Page 2093 - Week 07 - Tuesday, 2 August 2016
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The bill implements 22 recommendations from the ALRC report. In general, these recommendations address the following issues: firstly, the context and principles governing the operation of the legislation; secondly, applying, making, reviewing interim family violence orders, final family violence orders and after-hours orders, the effect of family violence orders and conditions attached to those orders, and national recognition of family violence orders.
The Bar Association, the Law Society and Civil Liberties Australia were invited to make comments, and the Law Society did provide a number of comments. In particular, the Law Society made comments about the breadth of the regulation-making powers contained in the bill and a broad range of matters to be dealt with via regulation.
We have noted those concerns, and the most difficult of those devolve into the following areas: firstly, cross-examination by a self-represented accused. Concerns were raised in particular about clause 63 that relates to the examination of witnesses by a self-represented accused person, and this is an example of where one principle, in this case that of a victim of domestic violence, should not be cross-examined by the very person who is alleged to be responsible for the abuse, against the other basic principle that any person starts with the assumption that they have done nothing wrong until another has proven that they have. This is a difficult area.
However, we also note that clause 63 in this bill does bring the system of family violence offences into a similar regime that already exists under section 38(d) of the Evidence (Miscellaneous Provisions) Act 1991. Indeed, briefings have indicated that clause 63 was drafted to bring family violence into line with the law in other areas. It could be argued that it would be an anomaly to provide a protection in the general law that is not available to victims of family violence.
Other issues included a range of practical considerations. The first, and in some ways the most important, is that there is no obligation for a person to be represented by a lawyer. It raises questions such as what happens to the hearing while a person is directed to get a lawyer. It has been indicated to us that there will be many times when the hearing will not be stopped, as it is a discretion under 64(4)(b)(i). Does a person get a say in who is appointed, and what happens if someone cannot pay for the appointment of legal representation? I think these are all valid concerns, and the operation of this section needs to be carefully monitored. Most importantly, it highlights the importance of proper legal representation in all of these areas to ensure it does not result in a loss of legal rights of one person in an attempt to preserve the rights of another. However, given the operation of section 38(d) of the Evidence Act we believe that it is better that this act be in line with other laws and we support this section, noting those areas of concern.
Another area that is complex and problematic is that of after-hours orders. The concern raised in regard to it was the issue of detaining a person while an order is being sought. The scrutiny committee raised the concern over clause 105, as noted in the scrutiny report. It raised the obvious concerns once again of a person being treated as if they are guilty when in fact their case has not been put to a judicial officer.
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