1. I refer to your letter of 19 July 2018 in relation to the Statutes Amendment (Domestic Violence) Bill 2018 ( the Bill ).

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1 31 August 2018 TM;af The Hon Vickie Chapman MP Attorney-General GPO Box 464 ADELAIDE SA 5000 via Dear Ms Attorney Statutes Amendment (Domestic Violence) Bill I refer to your letter of 19 July 2018 in relation to the Statutes Amendment (Domestic Violence) Bill 2018 ( the Bill ). 2. The Bill seeks to amend the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Intervention Orders (Prevention of Abuse) Act The Bill proposes the following key legislative changes: 2.1 The creation of a new offence of choking, suffocation or strangulation in a domestic setting; 2.2 Allowing video evidence recorded by police to be used in court; 2.3 Increasing penalties for repeated breaches of intervention orders; and 2.4 Expanding the definition of aggravated domestic abuse to include more types of relationships (i.e. sibling, grandchild, person related according to ATSI kinship rules). 3. The Society was pleased to have the opportunity to discuss the Bill with Ms Kellie Tilbrook and Ms Madeline Church of your office on 7 August During this meeting it was noted that an underlying objective of the Bill is the identification of specific domestic violence offences, which will make these offences clearly identifiable on a person s criminal record. In particular, such measures will allow data in relation to domestic violence to be collected more efficiently by the Government. 4. The Society condemns violence and abuse against women and welcomes measures taken by the Government to address the serious issue of domestic violence in South

2 2 Australia. The Society provides comment below in relation to the key legislative changes proposed by the Bill. Creation of a new offence of choking, suffocation or strangulation in a domestic setting 5. The Bill seeks to amend the Criminal Law Consolidation Act to introduce a new offence of choking, suffocation or strangulation in a domestic setting. The Society understands that the Bill has been modelled on a similar offence introduced in Queensland under their Criminal Law (Domestic Violence) Act The Society is aware of research that has indicated that non-fatal strangulation is an important risk factor for homicide of women. A US study found that women who survive non-lethal strangulation by an intimate partner are almost 8 times more likely to be murdered at a future date. 1 The Society is aware that such research informs this amendment and appreciates the seriousness of this issue. 7. However, as discussed at the meeting of 7 August, the Society noted that strangulation could currently be captured under existing endangerment offences contained in section 29 of the Criminal Consolidation Act (i.e. acts endangering life or creating risk of serious harm). These offences are aggravated if the victim is or was a spouse or domestic partner. Penalties range from 18 years for endangering life, 12 years for serious harm and 7 years for harm. These offences require knowing that the act or omission is likely to endanger life/cause serious harm/harm and intent to endanger life/cause serious harm/harm or be recklessly indifferent to doing so. 8. The Society notes that the proposed strangulation offence will not require an intention to kill and carries a maximum penalty of 7 years imprisonment. The proposed maximum penalty is actually less than what might be available to the Court under the Criminal Law Consolidation Act. However, the Society notes your comments in the media with respect to this issue. In particular, you have noted that instead of being an attempted murder case where it may be more difficult to prove intent, the use of non-fatal force by strangulation is an offence in its own right, has a penalty in its own right, is easier to prosecute and easier to obtain a conviction At the meeting of 7 August 2018, this issue was discussed and the Society questioned the need to create an additional offence in light of the existing offences under section 29 of the Criminal Consolidation Act. It was noted by Ms Tilbrook that assault may understate the level of harm and provides no indication of the degree of potential danger to those viewing the criminal record of the accused. 1 Glass et al., Non-fatal strangulation is an important risk factor for homicide women. J Emerg Med. 35(3):

