Hansard debates

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning, Minister for Prevention of Family Violence) (11:19): Under the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Family Violence, Coercive Control, Good Character, Risk Assessment and Other Matters) Bill 2026 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill contains a package of reforms designed to improve justice system responses to sexual and family violence, including strengthening accountability for perpetrators and improving court processes to minimise further harm to victim-survivors.

The Bill amends the:

• Crimes Act 1958 (Crimes Act) to introduce an offence of coercive control

• Sentencing Act 1991 (Sentencing Act) and Youth Justice Act 2024 (YJ Act) to abolish the concept of good character (including its use as a mitigating factor) at sentencing

• Family Violence Protection Act 2008 (FVPA), Criminal Procedure Act 2009 (CPA) and Personal Safety Intervention Orders Act 2010 (PSIOA) to:

• enable a court to extend or vary a family violence intervention order (FVIO) on its own motion when sentencing an adult respondent for family violence offending

• require police to indicate if there is an FVIO or recognised interstate domestic violence order in place when filing related family violence charges, and to indicate if an extension or variation application will be made

• establish a default length of 12 months in addition to the total effective sentence when an FVIO is being extended if the respondent is serving a term of imprisonment for related family violence offending

• provide considerations courts must take into account when determining an FVIO extension application

• ensure earlier intervention and protection for vulnerable children and young people by enabling personal safety intervention orders (PSIOs) to be ordered against adults engaging in grooming behaviours

• clarify that electronic signatures can be used for documents required to be signed in relation to FVIOs and PSIOs

• clarify information-sharing obligations under the Family Violence Information Sharing Scheme (FVISS) and streamline reporting obligations under the Multi-Agency Risk Assessment and Management (MARAM) Framework

• Infringements Act 2006, Fines Reform Act 2014 and Road Safety Act 1986 to include court fines in the work and development permit (WDP) scheme and include speeding camera fines in the family violence scheme (FVS) where the victim-survivor was not the driver, and

• Equal Opportunity Act 2010 (EO Act) to insert a new attribute of ‘subjection to family violence’ that would prohibit discrimination in areas of public life against a person who has been or is being subjected to family violence.

Human Rights Issues

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, to the extent that any rights are limited, those limitations are reasonable and justified.

Introducing an offence of coercive control

The Bill seeks to protect and promote the rights of victim-survivors of family violence by amending the Crimes Act to introduce a new offence of coercive control. The offence will apply where an accused person engages in a course of conduct towards a current or former intimate partner intending that course of conduct to coerce or control them in circumstances where the accused ought to have understood that the course of conduct will probably cause harm to the other person.

Right to life (section 9), right to protection from torture and cruel, inhuman or degrading treatment (section ‍10) and right to liberty and security of person (section 21)

Section 9 of the Charter provides that every person has the right to life and the right to not be arbitrarily deprived of life, which recognises that public authorities have a duty to safeguard lives. Section 10 of the Charter provides that a person must not be subjected to torture or treated in a cruel, inhuman or degrading way, which recognises the duty of public authorities to take reasonable steps to prevent, protect against, and respond to abuse, including in the private sphere. Section 21(1) of the Charter provides that every person has the right to liberty and security, which recognises that public authorities must take reasonable steps to protect people from interference with their personal integrity.

Introducing an offence of coercive control promotes each of these rights. In circumstances of family violence, coercive control is a particularly serious form of offending and is often a precursor and risk factor for homicides in the context of intimate partner violence. The conduct captured by the offence includes physical, sexual, economic, emotional or psychological abuse and conduct that, in any other way, coerces or controls a victim, and which causes them to feel fear for their safety or wellbeing. This includes conduct that can be fatal or cause serious injuries and conduct that is not physical in nature but is nonetheless cruel, inhuman or degrading. The definition of ‘emotional and psychological abuse’ in the offence expressly includes conduct that torments or degrades a person.

While some of the conduct captured by the new offence is already criminalised, creating a new offence will criminally denounce coercive control conduct that is cumulatively harmful and dangerous. It will assist police, early intervention services and justice agencies to better identify, monitor and respond to instances of coercive control.

