You are here

Criminal Code Amendment Bill 2022


Cassy O'Connor MP

Cassy O'Connor MP  -  Tuesday, 22 March 2022

Tags: Non-Fatal Strangulation, Justice, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, I now have carriage of this bill as Dr Woodruff cannot be in the House today.

The Greens strongly support the bill and the establishment of the new standalone criminal offence for strangulation under the code. We also strongly support the second key element in the bill which relates to the definition of consent, to expressly express conduct that is colloquially known as 'stealthing' which, as the Attorney General has made clear in her second reading speech, is another form of rape.

It is now almost two years since Coroner Olivia McTaggart handed down her report, which recommended that a standalone offence of non-fatal strangulation be enacted in Tasmania. I understand law reform can take some time but I note that it has been two years since the coroner's report was handed down. The Attorney-General would be aware that the Greens have been advocating for this law reform since July or August 2020 when we wrote to the Attorney-General in response to Coroner McTaggart's July 2019 report - it is nearly three years - and encouraged the Attorney-General to move on this as quickly as possible. Every day of delay is a day where another woman or child may suffer at the hands of a violent, abusive, coercive partner.

I want to take a moment to acknowledge on behalf of the Greens victims of domestic and family violence and sexual assault, survivors of harm at the hands, invariably, of men. I want to acknowledge with a heavy heart that in Australia about one woman a week dies at the hands of a violent partner and that not all victims are survivors.

We recognise that the Attorney-General took seriously the coroner's recommendation, and then referred the question of whether there should be a standalone offence to the Sentencing Advisory Council, which released its research paper Sentencing for non-fatal strangulation in May of last year. A number of recommendations made by the Sentencing Advisory Council have not yet been committed to or dealt with by this Government or the Attorney-General.

My first question to the Attorney-General relates to the recommendations on page 79 of the SAC report: 1.

to amend the Sentencing Act 1997 to provide that strangulation and suffocation are aggravating circumstances in relation to an offence; 2.

to amend the Family Violence Act section 13A to provide for recording of non-fatal strangulation as a particular of a family violence offence on a person's criminal record; and 3.

amend the Sentencing Act 1997 to provide for the recording of non-fatal strangulation as a particular of the offence on a person's criminal record in cases other than family violence cases.

Legislation to amend the Family Violence Act was tabled in the House this morning. At first glance I can see no evidence that there is an amendment there that provides for the recording of non-fatal strangulation as a particular of a family violence offence on a person's criminal record.

Could the Attorney-General please update the House on the progress towards those three recommendations that were made by the Sentencing Advisory Council? Because these are interconnected issues, could the Attorney-General also update the House on amendments to the Working With Vulnerable People Registration Act, which are clearly needed? This is legislation that I pushed through the Labor-Greens cabinet to make sure that we had a framework for working with vulnerable people, and particularly children. At that point we were the only jurisdiction that did not have this framework in place.

The legislation was always intended to be regularly amended to encapsulate new cohorts of vulnerability. That is, people who as a result of age, homelessness, culturally and linguistically diverse background, disability, have a particular vulnerability, have a particular reliance on care workers and support workers. Those changes have not been made, so the Working With Vulnerable People Act remains insufficient to protect the vulnerable people it was always intended to protect, and certainly as minister it was my intention that those cohorts of people would also receive the protection of working with vulnerable people registration for those workers they came into contact with.

I note that with one notable exception there is strong support from stakeholder organisations for the reforms we are debating today. However, I am very disappointed in what I think is the dismissively brief feedback from Mr Luke Rheinberger of the Law Society of Tasmania, who basically says that the Law Society, through him, does not support this reform. I will read into the Hansard the Law Society's feedback:

Thank you for the opportunity to comment on the bill, which inspired a good deal of discussion and debate amongst members of the Criminal Law Committee.

The committee is of quite a strong view that both the amendments to section 2A and the addition of the crime of strangulation are unnecessary. The committee considers that the code as it stands deals adequately with crimes involving strangulation, and that the current consent provisions are able to deal with the circumstances envisaged by the proposed amendments.

Assuming a bill reaches parliament, the committee's only comment with respect to the draft is whether the crime of strangulation is capable of clearer definition, in particular whether the consequences of the unlawful conduct ought to form part of the crime, as is the case in New South Wales.

I am not one of the esteemed people in here who has a law degree, but obviously our outstanding coroner, Olivia McTaggart, holds a very different view from that of the Law Society of Tasmania. I wonder, in passing, how many women are on the Criminal Law Committee of the Law Society of Tasmania. It would be interesting to know.

The Attorney-General and the Greens had some back and forth over when the reforms would be enacted. The last correspondence I received from the Attorney-General and Minister for Justice was dated 31 August 2020 - a good 18 months ago now. As I said earlier, I have no doubt the Attorney-General takes this issue very seriously because we have an amendment bill before us today. The Attorney-General tells us through this correspondence:

Further to Coroner Olivia McTaggart's recommendation, I referred the issue of non-fatal strangulation to the Sentencing Advisory Council earlier this year, with a focus on sentencing outcomes and factors considered for relevant offending and jurisdictions with a strangulation offence. In Tasmania the research will provide valuable information for considering the best response to the question of a new offence in Tasmania.

