Hansard debates

Michael O’BRIEN (Malvern) (13:20): It is a pleasure to rise to speak on the Crimes Amendment (Non-fatal Strangulation) Bill 2023. This bill has been a long time coming – in fact too long in coming. At the outset of my contribution today I would like to particularly pay tribute to the family of Joy Rowley. Joy died at the hands of a former boarder of hers who became a partner in 2011. She was murdered, and her murderer is currently spending a long time in jail, as is rightly the case. Joy’s children Renee Woolridge, Aaron Woolridge and Nadine Power, nee Woolridge, have not been ones to sit back and accept that grave injustice. They did not just want to see justice for their mum, they wanted to see the system changed, they wanted to see the system better for every woman. We do know that domestic violence, family violence, is a scourge in this state, in this country and around the world, and we need to do much more to tackle it. I should also add that Renee, Aaron and Nadine’s father Les has been very important in their advocacy in this campaign to change the law to improve the lives of women in this state.

From the time of the death of Joy, Renee, Aaron, Nadine and Les campaigned first of all for an inquest because it was almost as though women dying at the hands of partners is now so prevalent and something we shrug off that it was initially felt there was no need for a full inquest into this death. It was through the efforts, through the continual campaigning and advocacy – and hiring expensive lawyers, by the way – of the Woolridges that eventually a full coronial inquest was ordered. It was then State Coroner, Judge Sara Hinchey, who took on this inquest. The hearings were held from 21 to 23 May 2018 – so some years after Joy’s death – and the findings were delivered on 31 July 2018. During that inquest Victoria Police, quite rightly, apologised to Joy’s family for the mistakes that were made. How often have we heard this, where women in particular are threatened and are scared of partners or former partners, they seek the intervention of the law, they seek a family violence protection order and they get a family violence protection order, but the piece of paper does not necessarily save them? Tragically, that was the case for Joy Rowley. Victoria Police rightly apologised for the many missteps that had occurred in the case that led up to Joy’s death.

Of particular interest in the coroner’s findings – I will quote them, because they bring us to the bill before us today – is paragraph 161, where Her Honour said:

… researchers suggest that many perpetrators who use strangulation in a family violence context do not intend to injure their victims, but rather use strangulation to gain power and control over the victim. In this context, the available laws that require intent to cause bodily harm are unsuitable for application to this type of offending.

Her Honour went on to say, at paragraph 163:

The introduction of a stand-alone offence for strangulation, suffocation or choking in Victoria may significantly help to ensure strangulation is treated commensurate with the risk it poses to victims, and remove the need to prove particular bodily harm or intent to cause injury. Such an offence will more effectively hold perpetrators to account for serious offending. Further, the new offence may build further awareness of the dangers and potential lethality of strangulation among police members, courts and community services practitioners.

There we are in July 2018 with a clear recommendation coming from the State Coroner for there to be a standalone offence of non-fatal strangulation introduced in the state of Victoria. Following that the government in fact agreed to do so on I believe it was 1 July 2019, and I will find the quote so that I cannot be accused of misquoting. This is an article from the Age newspaper, 1 July 2019, quoting the then Minister for Police and Emergency Services the Honourable Lisa Neville:

“Strangulation is a common and devastating factor in violent offending – including family violence incidents – and we’ve recognised the need for a standalone offence that accurately reflects the trauma caused to victims,” Ms Neville said on Monday.

“These new laws will punish perpetrators appropriately and will be a step in recognising and intervening in escalating family violence situations.”

That was 1 July 2019, and here we are in mid-November 2023, which makes me ask: what has the government been doing? How many women have died in that time? Why has it taken the government so long to act? The coroner’s recommendation was made in July 2018, the government committed to implementing these changes on 1 July 2019 and here we are in mid-November 2023 debating them for the first time. It is just not good enough. The government owe an explanation to Joy Rowley’s family, and they owe an explanation to Victorian women, who have not had the benefit of the protection of the laws the government promised over four years ago. As I said, Joy’s family did not give up. On 17 November 2021, so almost exactly two years ago, in another article in the Age newspaper:

The family of a murdered Victorian mother says the state government has failed to introduce strangulation laws that could reduce the risk of homicide to women, despite promising two years ago to bring the legislation in.