Right to freedom of movement (section 12) and right to privacy (section 13)

Section 12 of the Charter provides that a person is entitled to move freely within Victoria, to choose where to live in Victoria, and to freely enter and leave Victoria. Section 13(a) provides that a person has the right not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

The new coercive control offence promotes the right to freedom of movement and the right to privacy as the broad nature of prohibited conduct captured by the offence will ensure that the criminal law deters and punishes behaviour that interferes with a victim’s privacy, family, home or correspondence. For example, the offence captures unreasonably monitoring a person’s movements or activities, or use of social media, unreasonably disclosing certain personal information such as health information, and restricting or interfering with a person’s access to housing or other support services. This promotes victims’ privacy, individuality and identity as well as their ability to not have their actions or movements limited.

Protection of families and children (section 17)

Section 17(1) of the Charter recognises the family as the fundamental group unit of society and entitles it to protection by society and the State. Section 17(2) recognises that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

The coercive control offence promotes the protection of families and children by strengthening protections for intimate partners who are victims of family violence. By introducing a new coercive control offence, people will be able to report coercive and controlling behaviours to police which can result in an investigation and prosecution of an accused person, and if successful, a criminal conviction including an imprisonment order. It will also generally deter and denounce coercive control and strengthen perpetrator accountability by capturing forms of intimate partner violence which may otherwise go unchecked or unprosecuted, offering more protection for the family unit.

The Bill also promotes the best interests of the child by limiting the application of this offence to adult accused persons (18 years or older). Limiting the offence to adults recognises the complexities of children who use family violence. These children are often victims themselves and adopt the use of violence as a learned behaviour. This limitation protects children from being criminalised given their age, maturity and likelihood of being a victim of misidentification. It is also consistent with Victorian Youth Justice principles around age-appropriate responses, diversion and minimising unnecessary contact with the criminal justice system.

Right to a fair hearing (section 24)

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has a right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

While the rights of an accused person under section 24(1) are engaged by the new offence, they are not limited as nothing in the new offence restricts an accused’s right to have the charge or proceeding heard by an impartial criminal court. The accused will also have a right to a fair hearing, encompassing fundamental principles of procedural fairness, such as the reasonable opportunity to be informed of the prosecution case, and to respond and present the defence case accordingly.

Consistent with other recent offence reform, the new offence also promotes the right to a fair hearing by setting out the offence using a clear structure and simple, modern language. This makes the offence easier to read and understand. All elements of the offence that must be proven are set out and a defence is also clearly stated. Terms and definitions are consistent with existing terms and definitions where possible, as is the structure of the offence. This approach improves access to the law by making it easier to understand how the law applies.

Rights in criminal proceedings (section 25)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

This right is engaged, as the reasonableness defence available for the offence places an evidential burden of proof on the accused. To raise the defence, an accused person must point to evidence that the course of conduct was reasonable in the context of the relationship as a whole. The prosecution must then prove beyond reasonable doubt that the accused’s conduct was not reasonable. This defence does not limit the right to be presumed innocent as the legal burden remains on the prosecution.

Abolishing the concept of good character (including its use as a mitigating factor) at sentencing

The Bill amends the Sentencing Act and YJ Act to:

• abolish the concept of ‘good character’ (including its use as a mitigating factor) at sentencing

• ensure that child offenders, as well as adults, may not rely on a lack of prior convictions to mitigate sentence when it facilitated their offending in child sexual offence cases (the ‘special rule’), and

• require those providing written references for an offender to be aware of the offence or offences for which the offender may be sentenced.

The reforms to abolish ‘good character’ at sentencing are intended to prevent offenders from benefitting from a concept that the New South Wales Sentencing Council found to be vague, speculative and subjective, and as such an inappropriate reason to reduce sentence. The reforms are intended to reduce harmful effects on victim-survivors, including the distress, re-traumatisation and harm minimisation they can experience when offenders’ good character is considered a mitigating factor at sentencing. The New South Wales Sentencing Council also heard concerns from some victim-survivors that the prospect of hearing an offender described as having ‘good character’ during sentencing may discourage offence disclosure.

It is anticipated that the reforms may lead to minor increases in sentence lengths, but that any increase would be modest and within the existing penalty range of the offence at the time it was committed.

Expanding the special rule to apply to children who commit child sexual offences will ensure that the same restrictions apply to both adults and children. The amendment reflects that children can obtain positions of trust in the community because of a lack of prior convictions (for example, as sporting coaches or workplace supervisors) and then use those positions to facilitate committing child sexual offences. However, this expansion is likely to have limited practical application given the small cohort of children who commit child sexual offences, coupled with the requirement to prove that a lack of priors facilitated the offending.

