Hansard debates

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning, Minister for Prevention of Family Violence) (11:20): I move:

That this bill be now read a second time.

I would like to acknowledge all of the women and children whose lives have been taken by family violence.

I would like to also recognise that nobody bears the brunt of this epidemic at the same rate or intensity as First Nations women and children.

Across Victoria and indeed Australia, family violence is the number one law and order issue that is destroying lives, harming children across generations and destabilising homes, communities and our broader society.

This government has done more than any other government in history to better protect women and children and hold perpetrators to account.

But the work is never done.

Today, we take a further step.

This bill is about listening and responding to the voices of victim-survivors.

It contains a number of significant reforms to prioritise victim-survivor safety, improve the efficiency of justice processes and ensure perpetrators of all forms of interpersonal violence can be held to account.

Before I get into further detail about the bill, I would like to highlight the advocacy of those whose lives have been impacted by family and sexual violence and whose voices have contributed to the reforms in this bill.

Some of you are here today.

It is an incredible thing to go through the trauma you have been through and transform that experience into advocacy and change.

I am honoured to be standing here today on your behalf – because make no mistake, this bill would not be possible without you.

So thank you.

Now to the bill and its reforms.

Coercive control

Coercive control is an insidious form of abuse used, usually by a man, to intimidate, humiliate, surveil, gaslight or isolate another person, usually a female intimate partner, and strip them of their sense of autonomy and self-worth so as to have control over them.

We know the devastating impacts this can have – increasing the risk of victims becoming homeless, suicidal, having poor health outcomes, sliding into poverty and committing offences themselves.

And, heartbreakingly, in some cases, it can be fatal.

While I acknowledge this is a complex area for law, it is unthinkable today that this kind of harm is not criminal.

Currently, there is no criminal justice response available for victim-survivors of coercive control unless there is a family violence intervention order (FVIO) in place or a physical criminal offence has taken place, like assault or a sexual offence.

Victim-survivors deserve to feel seen and heard and to know that the system can work to make them feel safe and protected.

Considerable work has gone into developing this offence, and I want to acknowledge the many complexities raised by stakeholders throughout the process. Thank you for your collaboration to ensure we do this well.

While it has not been possible to reconcile all views, the offence balances and addresses concerns where possible.

We will continue to work with stakeholders to ensure family violence services, police, courts and the legal profession are adequately supported to implement the offence and are engaged in the implementation process.

While the bill focuses on coercive control within intimate partner relationships, we know that coercive and controlling behaviours happen in other relationships too and this should be taken seriously.

Relationships and behaviour that fall outside the scope of this offence may continue to be dealt with by existing civil and criminal interventions, including FVIOs, breaches of those orders and other criminal offences.

The new offence will increase awareness of the harms caused by coercive control in all relationships. Importantly, the statutory review will specifically consider whether the scope of the offence should be expanded to capture coercive control in other relationships.

I know that misidentification of the predominant aggressor in family violence offending is a significant issue and has been a concern for stakeholders during the development of this offence.

The offence has been carefully crafted to minimise this risk, but for this offence to work, it is critical that justice agencies, from police to the courts, are provided training and support to fully understand the dynamics of coercive control.

The delayed commencement of approximately 18 months will allow for education and training for these workforces, to minimise the risks of misidentification.

The statutory review of the offence will also provide an opportunity to ensure the offence is operating as intended and to consider whether changes are required to further reduce the risk of misidentification.

Good character

Now, to ‘good character’ reform.

The bill will abolish the concept of good character, including its use as a mitigating factor, at sentencing for all offences.

Currently, victim-survivors are having to sit in court and hear that the person who harmed them is a person of ‘good character’. This can compound the trauma and diminish their experience.

The concept of ‘good character’, on its own, is generally only about someone’s reputation, community standing or their past ‘good deeds’.  This is not an accurate way to predict an offender’s prospects of rehabilitation or risk of reoffending.

These reforms seek to enable courts to continue to take into account relevant information at sentencing, while ensuring they no longer receive or consider vague, subjective opinions about an offender’s supposed moral worth as a person of ‘good character’.

Courts will still be able to consider information about an offender’s circumstances and characteristics, such as social background and employment history, including in written references, where that information is relevant to the remaining sentencing considerations, such as prospects of rehabilitation and risk of reoffending.

Equal Opportunity Act reform

This bill is amending the Equal Opportunity Act 2010 to add a new attribute of ‘subjection to family violence’.

This will make it unlawful to discriminate against someone because they have experienced, or are experiencing, family violence.

