Page 2322 - Week 07 - Wednesday, 3 August 2022
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Victim-survivors have expressed concerns that cross-examination is a daunting experience and possibly represents a form of institutional abuse, which is not conducive to healing. Where victim-survivors are faced with the prospect of cross-examination on their victim impact statement, they are less likely to proceed with preparing one. As a result, they are left with no voice in the criminal proceedings to express how the offending has impacted them. This reform will provide protections to victims of all types of crime and will reflect that the primary purpose of a victim impact statement is to assist the court in the sentencing process.
Furthermore, the bill amends division 4.4.3 of the Evidence (Miscellaneous Provisions) Act, which sets out special requirements for the protection of counselling communications in sexual offence proceedings. The amendments extend these existing protections to apply to family violence offence proceedings, in addition to sexual offence proceedings. A counselling communication made by, to or about a person against whom a family violence offence was, or is alleged to have been, committed will be considered to be a protected confidence.
A protected confidence must not be disclosed in, or for the purposes of, a preliminary proceeding and must not be disclosed in a criminal or civil proceeding unless the court grants leave for the disclosure. The court must refuse leave if not satisfied that there is a legitimate forensic purpose. If the court is satisfied that there is a legitimate forensic purpose, the court must then consider whether it is satisfied that the public interest in fairness outweighs the public interest in preserving the confidentiality of the protected confidence.
The reform in this bill to extend these protections will promote access to justice for victim-survivors of domestic and family violence. Stakeholders have highlighted that counselling sessions are a therapeutic process, and to allow these sessions to also be an evidence-gathering process deters victim-survivors from seeking professional support and limits their ability to talk freely and honestly with their counsellor.
This bill also amends section 8(2) of the Family Violence Act to provide that the definition of family violence includes the harmful use of, or interference with, technology. Technology-facilitated abuse has emerged as a common form of domestic and family violence that can occur while a relationship is ongoing but that also frequently occurs after a relationship has ended, as a method of maintaining control despite physical distance.
Technology-facilitated abuse can involve a range of controlling and coercive behaviours such as the non-consensual distribution of intimate images, threatening phone calls or messages, harassment on social media sites and location tracking. The reform highlights that this type of behaviour has a serious impact on victim-survivors and must be treated as seriously as other types of violence, such as physical or sexual abuse.
The amendment will allow the court to make a family violence order where it is satisfied that the affected person has reasonable grounds to fear family violence involving technology-facilitated abuse or the respondent has used family violence that involved technology-facilitated abuse. The court may also include a condition in a family violence order that the respondent not engage in any form of family violence,
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