The Attorney-General reassures Dr Woodruff and me that she is doing all she can to ensure it is progressed as a matter of priority. She points out that:

When considering this issue, there are a number of factors that must be considered which have been raised by some within the legal profession; namely, that indictable offences in the Tasmanian Criminal Code can already capture non-fatal strangulation, choking or suffocation, and carry a maximum imprisonment term of 21 years.

Further, the creation of a separate offence may result in complainants being required to give evidence multiple times. Choking and strangulation really occurs without [??] other serious and brutal conduct, where all acts can be covered in one offence. The creation of a separate offence could create more trials, causing further delays to complainants, witnesses and accused persons alike.

I appreciate that this correspondence is in part the Attorney-General fleshing out some of the issues that have been raised, and not at that point in time necessarily committing to the reform. I am interested in the Attorney-General's response to the issue raised by the Law Society, as well as this particular issue which has been raised in her correspondence to us, and that is that the creation of separate offences could create more trials, causing further delays for complainants, witnesses and accused persons alike. I personally do not see how that could be the case but I am interested in the Attorney-General's response to that question.

In response to the matter raised by the Law Society I note that the amendment bill itself does not provide a definition of strangulation or non-fatal strangulation, unless it is earlier in the Criminal Code and I have missed it, although the bill does say that a person who intentionally and unlawfully chokes, suffocates or strangles another person is guilty of a crime and the charge is strangulation. I ask the Attorney-General if that is contained within that clause and does she believe that is the definition?

A further amendment to the Criminal Code is to insert section 333A, attempted murder:

Upon an indictment for attempting to commit murder, the accused person may be convicted of:

(a) an unlawful act intended to cause bodily harm; or

(b) strangulation.

I believe this legislation is strong and necessary and enables Tasmania to catch up with the rest of the country because, yet again, as it was with working with vulnerable people legislation, we are the laggards. We are, for example, also one of the few jurisdictions that does not have an offence of misconduct in public office, which has been called for by the Integrity Commission at least twice and I think three times.

The Women's Legal Service, in its submission, stated that it supports the new standalone offence of non-fatal strangulation, saying:

The seriousness of this type of offending has not been to date adequately captured in existing legislation. Victims of non-fatal strangulation are seven times more likely to be killed by their partner, when compared to victims of family violence where non-fatal strangulation has not occurred. It is a warning sign of escalating violence and women are 13 times more likely to be the victim of it than men, making it a gendered issue and one of great importance to us at the Women's Legal Service of Tasmania.

The Women's Legal Service in some detail highlights why the current legal framework is insufficient to adequately protect victims of domestic and family violence who are assaulted or subject to non-fatal strangulation.

Women's Health Tasmania also strongly supports the introduction of non-fatal strangulation as a separate offence and the new consent provisions. Women's Health Tasmania states that:

The creation of a standalone offence in its current form recognises the voices of survivors of non-fatal strangulation and the advocacy of specialist family violence services; demonstrates to the community, the judiciary and police, the seriousness of non-fatal strangulation; increases awareness of non-fatal strangulation as a red flag for future homicide or serious injury; and codifies what is already recognised in sentencing guidelines and judicial rulings as a dangerous tactic of family violence.

I want to briefly pick up on a comment made by Ms Haddad. We too in the Greens' office have heard from a number of survivors of domestic and family violence and sexual assault. It is true to say that depending on where they live and which Tasmania Police station or officer they first report to, it can very much affect their capacity to be safe and to secure justice. I know of one young woman who lived in regional Tasmania in the south of the state who was subject to repeated acts of violence and sexual assault. There were threats to her and threats to her children. She would report it to the local Tasmania Police officer. To be fair, this is going back seven or eight years. She was basically told, when she had been in for the third time, that she was a trouble maker and she was probably inflaming things at home with her violent partner. She just did not feel heard. By the time I was having this conversation with her, that awareness that she could not go to Tasmania Police in her community to be safe, and make sure her children were safe traumatised her to the extent that she lost all trust in the institutions of government. As it turned out, so serious was her ex partner's violent offending, that he has done a stint in Risdon Prison as a result. She was right to be scared. She was at risk of her life, and her children's lives, and she was not heard when she looked for help.

I acknowledge the outstanding community organisations that so often are there to provide that safe harbour for these women and their children. In this instance it was the Hobart Women's Shelter which provided this really impressive young mum that sense of security and capacity to start to trust again.

There does need to be ongoing work with Tasmania Police to educate new and long standing officers. You can teach old dogs new tricks about changes to the law, the importance of listening to victims who come forward, and the importance of responding to any person who comes forward and says, my partner is repeatedly violent with me; my partner tried to strangle me last night, and the like. That work, that I know Commissioner Darren Hine does take very seriously, must continue - because, in my professional experience in dealing with some constituents, the response to women who come forward seeking intervention and safety can still be patchy and variable.