As I say, this has been a long, long journey, and it has been too long a journey. I do not doubt that this government, as I think all members in this place do, places a premium on tackling family violence. I am sure we will hear from members opposite about the Royal Commission into Family Violence and the responses to the royal commission, and I welcome that. But here is an example where in 2018 the State Coroner recommended standalone offences be brought in, and the government did not act. In 2019 the government committed to it, and the government did not act. In 2021 the family of Joy Rowley reminded the government they had not acted, and nothing happened. Here we are in November 2023, so you will excuse me if I do not give the government too big a pat on the back for taking five years to do something which, frankly, was urgent five years ago.

This bill is called the Crimes Amendment (Non-fatal Strangulation) Bill 2023, but I will refer to it as Joy’s law, because I think that is an appropriate and fitting tribute to Joy Rowley and to her family, who advocated, campaigned and worked hard at great emotional pain. Every time this subject comes up the family are reminded of the trauma that they have suffered, but they have kept going because they care. They want something good to come out of something horrible, and what they want is to make sure that women in this state are better protected.

So the question is: is the government bill going to achieve that outcome? One thing that I think we need to be very clear about is that this cannot be set and forget. Simply passing a law is not necessarily going to change behaviour. It will not necessarily change the behaviour of people who are otherwise prone to family violence. It will not necessarily change the responses of victims of family violence. It will not necessarily change the behaviour of police or prosecutors or the courts. It is but one piece of a cultural change and a practical change that we need to see if we are to better protect women in this state.

What I would ask the government is: what else is being done around this change? Changing the law is one thing, but how is this going to work in practice? How will police be educated that this new law is available as an option? How will prosecutors and the courts understand about what this bill will do and the intention of it? How will domestic violence support services be informed about this? Will there be a public education campaign around the fact that the law is changing? Because the coroner was talking about this law as sending a message. She said:

Further, the new offence may build further awareness of the dangers and potential lethality of strangulation …

Well, it will only build that awareness if the government puts in place measures around it to make sure that the people who need to know about it know about it. That is what I would ask the government to consider, and that is what I would ask the government to do. This cannot be set and forget. The government must make sure that legal changes are accompanied by broader changes in the justice system, in family violence support services and, yes, in communicating to the broader public about why these changes have been made and what they do.

This bill provides for two new non-fatal strangulation offences. One relates to non-fatal strangulation intentionally causing injury, which is section 34AD in the new bill. That will occur where person A intentionally and without lawful excuse chokes, strangles or suffocates another person – person B; person A intends the choking, strangulation or suffocation to cause an injury to person B; and the choking, strangulation or suffocation causes an injury to person B. This requires intent to cause an injury, and there is no consent defence available to a charge under section 34AD.

To some extent this goes back to old legal principles that one cannot consent to particular types of injuries. There are particular types of injuries you can consent to. If you go on the football field, you know you are probably going to get bumped and tackled. If it happened in Chapel Street, it would be an assault; if it happens on a football field, it is a tackle. That is not the sort of consent we are talking about. We are talking about consent to intentionally injure somebody in the context of non-fatal strangulation, and that has a maximum penalty of 10 years imprisonment.

Section 34AE is a lesser offence in terms of maximum penalty – a maximum of five years imprisonment. That applies where person A commits an offence if they intentionally and without lawful excuse choke, strangle or suffocate another person – person B – and person A is a family member of person B. No intent to injure is required for the section 34AE offence.

Consent is available as a defence in section 34AE, and that is dealt with in two different ways. Where the action which constitutes the offence is part of a sexual activity, then the only way in which consent can be a defence is where it complies with, effectively, the revised definitions of consent that this Parliament has put into law in relation to sexual activity, often known as the affirmative consent model. This is something that we are supportive of. We are concerned that if these sorts of matters devolve into ‘he said, she said’, too often it will be the victim – and too often the woman – who is either not believed or the police find it very hard to prove the case.

