Legislative Council

GREENS BILL: Domestic & Family Violence - Modernising Legal Defences - passes 2nd reading

November 29th, 2017

On the 29th of November, Mark brought his Private Members Bill - Criminal Law Consolidation (Defences - Domestic Abuse Context) Amendment Bill 2017 - to a second reading vote.

The following is a copy of the Hansard transcript of the debate.

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2017.)

The Hon. A.L. McLACHLAN (22:17): I rise to speak to the Criminal Law Consolidation (Defences—Domestic Abuse Context) Amendment Bill. This bill was introduced by the Hon. Mark Parnell on 18 October and proposes amendments to the Criminal Law Consolidation Act. In essence, it seeks to implement a number of recommendations contained in the recently released South Australian Law Reform Institute's report on the operation of provocation defences in South Australia in domestic violence situations. It is our understanding that this report represents part one of the institute's consideration of the law on provocation, and that we can expect a further report dealing with expanded self-defence criteria to be released next year.

The Liberal Party traditionally supports the second reading vote and for a bill to go into committee, and we will be supporting the second reading this evening. In relation to the law of provocation, the Liberal Party acknowledges that this is an area where there needs to be considerable reform. It is looking forward to the second report of the South Australian Law Reform Institute. It believes that, when considering reform, both sections of the institute's report will be required because it is an integral area of law which not only deals with provocation but also with self-defence and, importantly, as we have debated many times tonight, mandatory minimum sentencing requirements for certain convictions. I indicate that the Liberal Party will support the second reading.

The Hon. J.A. DARLEY (22:19): I understand this bill will create a new defence for individuals who have been victims of family or domestic violence. The bill is based on a recommendation from the South Australian Law Reform Institute and will enable those who have been victims of family or domestic violence, who commit an offence as a result of their victimisation, to use this as a defence against their crime.

Domestic violence is a scourge on our society, and whilst I am glad there is more awareness of the matter, it is clear that much more needs to be done. Many people do not understand domestic violence and often wonder why the victim does not leave. Physical violence is much easier to understand and empathise with; however, it is often emotional and psychological manipulation that weighs heaviest on a victim. Everyone knows that it is unacceptable to hit or beat someone, but when the abuse is silent and has no physical evidence, there may be doubts that it is occurring, even from the victim themselves. This is why I am pleased that the Hon. Mark Parnell's bill specifically includes psychological, social, cultural and economic factors in determining domestic abuse.

The bill also makes it clear that a person is still able to rely on the defence even if a person is responding to a threat that is not imminent and that the cumulative effect of the abuse is to be taken into consideration as evidence of abuse. This is very important because I know there are situations where it may seem that a person suddenly snaps for no apparent reason or reacts in a disproportionate manner to a seemingly innocent event. In these situations, a person may be painted out to be unreasonable or as having gone crazy. However, if a person is continually in a pressure cooker situation, it is absolutely understandable that they might suddenly respond or behave in a manner that might not seem rational. This is often simply frustration, fear and anger manifesting itself in a physical form.

Domestic violence victims may not always present as you would expect. They may seem intelligent and together on the outside but inside be filled with self-doubt. In my view, it is up to the community to support those who have the courage to speak out about their experiences and assist perpetrators to acknowledge the damage they have caused. That way, perpetrators can get help and be educated on what is a healthy, respectful relationship. Unfortunately, there are some perpetrators who see nothing wrong with their behaviour. This is disturbing. Even more disturbing is when bystanders choose to do nothing by turning a blind eye or, even worse, support the perpetrator.

People who commit these types of offences are often master manipulators. I have encountered situations where a perpetrator has managed to turn a family against the victim. This is why organisations such as the White Ribbon Foundation are so important, as they continue to educate and raise public awareness about the issue. As they say: stand up, speak out and act to stop domestic violence and abuse. Advance SA is very happy to support this bill and congratulates the Greens and the Hon. Mark Parnell on bringing this to the parliament.