3 3 10. The Society understands that in Queensland, that while strangulation was already captured by existing offences, the stand-alone offence was considered necessary to highlight the prevalence of choking and strangulation in domestic violence cases, and the fact that it is often a predictor of an escalation of violence towards the victim. In the 12 months following the introduction of the stand-alone strangulation law in Queensland, almost 800 people had been charged with the offence While the Society considers that strangulation is already captured under our existing laws, it appreciates the reasons proffered by the Government with respect to the creation of a stand-alone offence. Admissibility of recorded evidence in domestic violence proceedings 12. The Bill seeks to amend the Evidence Act to allow prescribed recordings to be admissible as evidence when substantive charges for a domestic violence incident comes to trial. 13. The Society notes that it was recommended by the Social Development Committee in its report on Domestic and Family Violence in , that the Evidence Act 1929 be amended so that that evidence taken from a victim by police, using body cameras at the time of the domestic abuse incident, be admissible as evidence when the substantive charge/s come to trial. 14. The Society is aware that this recommendation informs the proposed legislative change and that the provision has been modelled on similar legislation enacted in NSW. 15. The Society welcomes any measure to make court processes easier for victims of domestic violence. However, the Society has noted in previous submissions its concerns with respect to the admission of this type of evidence. Enclosed for your information is a submission dated 5 September 2016 by the Society to your predecessor in relation to the Domestic Violence Discussion Paper. 16. It is well known that many complainants do not wish to proceed with charges against their partner for a variety of reasons. If a victim is aware that their evidence may be used later in Court proceedings, this may inhibit them from fully disclosing to police upon initial complaint A victim of domestic violence may inadvertently be dissuaded from involving police altogether if they feared that evidence may be subsequently used against their wishes. 3 Queensland Government 2017, 798 people charged in the first 12 months of new domestic violence offence, viewed 9 May 2017, 4 Thirty Ninth Report of the Social Development Committee. Report into Domestic and Family Violence. 12 April, 2016.

4 4 17. The Society notes that under the Bill, this evidence can only be tendered if the prosecution has informed consent of the person who experienced the abuse. However, if such consent is gained at the time of the incident, this could be problematic, as noted above, many complainants do not wish to proceed with charges and may change their position with respect to use of the evidence from the time of the incident. 18. The Society has previously noted its concerns with respect to footage taken by police upon their arrival in investigating an incident of domestic violence. Such evidence could be prejudicial as it is obtained in a heated situation, and the footage itself would more likely contain a recount of the incident by a victim as opposed to being a record of the incident giving rise to the charge. 19. Notwithstanding, the Society considers that having some flexibility in the Evidence Act to allow video evidence for those victims who wish to proceed with charges, but are unable to give evidence any other way may be appropriate in some circumstances. 20. This provision further highlights the need to have support available to victims of domestic violence in court processes so that more women are empowered to actively proceed with charges when abuse has occurred, and to ensure that women who do not wish to proceed against their partners are still protected should they choose to remain in the relationship. Intervention Orders 21. The Bill seeks to increase penalties for people who repeatedly breach an intervention order. The proposed changes double the current maximum penalties so that someone who breaches their intervention order 3 or more times could be jailed for 4 years or fined $20, The Society notes that the Bill proposes to insert a provision into section 28 of the Intervention Orders (Prevention of Abuse) Act that the rules of evidence do not apply. 23. The Society considers that any abandonment of the rules of evidence should be done with caution. It was noted by Ms Tilbrook at the meeting of 7 August that the rules of evidence have been excluded in order to facilitate the admissibility of police evidence (i.e. recorded evidence) with respect to applications for intervention orders. The Society was also informed that consultation had occurred with SAPOL and the Chief Magistrate in relation to this amendment. 24. The Society further takes this opportunity to raise the issue of expiry dates on intervention orders. In its submission of 5 September 2016, the Society noted its

