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Family Violence Reforms Bill 2018

Cassy O'Connor MP  -  Tuesday, 16 October 2018

Tags: Family Violence, Elder Abuse, Legislation

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.