10 November 2020
Ms TRISH DOYLE (Blue Mountains) (12:17:35): On behalf of the Opposition I speak to the Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020. In the main the Opposition supports the bill. I note that it proposes to amend the Crimes (Domestic and Personal Violence) Act 2007 and the Criminal Procedure Act 1986. The bill contains several amendments which go some way towards addressing some of the concerns of those who work in this sector and those who are victim-survivors of domestic violence [DV], as well as the expectation of communities that we strengthen our laws around the prevention of domestic and family violence.
Many of the proposals in the list of amendments appear to be justified. I will run through some of those quickly. The bill proposes to include "harm to an animal" in particular circumstances as part of the meaning of "intimidation" and to include that as part of the definition of domestic violence. The bill also contains an amendment to look at the situations in which our police force and our police officers issue provisional apprehended domestic violence orders, also known as ADVOs. The bill proposes to allow for certain ADVOs to continue for up to two years after a term of imprisonment is completed or for another period that the court specifies to acknowledge a need that has not been addressed in our laws, which for some years many of those in the sector have been calling for.
The bill will allow for a court, in the interests of justice, to grant leave to vary or revoke an indefinite ADVO. It will make clear that an ADVO prohibiting the destruction of property also includes the prohibiting of the harming of animals. This particular prohibition has been the subject of much discussion in the media and the domestic violence sector of late, and it is a good proposed amendment. The bill also provides that a judge can advise a jury in domestic violence cases when there is an absence or delay in making a complaint in order to provide context around why survivors of domestic violence often delay due to the nature of the emotional response in those situations. In the main, I support the primary intentions of the bill to increase the safety of victims and improve responses from police and the courts. I acknowledge that there has been a substantial cultural shift in this space over the past couple of decades, but we still need to go further.
I also acknowledge that the bill strengthens provisions around damage to property by extending the definition of an apprehended violence order in the Crimes (Domestic and Personal Violence) Act 2007 relating to the destruction of or damage to property of a protected person, which is taken to be specified in every order to include the harming of an animal. The introduction of provisions regarding harm or threats of harm to animals acknowledges the role that animal cruelty can play in intimidating victims to exercise control over their lives and the lives of their children. At its core, this bill—and others that deal with the prevention of domestic violence—includes the protection of children and animals on ADVO applications. These orders provide a critical form of civil protection for children impacted by domestic violence and should also be extended to pets, which are often part of the family.
In its position paper entitled Police Domestic and Family Violence Policy and Practice published on 7 November 2020, Women's Safety NSW noted that when we regard provisions within law in relation to a defendant's contact with their children, we should always be reminded that a parent's right to have contact with a child should not override that child's safety. That protection should also extend to animals, which are also part of the family. We see in the statistics and in the anecdotal evidence that there is an inconsistency in police responses to children's safety, and that is an ongoing issue that must be addressed. Given the role that animal cruelty plays in intimidating victims to exercise control over their lives and the lives of their children, it is good to see that this bill extends the meaning of "intimidation" as defined in the Crimes (Domestic and Personal Violence) Act 2007 to include "harm to an animal in particular circumstances".
Domestic violence reforms must always reflect the nature of domestic violence dynamics. As many members know from cases in their electorates, domestic violence may span years or decades of a relationship. Physical and sexual abuse are extremely harmful and can be life threatening. Emotional and verbal abuse and other forms of coercive control can be equally devastating. Often they are invisible and are almost always part of the cycle of abuse. Protection should extend to all victims who seek protection and safety from domestic violence, including those requiring an ADVO, and should not be limited to victims of a domestic violence offence.
I have consulted the specialist domestic violence sector and I share the sector's concerns about some of the bill's provisions and its call for the strengthening of provisions in some areas and for the implicit incorporation of trauma‑informed principles that are victim‑survivor focused. In his second reading speech the Attorney General, and Minister for the Prevention of Domestic Violence said that the bill and its amendment components were part of government's regular legislative review and monitoring program. I hope members engage in a healthy, robust debate about strengthening some of the bill's provisions so that it goes some way towards what is required to protect women, children and families who experience domestic violence. The bill does not go all the way.
Recently the Government issued a discussion paper on coercive control that makes a number of suggestions for better rules and enforcement of apprehended domestic violence orders. Many of the proposals in that paper go beyond the scope of the bill. When it considers that paper and the views of the community, the joint select committee and this House should go a step further and strengthen a number of provisions that are not currently within the scope of the bill. I will go through some of the Opposition's proposed amendments. I acknowledge the good and tough work done in the specialist domestic violence sector in dealing with a number of very difficult issues in that space. I seek the Minister's response to the concerns raised by each of the Opposition's amendments.