Right to recognition and equality before the law (section 8)

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. The first limb of section 8(3) is directed to the enforcement and administration of laws. It requires that public authorities, courts and tribunals treat all people equally when applying the law, and do not apply the law in a discriminatory or arbitrary way, or in a manner that has no objective justification.

The Bill promotes this right by abolishing the concept of good character (including its use as a mitigating factor) at sentencing. Currently, relying on ‘good character’ at sentencing contributes to differential treatment in the sentencing process as the concept is vague and subjective, and courts assess ‘good character’ inconsistently. Further, relying on ‘good character’ at sentencing engages in a form of moral and social accounting which can entrench systems of privilege, as not all offenders have equal access to evidence that can support a finding of ‘good character’ at sentencing. Removing this vague, subjective consideration from the sentencing process will help to ensure that courts only consider evidence about an offender’s circumstances and characteristics when it is relevant to other sentencing considerations.

Protection of families and children (section 17), rights of children in the criminal process (section 23) and rights in criminal proceedings (section 25)

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. Section 23(3) of the Charter provides that a child who has been convicted of an offence must be treated in a way that is appropriate for their age. Section 25(3) of the Charter provides that a child charged with a criminal offence has the right to a procedure that takes account of their age and the desirability of promoting the child’s rehabilitation.

By abolishing the concept of good character at sentencing, the Bill will remove a mitigatory factor in the sentencing process, including for children. Expanding the special rule to apply to children will also prevent a small number of children from relying on a lack of prior convictions as a mitigating factor, when that lack assisted them to commit a child sexual offence.

These changes may result in marginally increased sentence lengths for child offenders, engaging rights under sections 17(2), 23(3) and 25(3) of the Charter. However, courts will still be able to consider information or material about a child offender’s circumstances and background and evidence regarding a child’s individual characteristics, vulnerabilities and strengths where this information is relevant to other sentencing considerations, including where provided to courts in written references. The reforms will also not impact YJ Act sentencing principles, including specific sentencing principles for Aboriginal children, or the requirement to prioritise rehabilitation and the positive development of children. For these reasons, I consider that although the rights in sections 17(2), 23(3) and 25(3) are engaged by the good character reforms, they are not limited.

Right to protection from retrospective criminal laws (section 27)

Section 27(2) of the Charter provides that a person must not have a penalty imposed on them that is greater than the penalty that applied to the offence when it was committed.

The Bill’s reforms to abolish the concept of good character (including its use as a mitigating factor) at sentencing will apply to the sentencing of offenders who have been found guilty of an offence on or after commencement, regardless of when the offence being sentenced was committed, and may result in marginally increased sentence lengths. However, the reforms do not limit section 27(2) of the Charter, as the Bill does not change the maximum penalty that applies to any offence.

For the reasons set out above, I consider that the good character reforms in this Bill do not limit any Charter rights. However, to the extent that any limitation may be perceived, then I consider it would be reasonably and demonstrably justified, noting that:

• good character is not an appropriate reason to mitigate a sentence given it is based on a vague and subjective concept that cannot predict risks of re-offending or prospects of rehabilitation, and using and referring to good character in mitigation of sentence is harmful and may be re-traumatising for victims

• these concerns about the use of good character to mitigate a sentence apply equally to both adults and children, and

• courts will not be prevented from considering information about a person’s circumstances or characteristics if it applies to another relevant sentencing consideration.

Improvements to family violence intervention orders to better protect victim-survivors

Intervention orders are an important mechanism to protect victim-survivors and hold perpetrators of family violence to account. The primary purpose of the reforms to existing FVIO extension and variation processes in Parts 2–3 of the Bill is to enable courts to act more efficiently to reduce the risk of further harm, minimise the trauma caused to victim-survivors by having to attend multiple court proceedings, and promote more consistent and victim-survivor centred decision-making in respect of family violence risk.