The Scarlet Alliance of Tasmania also supports the inclusion of a separate crime of strangulation, and has this to say on the second amendment:

Scarlet Alliance welcomes the introduction of a stealthing provision into the Criminal Code Act of 1924. We support the clarification provided by Section 2(a)Sub Section (a) to (c), however we are concerned about the wording of 'if the person says or does anything to communicate to the other person that the condom must be used'. This appears to place the onus of communication on the person being stealthed, rather than on the person committing the stealthing.

Perhaps the Attorney General could respond to that concern by the Scarlett Alliance, and there was a suggestion that the amendment bill be further amended to provide more clarity. The provisions that have been inserted - (2A) - there appears to have been some adjustment, and I ask the minister to clarify whether this is in response to the concern raised by the Scarlet Alliance. The amendment bill states:

[OK]

(2A) Without limiting the application of subsection (2) to an act of sexual intercourse, a person does not freely agree to an act of sexual intercourse with another person if the person says or does anything to communicate to the other person that a condom must be used for that sexual intercourse and the other person intentionally -

(a) does not use a condom; or

(b) tampers with the condom; or

(c) removes the condom -

before or during the sexual intercourse.

The Scarlet Alliance also requests that law enforcement, social services, and legal services receive training about how to best support the sex workers who are reporting sexual violence. Perhaps the Attorney-General could address those questions that have arisen out of the Scarlet Alliance submission. All of these submissions came in during February this year in response to the draft bill, and I feel that the Attorney-General has accommodated a number of the recommendations and some of the feedback. However, perhaps she could talk through that process and how concerns raised by key stakeholders in this area were incorporated.

Engender Equality, that outstanding Tasmanian organisation, has strongly recommended the introduction of the Criminal Code amendments be accompanied by training for all relevant personnel within the Department of Justice, to ensure it is equal and consistent in its application across Tasmania.

The Tasmanian Community Legal Centre, again, strongly supports the reforms that parliament will undoubtedly pass today, and on the issue of non-fatal strangulation says:

International research has found that non-fatal strangulation is a relatively common form of abuse among women who experience intimate partner violence, with studies finding that around 10 per cent of women who experience intimate partner violence have also experienced non-fatal strangulation.

For example, in a study of 656 protection order applications submitted to a Queensland court between 28 and 10, the authors found that 12 per cent of women who applied for a protection order alleged an incident of non-fatal strangulation in their application. Non-fatal strangulation is associated with many forms of non-fatal injury, including difficulty swallowing, bruising, miscarriage, and voice changes, and in more serious cases can cause oxygen deficiency, which may lead to a brain injury.

And in conclusion from this submission:

The research demonstrates the inherent danger of strangulation and its potential for significant harm. Strangulation may be fatal, causing unconsciousness within seconds and death within minutes. Tragically, survivors of non-fatal strangulation are over seven times more likely to be a murder victim or victim of serious injury in the future, with the Australian Institute of Criminology recently reporting that around 9 per cent of family homicide deaths of women in Australia are caused by strangulation and/or suffocation.

The Community Legal Centres also, of course, support the bill's intention to amend the definition of consent in relation to stealthing.

The outstanding Sexual Assault Support Service of Tasmania strongly supports this reform, and summarises the potential physical and psychological impacts of non-fatal strangulation as:

Immediate physical impacts can include loss of consciousness, strokes, seizures, and incontinence, other physical impacts can include neck pain, bruising and swelling, burst blood vessels in the eyes and under the skin, difficulty breathing and swallowing, and changes to the voice. Ongoing psychological impacts can include post-traumatic stress disorder, fear, anxiety, depression, memory loss, nightmares, and dizziness.

Again, the Sexual Assault Support Service calls for clear messaging, education to Tasmanians that non-fatal strangulation is harmful and unlawful. Although, we are talking about two discrete amendments here, they are connected. When you live in a society that has such structural gender inequality, a society where we have not yet been able to educate all boys and men about respectful relationships, the inherent right of women and girls to live their lives in safety, where we have not yet been able to fully educate boys and men about the true meaning of consent, then you have a culture where family violence, sexual assault, rape are enabled.

We live in an unequal society and I am not sure it is getting better. That is a real worry to women and girls and good men and policymakers everywhere. While there have been some strides forward for equality, there is still a woman being murdered every week or so in this country at the hands of a man. I still overhear conversations between young men in the mall which are demeaning towards women and girls.

There are very significant cultural challenges here. It is not helped by having people leading this country who clearly do not get it or do not care enough to try to get it. That goes straight to the top because we have had one reported rape in Parliament House in the past two years. We have clear deficiencies on the part of the Prime Minister and his Cabinet to take seriously the need for legal change, for investment in education, to reverse the funding cuts to organisations that pick up the human pieces, who are working at the frontline of family violence. You are not going to have the cultural change at the grassroots of society to the extent that it needs to be if at the top of the tree you have a Prime Minister who was untruthful in the Australian Parliament about what he knew and when about the rape of Brittany Higgins.

These amendments most certainly are connected. They are connected by a culture in this country which remains in too many places toxic to the wellbeing of women and girls.

The Tasmanian Aboriginal Legal Service in its submission agrees that a strong and clear -

Time expired.