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| Madam Speaker, I move that the bill be now read a second time. The bill before the House today is the culmination of over a year of intensive consultation and legislative and policy development. It is legislation intended to tackle the serious and difficult issue of domestic violence head on. Many elements to this bill, Madam Speaker, some have come about as a result of the extensive stakeholder consultation, while others reflect best practice in the area in Australia and overseas. Some provisions were developed specifically in response to the issues raised and recommendations made in the Little Children are Sacred Report. The government has taken some tough decisions in the development of the bill to protect women and protect children. We thank those who have taken the time to contribute to the development of the bill through submission and comment. It is an unacceptable tragedy that lives have been ruined and lost in the Territory as a result of domestic and family violence. These reforms will provide for protection of people experiencing violence in their relationships to rebuild their and their families’ lives. These reforms mark an important step in bringing about genuine change in community attitudes and behaviour which I hope will make a difference to many families who live under the threat of violence. I will now outline the major features of the bill. First, Madam Speaker, the title of the bill differs from that of the act it is replacing, renaming the relevant legislation the Domestic and Family Violence Act serves to indicate the breadth of relationships that will be covered by the new act. Violence in intimate relationships can range over all sorts of different relationships in the family, and in the home, and is not limited to physical violence against women. The change of title acknowledges the impact of violence on children and others in the family. We have included objects in the bill that do not appear in the current act to convey to the community the goals, values and principles we are able to achieve through the enactment of this legislation. The primary objective of the bill is to ensure the safety of all people, including children, who experience domestic and family violence, and the second objective, to ensure that those who commit violence in their relationships must accept responsibility for their behaviour. The objects will assist practitioners and the court to interpret and apply the legislation. The bill also expands the range of people now able to seek protection by seeking an order. The bill provides that proceedings for a Domestic Violence Order can be instituted on behalf of a child by a relative or other responsible adult. Young people between 15 and 18 will also be able to institute proceedings on their own behalf with the leave of the court. Reform will address what has been uncertainty in relation to minors under the current act. In cases where a police officer or child protection officer reasonably believes that a child has been exposed to domestic violence and is likely to be adversely affected, the officer must apply for an order. This measure will ensure that protection is provided as a matter duty and other protections available under the Domestic Violence Act. It is widely recognised that the impact on the social and educational development of children who experience violence, or who are exposed to violence towards family members can be long lasting. We also know that, to some extent, domestic violence is associated with the incidence of child abuse, and there is a direct relationship between domestic violence and child health. These reforms will ensure that children enjoy the same protections from family violence as are available to adults. They aim to ensure that the long-term development of children who find themselves in this situation are not damaged by the experience or exposure to violence at a young age. This initiative is consistent with developments in domestic violence legislation in other states and territories, as well as being consistent with the principle of the best interests of the child contained in the Convention on the Rights of the Child. Unfortunately, young people can also be the aggressors in violent family relationships. In recognition of this, orders can now be sought and made against a young person between the ages of 15 and 18. These orders will operate in the same way as orders against adults, with the court imposing both restraints and positive obligations such as attendance at an appropriate rehabilitation program where the young person agrees to this obligation. In addition to children, others in relationships that do not currently come within the scope of the Domestic Violence Act will be able to seek protection under the new act. People who are betrothed, engaged or in a dating relationship, or in a carers relationship, are also covered by the bill. We have included these people in relationships in the bill because the same controlling behaviours that characterise domestic violence can also be experienced by people not married or living together. This category is drafted to specifically include promised wives to ensure they are not intimidated or harassed into having a sexual relationship with their betrothed before the age of 16, without the young woman’s consent. The bill will also simplify processes regarding domestic violence orders. There will be two general types of orders that can be sought and made – court orders and police orders. Court orders are made by the usual process; that is, by a standard application to the court by an applicant to be now known as a protected person, or a police officer on their behalf. Police orders are those made by an authorised police officer in urgent circumstances where it is not practicable to obtain a court order, but where an order is necessary to ensure the safety of the victim. Police orders are