The first concern relates to open court and court closures. The bill provides that certain parts of domestic violence proceedings in which a complainant gives evidence must be held in closed court unless a court directs otherwise. The only exception to the entitlement of a domestic violence complainant giving evidence in closed court is if a complainant chooses to waive that entitlement. Open courts should never be on the basis of the election of the defendant. I would like the Minister to respond to that point. The second concern relates to access to audiovisual links and other alternative arrangements. That must be the entitlement of the victim.
The Opposition proposes that the bill be amended to provide domestic violence complainants with the entitlement to give evidence using alternative arrangements or by alternative means, including audiovisual link in certain domestic violence proceedings. Many courts do not have the resources to allow that to happen. Legislation must be accompanied by adequate funding, adequate technical resources and training to ensure that courts can comply with that requirement and make it a legitimate option. Instead of video link being the exception, the legislation should make it the standard and the norm. The domestic violence sector's view is that only the complainant should be able to waive the entitlement to give evidence by alternative means. The sector also points out that there must be statutory review provisions for monitoring access, data collection and evaluation. Questions need to be asked, including: How many times is audiovisual link requested? How many times is it granted? What is granted, audiovisual link or screens? That information needs to be collected.
The Women's Legal Service NSW, Women's Safety NSW, Domestic Violence NSW and Rape and Domestic Violence Services Australia have all provided good feedback regarding the protection of witnesses. The protections must be extended to relevant witnesses appearing in domestic violence offence proceedings, apprehended violence order proceedings and prescribed sexual offence proceedings. Extending this provision to all apprehended domestic violence proceedings, not just those related to a domestic violence offence, as well as to associates of domestic violence complaints or complainants in prescribed sexual offences must be considered.
In relation to the amendment regarding judges' warnings, changes to the warnings given by judges that better reflect the dynamics of domestic violence and its impact on victims are incorporated in this component of the bill to amend the Criminal Procedure Act 1986 to provide for a warning that may be given by a judge in relation to domestic violence offences. Schedule 2  and  provide that in a trial of a person for a domestic violence offence, if evidence is given or a question is asked of a witness that tends to suggest the absence of or the delay in making a complaint about a domestic violence offence, the judge is to give a warning about that delay or absence. A judge must not warn the jury that the delay is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning. The warning may be combined, or given twice, if both a domestic violence offence and a prescribed sexual offence are alleged to have been committed by the person against the complainant.
This is an important part of the bill. There needs to be a context included in the training of those in the criminal justice system and police who respond to domestic violence offences. In order for the schedule to make sense there must be investment in resources for training. Some of the changes in these Acts eliminate current ambiguities, allow for clearer police powers and strengthen protections for victims. By way of example, schedule 1  provides that a prohibition or restriction specified in a provisional order must not decrease the protection afforded to the protected person. If a prohibition or restriction decreases the protection, the prohibition or restriction is of no effect.
I turn to changes to and clarification of the definition of police initiated apprehended domestic violence orders. A police initiated order means a final apprehended violence order or an interim court order where the application for that order was made by a police officer or a police officer was a party to the application proceedings for the order. Our police are on the front line when they respond to domestic violence offences. It is critical to acknowledge that we must enable our police through training and resources to respond to the many complexities that they might find in a domestic violence offence and the process thereafter through the justice system. I hear many stories, and I am sure other members do. We tear our hair out when the police respond to a family and get caught up in hurdles in the court system, or there is complete inconsistency in their response.
We must enable our police to respond which requires training and accountability mechanisms to be put in place. There must be comprehensive training for police in domestic and family violence issues. Accountability mechanisms must be put in place for police practices. I like to point out to many of the domestic violence committees in regional areas with whom I meet that, when those who work in this space are completely caught up in the angst, frustrations and hurdles within a system, there has been a cultural shift in police responses. When I hear that repeated to me time and again I often relay my experience as a little girl of the difference when police receive training and respond with a compassionate heart and when they do not. The police would turn up to my home and say to a very violent and drunken father that they would take him to the pub for a couple of drinks "until she and the kids calmed down".
