Page 3612 - Week 12 - Tuesday, 27 October 2015
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Although I think we would all join together in our intended desire to make sure that we are doing everything we can to protect the victims of domestic violence, these are very difficult issues when they come to law. I can say clearly that we have had a number of discussions around the technical legal nature of these issues to make sure that in our desire, endeavour and unanimous view that we should be doing all we can to protect the victims of domestic violence, who are often women and children, we recognise the rights of the accused, often men. That is often a difficult balance.
It is important that as we proceed to make those changes, with all the best will in the world, we understand the effects that we are having on our legal system. Having had discussions with the Law Society, I note that I am also aware of some correspondence from the Bar Association in which there are some concerns being raised. I know that these have been expressed to the government through JACS. I think that they need to be recognised as we proceed to make sure that we do not do anything here that has those unintended consequences.
The legislation itself does a number of things. It amends section 28 of the Crimes Act 1900 to reflect that strangulation that does not cause unconsciousness is still an act that endangers health. It amends the Evidence (Miscellaneous Provisions) Act 1991 to allow police records of interview to be admitted as evidence in chief for family violence in all sexual offences; it expands the special measures provisions to allow special measures to apply to breaches of domestic violence orders and other select offences; it makes a number of consequential amendments as a result of the new evidence-in-chief provisions; and it amends the Domestic Violence and Protection Orders Act 2008 to create a new class of interim domestic violence orders to allow a court to extend interim domestic violence orders where there are current criminal charges unresolved before the court.
I will go to each of them. Currently, the only offence in ACT legislation directly aimed at strangulation is contained in section 27 of the Crimes Act 1900 as an “act endangering life”. The penalty for an offence under this section is imprisonment for up to 10 years. The amendment seeks to recognise the seriousness of strangulation as an offence with a lower threshold than “endangering life”. This reflects the evidence that strangulation is a tactic often used in family violence to threaten, intimidate and control a victim. By introducing an offence for strangulation with a lower threshold of harm, victims are more likely to be granted protection from violence.
The new offence will operate within the existing criminal law framework in the ACT to ensure that any action to restrict a person’s liberty occurs as part of a lawfully established criminal procedure. This offence will also apply outside a domestic or family violence situation. While the risk of serious injury is substantially higher for strangulation than occurs in a domestic or family violence setting, obviously there is nonetheless an impact on a person’s health and wellbeing when they are strangled.
Turning to changes in evidence, we have had a number of briefings. I met with the Law Society. Certainly, the Law Society, as much as anyone, understands and acknowledges that domestic violence remains an issue that requires continuing community focus and action as well as law reform. The society is concerned to ensure,
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