generally made in remote and regional areas. The introduction of police orders as an alternative to telephone orders made by a magistrate was an amendment the government made to the Domestic Violence Act in 2005. Police orders have worked well and been taken up by police as a matter of priority in their on-the-ground work. Effective policing is essential to the success of any domestic and family violence regime. Their support in the development and, in the future, their application of the new regime is vital, and I am sure it is appreciated by all here as well as the community at large. Magistrates orders made over the phone by a magistrate will be abolished under the new bill as both police and magistrates advised that they have been made redundant with the introduction of police orders. The definition of police orders is broadened by the bill so that it is clear that officers can issue a police order to ensure the safety of a victim. The threat to the victim does not need to be immediate as it was previously. Defendants, the subject of police orders, and protected persons, will have the right to request a review of a police order to a magistrate. To address a current procedural anomaly, the bill will introduce a system by which term ‘terms of an old order’ will continue to apply to a defendant unless and until they are served with the new or varied order. It is a gap that exists under the current act. The bill continues to make provision for consent orders where parties choose to have an order in place to manage the nature of their relationship. The bill introduces a new order that can be made in criminal proceedings regardless of whether the proceedings take place in the magistrates or the Supreme Court. Where a person pleads guilty to, or is found guilty of, an offence such as stalking or intimidation with the intent to cause fear of harm, or where a domestic violence offence was committed, the court can make a domestic violence order in additional to any sentence imposed. The order will operate in the same way as any other domestic violence order, and can be imposed on application by parties or on the court’s own initiative. The order will continue, independent of the sentence imposed for the offence. The bill also reflects careful consideration regarding the grounds for obtaining an order. During consultation, there was some support for a model that focused on the fear actually experienced by the victim. The Law Society, for example, raised concerns that the person in a domestic relationship could, in fact, hold fear for their safety. These views have been carefully considered. Following discussion with police, and in light of the aims of the reform, a model has been drafted that allows the court to make an order without reasonable grounds for the protected person to fear the commission of domestic violence. The test is simple, objective, and will work as easily for applicants who seek an order on their own behalf as it will for police where they seek an order on behalf of a victim. In one of the key aspects of the bill, domestic violence is defined by reference to a set of behaviours not currently covered by the existing act such as economic abuse, sexual assault, stalking, intimidation, coercion, damage to animals, and acts which, if repeated, indicate a continuing pattern of abuse. These are in addition to the commonly known domestic violence behaviours such as assault, threats and damage to property. The inclusion of economic abuse and intimidation in the definition of domestic violence recognises that socially isolating the victim from their normal channels of support and economically depriving is abusive behaviour that is about shaming and undermining the victim’s capacity to take independent action. Economic abuse will cover commonly known situations police encounter in their duties such as women who are subjected standover tactics so that they are forced to give over money or key cards to other members of their family for alcohol, ganga or other purposes. Women who are excluded from the family home or savings when their husbands change the locks or close bank accounts will also be able to see protection under the bill. Other examples could include clothes being burned, hair cut off, threats of black magic that may give rise to an application and granting of a domestic violence order. Another major reform in the bill is the adoption of vulnerable witness provisions in domestic violence proceedings. Under the amendment the public, the applicant and some witnesses may be able to give their evidence at a place outside the court, or utilise a screen or partition in the courtroom to protect them from the view of the defendant whilst they are giving evidence. Victims in court are often overwhelmed by appearing in court and potentially having to deal with the intimidating stare of their partner or husband. These measures will ensure that applicants will be protected from intimidation during proceedings. In addition, in proceedings in an order where children are the applicants their evidence will be submitted in a written or recorded statement and the child does not need to appear at the proceedings. Children also cannot be cross-examined. This is consistent with provisions in the Justices Act in proceedings for sexual offences involving children and will further encourage the use of domestic violence orders. However, young people will not be precluded from cross-examination during the proceedings in which they are alleged to have breached a domestic violence order in place against them. Under the bill it will be an offence to publish the name of a child who appears as an applicant or witness in a proceeding, or any information likely to lead to the identification of the child, except where the name is placed in an official report of the proceedings, or the court consents to the publication of the name. Likewise, where the court orders that a person’s personal