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Legislative Assembly for the ACT: 1997 Week 7 Hansard (25 June) . . Page.. 2035 ..

MS TUCKER (continuing):

Moving from 12 months to two years as a standard time for a protection order is an important move. Although no fixed time will be appropriate in all cases, the ACT does currently have the most limited protection in this regard, aside from Victoria. A central problem with the current 12-month limit is that the risk to the victim may be ongoing, and the 12-month limit can often be stressful for the protected person. One of the examples given by the Community Law Reform Committee is the fact that most orders are made after separation of the parties, and where the parties are married they are eligible to apply for a divorce after 12 months' separation. With the current 12-month limit, this may coincide with the end of the protection order.

Mr Speaker, the second set of amendments are in relation to the making of protection orders and are in clause 5 of the Bill, which amends section 4 of the Domestic Violence Act. One of the important objectives of the Community Law Reform Committee report was to ensure consistency between the Magistrates Court Act, which includes a protective regime for people in non-domestic situations, and the Domestic Violence Act, which covers protection in domestic situations. Currently, the legislation is more restrictive in the Domestic Violence Act than in the Magistrates Court Act, which means in practice that it is more difficult to obtain protection under the Domestic Violence Act than under the Magistrates Court Act.

Currently, under section 4, the court can grant a protection order if they are satisfied on the balance of probabilities that the applicant has demonstrated a number of factors. These factors include that the respondent is likely to engage in further domestic violence and that the conduct is such that the applicant "fears for their safety". The Greens' amendments aim to strike these requirements out. As the legislation stands, it is not enough that someone has acted inappropriately or even offensively toward another. The applicant has to demonstrate that further domestic violence is likely to occur and that they fear for their safety.

The report found that, because of the diversity of domestic violence, it is also not possible to prescribe an exhaustive list of factors which could be relied on to assess the "likely to occur" element. The requirement to prove "fear for safety" or that an offence is likely to occur again in the future is not necessary in the Magistrates Court Act and, as the Community Law Reform Committee report found, there are no logical reasons why it should be more restrictive in the case of domestic violence. There is also an inconsistency within the Domestic Violence Act, because section 10 requires the court to treat the need to ensure that the aggrieved person is protected from violence or harassment as a primary consideration.

Mr Speaker, it is the fact or threat of violence or harassment or offensive behaviour which indicates that someone is at risk, not whether conduct is likely to occur again or whether someone fears for their safety. A victim may be wishing to empower themselves by denying fear, but our laws currently say that this is not appropriate. The Community Law Reform Committee provided an extensive commentary on these issues. The report commented that the court has held that, to meet the fear for safety requirements, an applicant is required to meet an "objectively reasonable fear" test. This test is not whether the aggrieved person is in fear but whether a judge or magistrate finds that fear is, objectively speaking, a reasonable response to the respondent's conduct.

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