Right to life (section 9), protection from torture and cruel, inhuman or degrading treatment (section 10), protection of families and children (section 17) and right to liberty and security of person (section 21)

The amendments in Parts 2–3 of the Bill promote these rights by enabling courts to more swiftly respond to a clear risk of further family violence by strengthening or extending an FVIO on their own motion when sentencing a family violence offender; introducing a default extension length where a family violence offender receives a custodial sentence to ensure protections remain in place during the post-release period of heightened risk; and requiring courts to consider the views of victim-survivors, including their self-assessed risk, when determining an application to extend an FVIO. These reforms will ensure protections are more responsive to the risk posed to families and children by family violence and reduce the trauma associated with having to return to court to seek stronger conditions or longer orders.

Right to freedom of movement (section 12) and association (section 16), privacy (section 13), property (section 20), and liberty and security (section 21)

The proposed reforms limit certain rights protected under the Charter insofar as they create new processes under which a court may extend the duration of an FVIO or strengthen its conditions to further restrict the respondent’s conduct to reduce the risk of further family violence.

In particular, the reforms engage the right to freedom of movement insofar as the conditions of an FVIO may restrict the respondent’s movement by prohibiting them from entering or residing in a certain property or from going within a specified distance of the protected person or their workplace. The conditions of an FVIO may also engage the right to freedom of association by restricting who the respondent can associate with and prohibiting contact with protected persons.

FVIO conditions can also restrict a respondent’s relationships with family members and ability to enter their home, which engages the right of a person to not have their privacy and the privacy of their family and home unlawfully or arbitrarily interfered with, property rights and the right to liberty and security.

The limitation of these rights is necessary to achieve the purpose of protecting victim-survivors from an identified risk of harm, and proportionate insofar as these restrictions can only be imposed where a court is satisfied on the balance of probabilities that they are necessary to protect a person’s safety. In particular, the exercise of the own motion power and the determination of an appropriate period by which to extend an FVIO ultimately remain at the court’s discretion. As such, any interferences with these rights are not unlawful or arbitrary insofar as they are authorised by legislation, subject to judicial oversight, and responsive to an identified risk of family violence.

Right to a fair hearing (section 24)

The Bill may also engage the respondent’s right to a fair hearing by empowering a court to extend or vary an FVIO on its own motion when sentencing the respondent for related family violence offending. This right entitles a person facing criminal charges or a party to a civil proceeding to a reasonable opportunity to be heard in those proceedings, including a fair chance to call witnesses or present evidence.

The own motion power reform is designed to recognise the link between criminal offending and an escalation of family violence risk, and to enable courts to respond effectively without requiring victim-survivors to attend further hearings or provide additional evidence. Accordingly, the own motion power will be enlivened by a finding of guilt in a criminal proceeding, and can only be exercised on the basis of evidence admitted during the criminal hearing or for the purposes of sentencing, taking into account the views of an adult protected person or a child who is the victim or sole protected person on the FVIO. Unlike the hearing of an application to extend or vary an FVIO under the FVPA, parties will not have an opportunity to test evidence when the own motion power is exercised.

The information that courts can consider for the purposes of exercising the own motion power is purposefully limited to avoid creating delays in protections for victim-survivors and to mitigate any risk to the integrity of the criminal proceeding. However, in accordance with the principle of procedural fairness, the court will be required to have regard to all the circumstances of the case and provide the respondent with an opportunity to be heard in respect of any extension or variation being contemplated by the court. The limitation on the respondent’s ability to challenge evidence is not arbitrary or absolute insofar as the exercise of the own motion power will remain entirely at the court’s discretion. That is, the court need not exercise the power if it considers a substantive application hearing would be more appropriate. As such, any constraints on procedural rights are balanced against the need to promote the rights of families and children, and reasonably necessary to ensure courts can respond expediently to a clear risk of family violence.

The parties may appeal under the FVPA a decision made by the Magistrates’ Court but cannot appeal any appellate decision or a decision of the County Court or Supreme Court to extend or vary an FVIO on its own motion. While there is no general right to an appeal, alternative avenues of review, including judicial review, remain available, and the Bill does not limit appeals from the County Court or Supreme Court on the basis of jurisdictional error. The Bill also does not provide an appellate court, when hearing an appeal against the related criminal offending or sentence, with any power in relation to an FVIO. This may result in circumstances where a respondent is acquitted of the related family violence offence that enabled the sentencing court to exercise the own motion power under new section 125E but the FVIO, as varied or extended, remains in place.