details be prohibited from publication, any publication of those details constitutes an offence. Another central objective of the legislation is to ensure minimal disruption to the lives of families affected by violence. There will be a new presumption when making orders in favour of an applicant with children in their care remaining in the family home. This will be achieved by the grant of a premises order requiring the defendant to vacate the family home in appropriate cases. This may initially appear harsh but government has made the deliberate decision that women should no longer be forced to flee the family home with their children and seek crisis accommodation elsewhere in another suburb, town or city, away from family and friends while the perpetrator remains in the home. The disadvantage experienced by women and children in such situations is often exacerbated by the cost of living and lack of study income. Children in particular suffer as routines change, the child has to cope with fitting in a new environment and new schooling. We recognise the detrimental impact this has on children and will attempt, through this bill, to minimise it. In cases where a relationship between two people has broken down altogether and there is little prospect of them living together without continuing violence, and the home is rented, the court will be able to make an order terminating the existing lease and create a new lease for the benefit of the protected person. The government recognises that this is a big policy step so have introduced the following safeguards: To prevent any abuse of this mechanism: the landlord will have a right to be heard before an order is made. The original expiry date for the terminated lease will not be extended by the order. The landlord can refuse the making of an order as long as the court is satisfied that refusable is reasonable, and the provisions of the Residential Tenancies Act in respect to condition reports on the property and the return of bond monies will apply to tenancy agreements terminated by this profess. Finally, the power to terminate a tenancy agreement will not be exercised unless the court is satisfied that the protected person can comply with the terms of the replacement Tenancy Agreement and, of course, consents to the order. These orders will not be made often, but they will allow victims who live in rented accommodation to remain in their home, free from further violence. In addition to the court’s ability to make orders restraining the behaviour of the defendant, the bill also compels perpetrators of domestic and family violence to accept responsibility for their behaviour. This will be achieved by imposing positive obligations on them, including an obligation to undertake rehabilitation. This kind of order can only be made with the consent of the defendant and is conditional on an assessment of the availability and suitability of an appropriate program that addresses the defendant’s behaviour. The mechanism will operate either on application or on the court’s own motion. While agreeing to attend a rehabilitation program requires consent, a failure to attend the program will constitute a breach of the order. This provision is intended to bring about attitudinal change with the defendant learning new ways to deal with anger, manage alcohol intake or rethink the impact of their behaviour on their family relationships. It is also designed to encourage people to develop problem solving and communication skills that can be put into use in personal relationships. The bill requires the court to explain the nature and affect of the terms of any order, including details of any restraints or obligations to a defendant and the protected person if that person is in the court. The court will also be required to explain that the order can be registered and enforced in other states and territories and in New Zealand, what will happen if the terms of the order are breached and how the order can be varied or revoked. Given that a breach of an order carries criminal consequences, including imprisonment for the defendant, we have decided to include these obligations on the court as part of a preventative strategy to avoid breaches of orders based on simple and genuine misunderstandings of their terms. During the review of the Domestic Violence Act, many stakeholders raised concerns that the provisions dealing with variations and revocations of existing orders were being used by defendants as a means to seek a de facto appeal or a review of a magistrate’s decision. We were advised that as a consequence of this, many victims were living in anxiety and uncertainty about whether they would be called to court to respond to an application by the defendant and whether the order would be changed. Madam Speaker, under these reforms the situation will change. It will be harder for defendants to obtain a variation or revocation of an existing order, with such orders only being made where there has been a substantial change in circumstances. A change of circumstances might include changes regarding the child care arrangements of children of the relationship or the satisfactory completion of a rehabilitation program. Domestic Violence Orders will continue to be enforced by criminal sanctions. A breach of a court order will now attract a maximum penalty of two years imprisonment, which replaces six months under the current act. This penalty has been increased as it was the government’s view that six months was manifestly inadequate given the adverse impact that this kind of violence has on family members and on the community. Two years is also broadly consistent with other serious offences of violence, such as threatening to cause injury of assault. A breach of an order is a strict liability offence which means that no fault element needs to be proved and the defence of mistake of fact will be available. The bill makes some changes to the sentencing