This new protection will apply to areas of public life, including employment, education, the provision of goods and services, disposal of land, accommodation, clubs, sport and local government.

No victim-survivor should lose a promotion, be performance managed or be denied a rental because they needed to attend court, relocate for safety or access support.

Victim-survivors will be able to challenge discrimination based on this new attribute by dispute resolution at the Victorian Equal Opportunity and Human Rights Commission or by applying to the Victorian Civil and Administrative Tribunal for civil redress, including compensation.

There will also be a positive duty on organisations, such as employers and accommodation and service providers, to take proactive, reasonable and proportionate steps to eliminate discrimination based on the new attribute. The commission has powers to investigate contraventions of this duty.

Family violence and personal safety reforms

The bill also contains a number of reforms to deliver more victim-centric processes for extending or varying an FVIO and better protect children and families from predatory behaviour under the personal safety intervention order (PSIO) system.

Currently, victim-survivors are often required to attend court multiple times to seek protection from their perpetrator, forcing them to relive their experiences of violence and subjecting them to further trauma, even when there is proven criminal family violence offending.

Victims should not have to feel like they have to fight so hard for protection.

Reforms in this bill will allow a criminal court, on its ‘own motion’ and with the consent of the victim-survivor, to extend or vary an FVIO when sentencing a perpetrator for relevant family violence offences.

To encourage earlier consideration of whether stronger protections are needed, the bill will require police to indicate if there is an FVIO in place and if an application to extend or vary that order will be made when filing a charge sheet for a related family violence offence.

The bill will also ensure courts more consistently prioritise consideration of victim-survivor views when extending an FVIO and encourage longer extensions when a perpetrator is serving a term of imprisonment for a related family violence offence, to avoid victim-survivors needing to return to court multiple times.

Fines and infringements reforms

This bill will strengthen supports for fine recipients experiencing vulnerability and disadvantage.

The family violence scheme will be expanded to include excessive speeding fines so that victim-survivors can access relief in these circumstances.

The work and development permit scheme will be also expanded to apply to court fines, where it is currently only available to infringement fines.

Electronic signatures

The bill clarifies that electronic signatures can be used for FVIO and personal safety intervention order documents.

This change will help to make proceedings less disruptive to the lives of victims by confirming they can sign documents without having to attend court or a police station.

Grooming

The bill will strengthen protections for children and families by enabling PSIOs to be made against adults engaging in ‘grooming’ behaviours.

Grooming is a predatory behaviour undertaken to facilitate child sexual abuse. It is insidious, deeply traumatic and deserves to be captured by the PSIO framework.

This will enable the conduct to be disrupted before it escalates to sexual offending.

Multi-agency risk assessment and management framework (MARAM)

Finally, the MARAM framework and the family violence information-sharing scheme are flagship reforms implemented by this government following the Royal Commission into Family Violence.

This bill includes reforms to support more effective, sustainable, and fit-for-purpose risk management and information sharing.

Together, these amendments will support prescribed organisations to better meet their legislative obligations and strengthen how professionals assess, manage and share information about family violence risk to keep victim-survivors safe and hold people who use violence accountable.

Section 85 of the Constitution Act 1975

It is my intention to make a statement under section 85(5) of the Constitution Act 1975 setting out the reasons for altering or varying that section. It is the intention of clause 8 of the bill to alter or vary section 85 of the Constitution Act.

Clause 8 inserts new sections 125S, 125T and 125U into the Family Violence Protection Act 2008. New section 125S provides there is no appeal against an own-motion order made by the County Court or the Supreme Court. New section 125T provides that an appeal against an own-motion order made by the Magistrates’ Court must not be started or continued if the final order was extended or varied since the Magistrates’ Court made the order that is subject of the appeal.

New section 125U provides there is no appeal against a decision of the County Court following an appeal against an own-motion order made by the Magistrates’ Court. These new sections will limit the Supreme Court’s ability to hear an appeal in certain circumstances and therefore engage section 85 of the Constitution Act. Clause 10 inserts new subsection (3) after section 208(2) of the Family Violence Protection Act to make clear that it is the intention of new sections 125S, 125T and 125U to alter or vary section 85 of the Constitution Act.

The right to appeal an own-motion power variation or extension is limited to ensure that victim-survivors are prevented from having to attend court on numerous occasions. This risks further traumatising the protected person, which would undermine the purpose of promoting and protecting the safety of victims of family violence. These limitations are also consistent with existing limitations in sections 114 and 120 of the Family Violence Protection Act. Parties can still seek to vary, extend or revoke an FVIO under existing provisions in the Family Violence Protection Act, if they so choose.

I commend the bill to the house.