violent behaviour, often including homicide.

Ms ARCHER - I want to give the Sentencing Advisory Council the opportunity to respond. I think they've made a commitment to get this to me early next year - yes, early next year so I would like to receive that. What I can confirm for the members is that emotional abuse or intimidation is dealt in section 9 of the Family Violence Act and it already captures controlling behaviour. Section 8 in the act might be considered coercive as it relates to economic abuse and it is also captured by the new persistent family violence crime that I was mentioning, if it occurs, as part of a broader pattern.

That's what I mean by saying overall some of these things are already covered so what we need to do is ensure that it's a standalone offence. We may need to make amendments to other laws as well to ensure we haven't got a case of offences or crimes clashing as well. It's never as easy as it first looks.

Law reform, as I said, can be complex and so the drafting of something like that needs to be considered in this context as well. I have certainly not - and I appreciate you acknowledging that I haven't said that I wouldn't support this. In fact, if the report and the advice comes back to do so, this can be done, but we need to do a bit of work on how it may fit within our criminal laws, and I'm very willing to do so.

Dr WOODRUFF - We haven't actually heard anything this morning that is any different than what you've been telling us for months now. We wrote to you in August about this and -

Ms ARCHER - No, I need you to wait until the Sentencing Advisory Council comes back in early next year.

Dr WOODRUFF - But can you make a commitment to bringing legislation in on the back of that early next year.

Ms ARCHER - I just said to you what I was committed to and that was if the advice comes back that this can be done, whether something can be drafted and it complements existing crimes and if we can actually do it, I'll do it. I don't -

Dr WOODRUFF - Are you saying we might end up being the only state in Australia that can't do something?

CHAIR - Dr Woodruff.

Ms ARCHER - Stop being political on this. I've given you an answer.

Dr WOODRUFF - I'm trying to get a straight answer because you're not saying anything -

CHAIR - Dr Woodruff, please.

Ms ARCHER - You're trying to be political and I don't appreciate it.

Dr WOODRUFF - I'm actually trying to speak up for women who are dying -

Ms ARCHER - Don't you go there. Don't you say I don’t stick up for women.

Dr WOODRUFF - Excuse, minister. No, excuse me, on this issue-

Ms ARCHER - Who enacted persistent family violence?

Dr WOODRUFF - You refused to make a commitment for reform - not saying what the sentencing time would be or anything.

Ms ARCHER - Because I want to take into -

Dr WOODRUFF - We are simply asking on behalf of all the coroners and other people for you to make that commitment.

Ms ARCHER - The Greens just want to be political on this. I've answered the question. I've said I'm committed to doing whatever I can.

CHAIR - I'm giving the call to Ms Haddad.