regime. The bill does not introduce mandatory sentencing, as has been claimed. Mandatory sentencing already exists under the act. What this bill will do is make the operation of mandatory provisions fairer. Under the new legislation, the court must record a conviction and impose a sentence of imprisonment of at least seven days for a second or subsequent offence where harm results to the protected person. In circumstances where the breach of the order does not in fact result in harm, the court will have discretion not to impose a mandatory sentence if the court is of the opinion that in the circumstances of the offence it is not appropriate to do so. The amendment sends a strong consistent message to perpetrators in the wider community that domestic and family violence will not be tolerated and that a breach of an order is a serious offence and it will be regarded as such by the sentencing court. In circumstances where there has been a technical breach of an order that resulted in no harm to the victim, the court will maintain its discretion, however, and the potential injustice that arises from the current mandatory sentencing system will be avoided. This change will encourage victims to report breaches when they occur. It may also encourage defendants to consent to orders as they will more likely not fear the inflexibility of the previous sentencing regime. This would in turn reduce the need for victims to give evidence to obtain orders and reduce the number of court hearings saving court time and resources. Change should be favourably received by the criminal justice system and the judiciary. The same sentencing provision will apply to young people between the ages of 15 and 18 where they breach an order. Again, the court will have discretion where harm does not result from the breach and, in sentencing young people, the court can take into account the age of the person as well as the circumstances of the case. For the registration of interstate orders, we have introduced a small provision that will allow interstate orders to be registered and have effect in the Territory. This will remove the need for persons living in border areas to actually go to court in the Northern Territory to give effect to orders that are already in place elsewhere. Madam Speaker, as I have detailed at length, the government has not made a final decision regarding mandatory reporting of domestic violence. Further work and consideration will be undertaken and a decision made in the new year. The reforms outlined in this bill could not wait, and so they go ahead independent of that outstanding question. These reforms are required immediately. We could not leave them on the shelf while we worked through the complex issues that mandatory reporting raises. On this point, I wish to bring the members’ attention to the provision dealing with health practitioners who do report suspicion to police. Under this bill, these practitioners will be protected from any civil or criminal liability in relation to such a report. The duty of confidentiality is not absolute. Health practitioners may feel compelled to report serious incidences of domestic violence if they believe that there is a serious risk of domestic violence to the patient or another person. They may do so where they believe a report is necessary to act in the best interests of their patient. We recognise that health practitioners do not take these things lightly. Many health practitioners consider it a breach of their ethical obligations to their patient. Nevertheless, disclosure of information concerning their patient’s experience of domestic violence in these circumstances is not inconsistent with the doctor’s ethical obligation according to the Australian Medical Association, and government must provide legal protection for health professionals who determine they must provide information to the police. The bill does contain amendments to other pieces of legislation, including the Justices Act. Amendments to this act will allow those who experience violence in a relationship but do not live with the perpetrator to seek a new type of civil remedy called a Personal Violence Restraining Order. The primary purpose of this order will be to secure the safety of the victim, with the grounds for the order being a finding on the balance of probabilities that the defendant committed a personal violence offence that caused harm to the victim as defined in the Criminal Code. These provisions replace section 99 of the Justices Act, which stakeholders explained during consultation were inadequate to the task and provided limited protection of victims because they were not enforceable by police. This new mechanism will allow the Magistrates Court to refer a matter to compulsory mediation before the court is required to determine an application, unless the matter is of such a significant nature that the court is obliged to hear the matter immediately. The amendment will also allow police to make an application on behalf of children in circumstances where, for example, they believe a child has been or is being sexually assaulted by a perpetrator who is not in a domestic relationship with that child. Police will be able to act immediately to protect that child while they complete their investigation. In these circumstances, it will be a useful complementary measure to criminal proceedings. Madam Speaker, in closing, the legislation will be a strong tool to protect victims of domestic violence from further abuse. We have deliberately shifted the presumption in favour of protecting the rights of those often powerless parties who are experiencing violence. The government also realises that to achieve long term sustainable and intergenerational change, we have to look at changing the behaviour of those perpetrating the violence. This bill achieves both fundamental goals. I commend the bill to honourable members, and I table a copy of the explanatory statement. |