Page 1159 - Week 04 - Thursday, 17 March 2005
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to ensure that it does not unduly interfere with the rights and liberties of an individual. Both domestic violence and personal protection orders require the Magistrates Court, the registrar or another judicial officer to take into account before making an order any hardship that may be caused to the respondent by the making of the order.
In considering the expansion of the definition of domestic violence and the recognition that a person’s behaviour will be domestic violence if it causes personal injury, not just physical injury, to someone, the committee expressed its reticence over the inclusion of nervous shock as a form of personal injury. The committee was also concerned with the question of how a court could determine whether the victim had suffered nervous shock.
The inclusion of personal injury as domestic violence is consistent with other ACT legislation. The Victims of Crime (Financial Assistance) Act 1933 defines “injury” as physical or mental injury and includes mental shock or nervous shock. It would be inconsistent to recognise mental injury as one of the potential outcomes of crime but not to recognise it as sufficient basis for a domestic violence order, which is an order intended to prevent the commission of a crime. The concept of nervous shock is not a new legal concept. The same sorts of rules will apply in the determination of personal injury as currently apply in the determination of physical injury in relation to an applicant seeking a personal protection or domestic violence order.
The final concern of the committee was in relation to clause 19 of the bill. This clause provides that a person commits an offence if the person engages in conduct that contravenes the condition of a protection order, the penalty being 50 penalty units or imprisonment for five years, or both. The committee questioned whether a maximum of five years is appropriate for contravening a protection order.
In addressing the committee’s concerns in relation to clause 19, I would like to stress that this provision is simply a restructuring of the current tiered provision where the penalty units for the first offence are the same as for a second or subsequent offence. Also, this provision is a maximum penalty, not a minimum, with the courts retaining the discretional to impose a just and appropriate sentence having regard to the unique circumstances of the case. In determining a sentence, the court is required to have regard to a range of matters specified in section 342 of the Crimes Act, including prior convictions.
Mr Speaker, considerable care and attention was given to the amendments outlined in this bill. Discussion was undertaken with agencies and groups that deal with domestic and personal violence issues on a day-to-day basis and there was an extensive public consultation period with the release of a discussion paper on the proposed changes. The bill was supported in full by the Human Rights Office, which held that the right to protection from cruel, inhuman or degrading treatment in section 10 of the Human Rights Act requires effective legislative measures against domestic and personal violence.
This bill gives paramount consideration to the need to ensure that an aggrieved person is protected from personal and domestic violence and that a child at risk of exposure to domestic violence is protected from that violence. I thank members of the Assembly for their support of this bill. I note that the shadow attorney has foreshadowed an amendment, which the government will not be supporting. I will speak to that when the
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