Both parties may apply to vary or revoke an FVIO that has been extended or varied on the court’s own motion under the existing civil framework in the FVPA. When making such an application, parties are not required to demonstrate a change in circumstances if the County Court or Supreme Court exercised the own motion power in the first instance. The respondent must seek leave from the court to apply for an FVIO to be varied or revoked to protect victim-survivors from vexatious applications which may be used to perpetrate systems abuse. However, the Bill removes this requirement in circumstances where the FVIO was extended or varied under new section 125E but the related criminal conviction or sentence was changed on appeal, given the appellate court will not be able to make any further changes to the FVIO.

Any limitation on the right to a fair hearing is balanced with the importance of protecting families and children from repeated exposure to the stress and trauma of a protracted appeals process and multiple court proceedings.

In my view, to the extent that any right is limited by the changes to FVIO extension and variation processes, the limitation is reasonable and justified under section 7(2) of the Charter.

Better protecting children and families from ‘grooming’ behaviours

The amendments to the PSIOA in Part 7 of the Bill will provide greater safety for children under the age of 16 by including grooming as a ‘prohibited behaviour’ under that Act, enabling courts to disrupt predatory behaviour before it escalates to sexual offending and better hold perpetrators to account.

Protection of families and children (section 17) and right to liberty and security of person (section 21)

Perpetrators of sexual offences against children may purposely establish relationships with children, parents, carers or other family members to create situations in which abuse can take place. The Bill recognises the importance of protecting children and their families from this exploitative and harmful conduct by defining grooming as a ‘prohibited behaviour’ alongside similarly serious behaviours, such as assault and harassment. This empowers courts to make a PSIO before a sexual offence is committed, thereby promoting the rights of the child and the family unit to protection and the right to liberty and security of person.

Rights to freedom of movement (section 12), privacy (section 13), freedom of association (section 16) and property (section 20)

Expanding the circumstances in which a court can impose a PSIO will limit certain rights protected under the Charter. As discussed above, the conditions of an intervention order may engage the rights to freedom of movement, privacy, freedom of association and property by restricting who the respondent can contact or associate with, and where they can reside or travel.

Any limitations on these rights imposed by the Bill are reasonable and justified insofar as they are balanced against the importance of protecting families and children, and necessary to achieve the purpose of effectively responding to and disrupting grooming behaviour. The imposition of a PSIO with conditions that restrict these rights can only occur where a court is satisfied that they are necessary to protect a person from grooming, subject to judicial discretion and in accordance with established legal rules and procedures.

Recognising the validity of electronic signatures

Part 4 of the Bill amends the FVPA and PSIOA to make it clear that if a signature is required by or under one of these Acts, that signature can be done by electronic means.

Right to recognition and equality before the law (section 8)

Section 8 of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination.

The electronic signature reforms will promote this right by ensuring that Victorians living in regional or remote communities, and those limited by mobility challenges, have equal access to legal services and participation in legal proceedings. The reforms also help to make FVIO and PSIO proceedings less disruptive to the lives of victims by allowing them to sign documents without attending court or a police station.

The reforms will also promote the right to equal protection of the law by making clear that the consent of any other party is not required, preventing perpetrators from using a consent requirement to frustrate proceedings.

In circumstances where an electronic signature is not preferred by the person signing, the existing means of physically signing a printed document remains available.

Clarifying the responsibilities of ‘information sharing entities’ under the FVISS

Right to privacy and reputation (section 13)

The Bill includes amendments to the FVISS in Part 5A of the FVPA. The scheme provides that prescribed ‘information sharing entities’ are enabled or required to share information about persons believed to be either at risk of perpetrating, or being subjected to, family violence and those linked to such persons.

The scheme deliberately prioritises the safety of people experiencing family violence over the privacy of people using family violence. The Statement of Compatibility for Part 5A noted that appropriate safeguards are provided and that information sharing under the scheme is neither unlawful nor arbitrary.

The amendments in the Bill will clarify the operation of existing provisions but will not alter the scope of the scheme as it currently operates. Accordingly, I am satisfied that these amendments do not impose any further limitation on the right to privacy and reputation.

Right to protection of families and children (section 17)

The MARAM Framework and FVISS exist to protect the safety of families and children and to identify and manage risks to that safety. By providing further clarity on the operation of the scheme, the Bill promotes the rights outlined in section 17 of the Charter.