When it comes to sexual activity, we have an affirmative consent model where there is a positive obligation on the person claiming consent to demonstrate, for example, that they said or did something to check that there was consent there. There are a whole range of matters which I do not have the time to go into great detail on, but we support the fact that where a defence of consent is raised in the context of sexual activity, it is the affirmative consent model that applies. Where consent is raised outside the context of sexual activity, then the normal statutory or common law defences of consent are available. It is not necessarily clear, but we understand why the government has drafted the laws in the way that it has.

Something which is I think very different in terms of how Victoria has approached this type of law to other states is in relation to the definition of ‘chokes, strangles or suffocates’ because obviously that is a key element of both offences. It includes any of the following things:

(a) applying pressure to the front or sides of a person's neck;

(b) obstructing any part of, or interfering with the operation of, a person’s respiratory system or 15 accessory systems of respiration;

(c) impeding a person's respiration …

So something as simple as applying your fingers to the side or front of a person’s neck technically meets the definition of ‘chokes, strangles or suffocates’ under this bill. What the government has done is drawn a very wide definition of what constitutes ‘chokes, strangles or suffocates’. That is something which we have certainly asked questions about. If you ask the average person on the street what ‘chokes, strangles or suffocates’ means, I guarantee you they would not say simply touching somebody on the side of the neck or on the front of the throat. I do not think that that meets the pub test, if I could use that term, for what the average person in the street would regard as ‘chokes, strangles or suffocates’. The government says it has used this very broad definition because there have been concerns in other jurisdictions that proving the physical aspect of the offence has been difficult. It remains to be seen whether the government’s approach, which is to have a very broad definition of ‘chokes, strangles or suffocates’, will be effective, because we all want this change to be effective. We all want it to better protect victims and vulnerable people, particularly women. We all want it because that is what Joy and Joy’s family deserve – a change that makes a difference and that better protects women in family violence situations.

This is novel, the way in which the government has approached this through its definitions, and I do not know if it is going to work. We want it to, but it remains to be seen whether this will work. We do not want to see, for example, that broad definition being abused or being weaponised in any way. Clearly we need to protect people who are vulnerable, but we do not want to see a broad definition being misused by anybody in any circumstance. So it is very much in front of the government to explain how it will be confident that that broad definition is appropriate and will protect those who need protection but equally will not be misused by anybody, because that is the last thing we need. We cannot afford to undermine legal protections for victims of family violence – we just cannot. Because we know that simply passing a law does not necessarily change behaviour and sometimes the way in which we as legislators pass laws is not interpreted or applied the way that we had in mind by the police or by prosecutors or by the courts, I do think that we need to build in a review of this change.

As I said, this cannot be set and forget. We want to see not just how the change we implement through this bill has effect legislatively but how police are responding to it, how family violence support groups are responding to it, how hospitals are responding to it, how courts are responding to it and how the broader Victorian community is responding to it. So I do think there is a strong case to be made for a review to be built into this bill. The Parliament did this recently with the bail changes, and again there was bipartisan support, at least to some degree, for the notion that bail was worthy of reform. But there is also uncertainty. I mean, how many times has this Parliament reformed bail laws only to come back to them a year or two years or three years or four years later because they did not have the effect that the Parliament intended? With that in mind, under standing orders I wish to advise the house of amendments to the bill and request that they be circulated.

Amendments circulated under standing orders.

Michael O’BRIEN: The amendments that I now circulate will provide for a review of the changes implemented by this bill after two years of their operation. That review is to be commissioned by the Attorney-General, and that review is to then be concluded within six months of the two-year anniversary of these changes and to be tabled in both houses of Parliament. From speaking to Renee, Aaron, Nadine and Les, I know that they are very, very supportive of this, and I would hope that the government would be agreeable to this amendment. This bill is drafted, no doubt, with the best of intentions. We need to have accountability to make sure that it has the changes we expect it to have, and if it does not, we need to understand why and we need to fix it. We could argue over whether 12 months or two years or three years is the right period of time to let these laws operate before we have a review, but given the Parliament did agree across the chamber to have a review after two years in relation to the bail changes, I believe that two years is also an appropriate period of time to consider how these changes in this bill have been implemented and to review their effectiveness. I would urge the government to support these amendments. As I say, they are something which the family of Joy Rowley have asked for, and they are amendments that I am very supportive of. The opposition puts them forward in the spirit of goodwill, and we hope that they are taken up by the government in that same spirit.