5 5 concerns with respect to expiry dates on intervention orders on pages 4-7. South Australia remains the only jurisdiction in which a confirmed intervention order remains in place indefinitely until revoked by a Court. 25. The Society is concerned that the prevalence of indefinite orders which may no longer be required due to the passage of time or unchanged circumstances will place an increasing and potentially unnecessary burden on defendants, victims, courts, police and ultimately the tax payer. 26. While the Intervention Orders (Prevention of Abuse) Act allows for either the defendant or protected person to make an application to vary or revoke a confirmed order, many individuals may not have the knowledge or the means to avail themselves of this process, which requires an application to a Magistrates Court registry and payment of a substantial filing fee. 27. The submission of 5 September 2016 provides information with respect to the duration of intervention orders across other jurisdictions within Australia. The Society suggests that a legislative model similar to the ACT and Queensland could be adopted, whereby the Court determines a finite period for intervention orders of up to 2 years, but with the power to confirm a longer order if special or exceptional circumstances justify. 28. Furthermore, at the conclusion of the expiration period, a protected person or the Police, would be able to apply for an extension of the order if the circumstances are such that the order remains necessary for the protection of the person. This would also force Police to review orders periodically to determine whether they remain necessary, avoiding the proliferation of potentially redundant orders when circumstances have changed. Expanding the definition of domestic relationships 29. The Society notes that the Bill also proposes to expand the definition of an aggravated domestic violence offence to include a wider range of relationships, including a grandchild, sibling, carer, a personal related according to Aboriginal or Torres Strait Islander kinship rules or a member of some other culturally recognised family group. 30. The Society notes that the proposed amendment to the Criminal Consolidation Act is consistent with the broader definition of domestic abuse in section 8(8) of the Intervention Orders (Prevention of Abuse) Act and as such, considers the proposed amendment appropriate.

6 6 31. The Society further notes that the Bill proposes to amend section 8(4) of the Intervention Orders (Prevention of Abuse) Act to expand the definition of abuse to include: 31.1 Forced marriage; 31.2 Preventing the person from entering the person s place of residence; and 31.3 Taking an invasive image of a person and threatening to distribute the image without the person s consent. 32 While the Society considers that Section 8(4) is sufficiently broad, it does not object to the inclusion of these three examples. Data collection 33 It was noted by Ms Tilbrook that it is intended that the strangulation offence and expanding the definition of aggravated domestic abuse will provide more indicators that may be used in the Domestic Violence Disclosure Scheme, which is to commence on 1 October 2018, as well as for general data collection. 34 The Society acknowledges the importance of data collection in relation to domestic violence. Presently there are a number of sources of data in relation to domestic violence that could be utilised. For example, the Society would be interested in learning more about the success of the domestic violence court ordered programs and how effective they have been in preventing further domestic violence offences. 35 The Society notes that in South Australia there are dedicated Family Violence Courts within the Magistrates Court. Usually, family violence offending is noted by categorisation as 'aggravated assault against child or spouse' or 'breach of intervention order'. Section 5AA(1)(g) of the Criminal Law Consolidation Act specifies the defining aggravating features relating to family violence which can aggravate any applicable charge. The Society suggests that statistics ought to be readily available through such categorisation and/or through being listed in the Family Violence Court. General comments 36 The criminal justice process is just one aspect of an integrated response to domestic violence. While criminal justice responses are important, so are service responses such as counselling and housing, as well as policies and programs that address the underlying factors that lead to domestic violence. 37 The reasons for non-reporting of incidents of domestic violence are complex and include a number of factors including fear of the perpetrator, fear of not being believed

7 7 or of being blamed, feelings of confusion, shame and embarrassment, fear of psychologically reliving the incident, or a reluctance to acknowledge the incident ever occurred Given that psychological responses to domestic violence can be complex, experts argue that proactive support services focusing on therapeutic emotional and psychological interventions may be more effective in encouraging disclosure and providing assistance than the criminal justice system in many instances Notwithstanding, any legislative measures that improve upon existing processes within the criminal justice system, particularly by empowering victims of domestic violence to participate, as well as measures aimed at changing perpetrator behavior/reducing reoffending are welcomed by the Society. I trust these comments are of assistance. We would be pleased to provide further comment or assistance. Yours sincerely Tim Mellor PRESIDENT Phone: (08) President@lawsocietysa.asn.au 5 Phillips, J., Dunkley, A., Muller, D. and Lorimer, C., Domestic violence: issues and policy challenges. Parliamentary Library. 6 Ibid.