The Hon. M.C. PARNELL (22:22): I will briefly sum up the debate. I would like to thank the Hon. John Darley and the Hon. Andrew McLachlan for their indications of support. I did say to members that I was keen to just have this bill go through the second reading stage rather than through committee, and that was in recognition of the fact that it is a very complex area of law and there is still a lot of work to be done, in particular the work of the South Australian Law Reform Institute that has been alluded to.

I want to put a couple of things on the public record. There were three organisations and individuals who contacted me after I introduced the bill who have made quite substantial submissions. The Law Society sent in a very thorough submission. They have analysed the bill in great detail. There is a six-page submission, which I am certainly not going to read in the report, but they, in conclusion, agreed that this was a complex matter and that more debate was needed. I am very grateful to Tony Rossi, the President of the Law Society, who said:

…the Society recommends revised drafting having regard to the points raised in this letter and a process of ongoing consultation. The Society would be pleased to be involved in such a process.

I welcome that indication of support for ongoing debate. As I have said, I have not sought to push this to its final conclusion tonight because I know that more work is needed, but I am heartened by the fact that members of this place are keen to keep the debate going; that is important.

I also received correspondence from Michael O'Connell, the Commissioner for Victims' Rights. I will read a short paragraph that he wrote. He says:

In relation to the bill's intent, I submit, controversy exists regarding the nature of and motivation for women's violence against their intimate partner. On the one hand, studies show women often resort to such violence in self-defence. Self-defence is frequently not a response to a one-off angry encounter, but prior there has been ongoing social isolation, recurring psychological and emotional abuse, which can be as destructive as physical abuse.

On the other hand, too many victims of domestic violence are treated as perpetrators because of their reactive, self-defence violence. We should avoid criminalising women, in fact any victim who is fighting back, who is defending themselves, their children or their animals against their violent partner. Self-defence in the context of repeated domestic violence can be a justified response. It can reduce harm—it can save lives.

I am grateful to the commissioner, who participated in a round table that I organised and is keen to keep this debate going as well. The final submission I would like to put on the record is from Kellie Toole, who is a senior academic in the Law School at Adelaide University and someone whom I have relied on a fair bit for advice in this area. She has offered a few observations, which I will quickly put on the record. She says:

I write in support of the Criminal Law Consolidation (Defences-Domestic Abuse Context) Amendment Bill 2017, as it relates to self-defence.

The current law of self-defence has always been difficult to extend to women who kill abusive partners. It is a significant human rights problem when the major complete defence in our criminal justice system is difficult to apply in appropriate cases involving one of our society's most disadvantaged groups. There have been various attempts to redress this problem across Australia, but they have been beset by problems. For example, it has been necessary to describe women as experiencing a psychological problem instead of reacting rationally to a real threat to life; 'special' defences have been proposed which place women in abusive relationships in a special category outside the general law; and special defences have been created which have been co-opted by violent men in ways not intended by the legislature. This bill avoids the pitfalls that have marred previous reform efforts.

Most importantly, this bill addresses the main impediment to abused women being able to successfully argue self-defence in appropriate cases, which is to clarify that self-defence can apply when a woman is responding to a threat that is not immediate. This is a real advance in understanding the effect of family violence, and the way women's reaction to violence often differs from men's reactions. It removes a gender bias in the law and improves equality before the law. It also has the benefit of providing an educative role about the extent, nature and effects of family violence.

Kelly Toole concludes:

Real reform in this area needs to be accompanied by review of the mandatory minimum non-parole period for murder and abolition of the partial defence of provocation.

Both of those are big ticket items that this parliament needs to address next year. We know that the South Australian Law Reform Institute will be producing another report on the law of provocation, and we also know that mixed in with that will be the sticking point of mandatory minimum non-parole periods, especially in relation to murder, so there is a lot more work to do.

I am very grateful to members for offering their support tonight for the second reading of this bill and, on behalf of the Greens, I say to members that I will certainly be bringing these issues back next year. We will probably wait to hear what the South Australian Law Reform Institute has to say, but this is too important an issue for this parliament not to address it. We are keen to learn from the mistakes that have been made in other jurisdictions and get this law right.

Bill read a second time.

For more information see a copy of Mark's second reading speech and Bill

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