Expanding the family violence scheme to include fines issued for excessive speed infringements detected by camera where the victim-survivor was not the driver

Right to protection of families and children (section 17)

The amendments to expand the family violence scheme for infringements fines to include excessive speed infringements where the family violence victim-survivor was not the driver promotes the right to protection of families in section 17(1) of the Charter. The change means that family violence victim-survivors can access the scheme to ensure they are not held liable for excessive speed infringements where family violence has substantially contributed to them being unable to nominate the offender or reject a nomination. Limiting the expansion to excessive speed infringements where the family violence victim-survivor was not the driver of the vehicle ensures that road safety is not compromised.

Prohibiting discrimination on the basis of a person’s subjection to family violence

Recognition and equality before the law (section 8), protection of families and children (section 17), taking part in public life (section 18), and rights in criminal proceedings (section 25)

The inclusion of subjection to family violence as an attribute in the EO Act will promote the rights in sections ‍8, 17, 18 and 25 of the Charter, specifically for Victorians that have been or are being subjected to family violence.

The amendments will promote the right of recognition and equality before the law, as outlined in section 8 of the Charter. This right is central to anti-discrimination reforms. Under section 8(2), every person has the right to enjoy their human rights without discrimination. The amendments will prohibit discrimination on the basis of a person’s subjection to family violence in areas of public life, including employment, education, provision of goods and services, disposal of land, accommodation, clubs, sport and local government, which directly links to a person’s right to take part in public life, as enshrined in section 18 of the Charter.

Similarly, the reforms will promote equality before the law and a person’s entitlement to equal protection of the law without discrimination, and equal and effective protection against discrimination, as set out in section ‍8(3) of the Charter. The amendments will add subjection to family violence as an additional attribute protected from discrimination under the EO Act and will provide victims of family violence with equivalent protections to persons that are discriminated against on the basis of other attributes, such as age, disability, race, religious belief or activity, or sex.

I note that the amendments will also promote substantive equality for family violence victim-survivors through the operation of section 8(4) of the Charter, which enables targeted measures and initiatives to support them without those measures constituting discrimination.

The Charter defines ‘discrimination’ by reference to the definition in the EO Act where the discrimination is on the basis of an attribute set out in section 6 of that Act. The Bill amends section 6 of the EO Act to include subjection to family violence as an attribute, which has the effect of expanding the application of the definition of discrimination under the Charter. This will also impact non-discrimination provisions in sections 17(2), 18, and 25(2) of the Charter.

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the vulnerability of children. The amendments include a definition of ‘family violence’, which has the same meaning as defined in section 5 of the Family Violence Protection Act 2008. For the purposes of the new attribute, this would include a child that hears or witnesses, or is otherwise exposed to the effects of family violence. The reforms will therefore directly strengthen protections against discrimination for children.

Section 18 of the Charter protects the right to take part in public life without discrimination, including the right to vote, be elected at State and local government elections, and to have access, on general terms of equality, to the Victorian public service and public office. The amendments are likely to promote these rights by protecting family violence victim-survivors from discrimination and supporting their equal participation in the areas of public life under Part 4 of the EO Act.

Section 25(2) of the Charter sets out the minimum guarantees to which a person charged with a criminal offence is entitled, without discrimination. As noted above, the Charter defines ‘discrimination’ by reference to the meaning in the EO Act. The reforms will add a new attribute, which in effect expands the scope of the protections against discrimination in both the EO Act and the Charter. This would, in practice, extend the minimum guarantees for a person charged with a criminal offence to include protection against discrimination on the basis of their subjection to family violence.

The EO Act contains exceptions and exemptions to discrimination prohibited under the Act, including exceptions generally and specific to different areas of public life. The Bill does not amend the exception and exemption provisions in the EO Act, however it does have the effect of expanding the scope of exceptions that already apply to all attributes. This would permit discrimination on the basis of a person’s subjection to family violence in some circumstances, for example, employment in relation to domestic or personal services in the employer’s home under section 24 of the EO Act.

The Charter limitations of the exception and exemption provisions are addressed in the Statement of Compatibility to the EO Act. In my view, for the same reasons therein, any further limitations arising from adding a new attribute are reasonable and justified under section 7(2) of the Charter.

For the above reasons, I am satisfied that the Bill is compatible with the Charter.

Sonya Kilkenny

Attorney General

Minister for Planning

Minister for Prevention of Family Violence