That is not an appropriate response and our parliaments, laws and police now recognise that that was not an appropriate response. It is good to see that that attitude has shifted and there are more appropriate responses from some of the domestic violence liaison officers with whom I work. But the sector says that we need to go further. I move now to the calls from some in the special domestic violence sector and other stakeholders for additional reforms to increase the safe participation of domestic violence complainants in court proceedings. Rape & Domestic Violence Services Australia and its CEO Karen Willis have said:
We welcome the provision for closed courts in proceedings for domestic violence offences in proposed s.289U, but this should be extended to stand-alone ADVO proceedings.
They go on to note:
We also welcome the presumption for complainants in proceedings for domestic violence offences to give evidence via alternative means and arrangements in proposed s.289V, but maintain that this option should be a right (rather than a rebuttable presumption), not only for complainants in domestic violence offences, but also for complainants in sexual offence proceedings …
I note that direct feedback for the benefit ofHansard and for the Minister's response. The domestic violence sector and other stakeholders have requested consideration of provisions applying to all victims of domestic violence, not just those related to an offence, and cross‑examination provisions. They question direct cross‑examination of DV complainants in offence proceedings and AVO proceedings, which must be investigated further. There are calls for cross‑examination provisions to be prohibited, a matter my learned colleague the member for Liverpool will no doubt speak on; for closed court provisions to apply to ADVO applications; and for a strengthening of jury directions. The sector also asked for a review of court arrangements and practical adherence to trauma‑informed practice through the implementation of designated DV and ADVO list dates, regardless of whether the defendant is represented or in attendance.
The sector also asks that comprehensive and ongoing risk assessment and safety planning before, during and after court proceedings include consideration of very practical needs: for example, how a domestic violence victim‑survivor travels safely to and from court and whether they need child care. Further, I note that in some of the feedback, a review of court facilities to address safety issues—how domestic violence victims enter and leave the court and the provision of safe‑room facilities—was also of concern. Rather than the complainant giving evidence remotely, they could give evidence in another venue and attend court.
We would like to see a substantial increase in funding for the Women's Domestic Violence Court Advocacy Services to provide support to domestic violence complainants during hearings. All workers in the criminal justice system—including police, legal practitioners, the judiciary, support workers, court officers and interpreters— need increased specialisation for and ongoing training in sexual, domestic and family violence informed and trauma‑informed practice about cultural safety, disability awareness and LGBTIQ awareness. I note the Minister's comment that the amendments support procedural improvements and aim to close gaps in the law. Domestic violence, he says—and it is true—is a complex crime because of the very personal, intimate relationship between perpetrators and victims. Cases are never clear-cut or black and white. I acknowledge the Minister's comment that reforms within the bill seek to ease a burden that many who work in the sector feel has existed for too long. There are important provisions here.
I finish by noting feedback from Women's Safety NSW that good steps are being taken in this bill. Measures are proposed for safer courts for domestic violence victims and for the proceedings around approaching court, experience within the court and beyond, but more is needed. The sector welcomed the reforms but noted that more is needed. It said quite clearly that missing from the package is the ending of direct cross‑examination of domestic violence complainants by their abuser, and that there needs to be increased specialisation of magistrates to hear domestic violence matters. More importantly, substantial announcements have been made—and not just in court—about funding for domestic violence prevention and for the response to domestic and family violence, but it is not enough. It only addresses the tip of the iceberg.
We need frontline services—and I call it the "front line", with that association with war, because it often does feel like that for workers and for victim‑survivors—to have access to money for caseworkers, whether they are soft entry points like neighbourhood centres, family support services or domestic violence refuges that have a feminist, specialist domestic violence framework. We know that the process is complicated, intricate and prolonged, and there are many hurdles. Women's Safety NSW has released a report, which was based on comprehensive feedback from members and survivors, on safer policing and safer courts. Even though we seem to have lost the momentum with prosecuting change in the space, I will finish with a comment by Hayley Foster, CEO of Women's Safety NSW in that report:
The reality is, we are facing a national crisis of violence against women in this country … We need to act with urgency to put [in place the] measures we know will increase women's safety.
The cost of delaying these reforms is too high. I ask the Minister to respond to each of the concerns raised by the sector in his reply. I thank all the peak organisations and services that work for and with them to improve safety and the lives of victim‑survivors. I note again Domestic Violence NSW and Delia Donovan, Women's Safety NSW and Hayley Foster, Rape & Domestic Violence Services Australia's Karen Willis and her team, and all of those who work in services across each of our electorates. I hope that some of these proposed amendments today and the implementation of them from here on actually will make a difference to many lives—and, in fact, save lives.