The definition of ‘family member’ in this bill is important, because obviously these new non-fatal strangulation offences only apply in the case of one family member to another. That does raise another question: if the same bad act occurs, shouldn’t it be treated the same under the law? The example that was put forward in the bill briefing – and I am grateful to the Attorney’s office; they have always been very helpful in arranging bill briefings on these sorts of matters – was if a man in a nightclub grabs his girlfriend around the neck aggressively and says ‘Right, we’re going home’, that would be an offence under this bill because, being intimate partners, they are family members. If a man at a nightclub had his advances rebuffed by a woman and he then grabbed her by the neck aggressively, that would not be an offence under this bill. It would be an offence under some other bill – it could be common assault, but that has got a much lower penalty than do these non-fatal strangulation standalone offences. So the question that I put to the government is: shouldn’t the same bad act be punished equivalently under the law?

I understand the government says that family violence is a scourge, and I agree. I understand that the government – in fact this bill itself – refers to the fact that somebody in a family violence situation who is the subject of non-fatal strangulation is statistically much more likely to be subsequently murdered by that partner, and I agree with that. There is no argument from me about that at all. My argument is the same bad act generally should be punished equally under the law. I am all for punishing non-fatal strangulation in the family violence context, but why are we limiting it to family violence contexts? Why shouldn’t non-fatal strangulation be punished as a bad thing in itself across the board?

I look forward to the debate as it progresses, and perhaps government members can enlighten me and the opposition and the community more broadly as to why the same bad act can have very different consequences in law depending on whether it is being committed on a family member as defined or not a family member as defined. Again, this is not arguing any less protection for family members, it is simply saying that somebody who is willing to do that sort of thing to a stranger should be equally culpable as somebody who is prepared to do it at home. The way in which the bill defines ‘family member’ is the same definition as in section 8 of the Family Violence Protection Act 2008. It is relatively broad. It includes current or former spouses; domestic partners; intimate personal relationships, which do not have to be sexual in nature; children and parents, including stepchildren and step-parents and other relatives in some circumstances; and any other person reasonably regarded as being like a family member. My understanding is that that can also include housemates that share household expenses. So there is a relatively broad definition of ‘family member’, and I think that is appropriate.

I did ask the Attorney’s office for advice on how this may work in practice in certain circumstances. We are coming up to the holiday season, which can be a time of great joy for some families and can be a time of great tension for others, and we do know that instances of family violence do escalate around the festive season, which is terribly sad in itself. You could potentially see circumstances where two family members are fighting and one family member steps in to break it up and separate them. If that family member touches the throat or touches the neck of one or both people in separating them, have they committed an offence as proposed under the bill? I did ask the Attorney’s office whether there would be a defence in that circumstance, and I was advised that it may meet the statutory definition of necessity or extreme circumstances. I am not sure that it would, and as I say, what we all want to see is that this law has the impact we want it to have – that is, to protect vulnerable people, especially women. We do not want to see it being weaponised inappropriately in disputes. This is why the government does need to explain why the very broad definition is given and how that will work in practice, because we know what we want to achieve but there can be a gap between the collective minds of the legislators in this place and how the words appear on paper and then how they are interpreted by police in the first instance, by the Director of Public Prosecutions in the second instance and by the courts in the third instance. A lot can happen along those stages.

This is an important bill. This is a bill that has been too long coming, Joy’s law, and again I pay tribute to Renee, to Aaron, to Nadine and to Les. I also mention Les’s wife Annalisa and stepson Michael. This has been a very long journey for them. They have worked so hard and given so much of their time and of their emotion so that something good and something positive could come out of something so horrible as the death of Joy Rowley. But I do hope that Joy’s law will prove to be a fitting tribute to Joy and to the work of their family and that it may protect many, many women in this state going forward.