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Family Violence Amendments

Madam Speaker, I stand today to move two small but quite significant amendments to the bill under debate. I and the rest of the Canberra Liberals have agreed with this proposed legislation in principle. We want to have good laws in this territory that protect victims of family and personal violence. For this reason, both the Family Violence Act and the Personal Violence Act were unanimously approved last year by the Eighth Assembly, and I understand the desire for these two acts to be improved through amendment before they come into effect on the first of May this year.

The amendments that I am proposing deal specifically with the process of amending protection orders. A protection order can be amended by the court to make it stricter, by adding ‘further conditions, prohibitions or restrictions’ and/or by ‘extending ... the period for which the order remains in force’. A protection order can also be amended to make it less strict, by ‘deleting conditions, prohibitions or restrictions’ and/or ‘reducing the period for which the order remains in force’.

Both pieces of legislation that were approved in 2016 allow the Magistrates Court to amend a protection order only if three conditions are met. Two of those three conditions deal with guaranteeing that the protected person and any children involved are not put at risk as a consequence of an amendment.

The bill that we are debating today would introduce a significant exception to this process, namely, that if the parties to a protection order all agree that the order should be amended, ‘the Magistrates Court must amend the order regardless of whether or not’ these three conditions have been met or the court has even considered them.

This means that if a woman, for example, has a protection order against her partner, but then later she and the partner both apply for the protection order to be made less strict, the Magistrates Court is required to grant the amendment, no matter what. Consent of the parties is enough to compel the court’s decision.

The Attorney-General’s office has explained that the purpose behind this change is, quote, ‘to make it simpler to amend a protection order where everyone agrees it should be amended’, in order to, and I quote again, ‘facilitate amicable resolution of protection order disputes, something which is under current legislation unnecessarily difficult’.

I understand this rationale and certainly agree that legislation should generally avoid creating unnecessarily difficult burdens. Nevertheless, I have had multiple stakeholders contact my office with concerns over the Government’s proposed amendment. Those expressing concerns have included academics whose research deals with issues of child protection, those involved in community organisations, and lawyers who have worked specifically with domestic violence victims.

As the head of one community organisation explained, Madam Speaker, there are simply ‘too many’ cases where the alleged perpetrator has successfully coerced or sweet-talked the other party into consenting to an amendment, and then the offender has sought to take revenge or has simply got out of control again. In these cases, the bill before us would force the Magistrates Court to amend the order ‘regardless’.

When I raised this concern with the Attorney-General’s office, I was told that two processes are already in place to protect children and protected parties in these instances. First, quote, ‘deputy registrars will question the orders in cases where it looks like there might be duress or threats’. This sounds good in theory, but it presumes that deputy registrars will somehow always detect coercion, and it may ignore the possibility that a protected party may genuinely wish to amend an order despite good evidence that doing so will put that party and/or innocent children at risk.

The second process that the Attorney-General’s office suggested as a safeguard is that, quote, ‘if there is any indication on the facts that a child’s safety is in issue, the Magistrate or Registrar will make an immediate child protection report [to] Child and Youth Protection Services’. Think about this for a minute. In fact, Madam Speaker, I ask the members of this Assembly to put themselves in the place of the magistrate or registrar in this case. An application to amend a protection order comes before you, and both parties to the order have consented to its amendment. At the same time, you have every reason to believe that amending the order will put a child at risk.

What must you do? Amend the order anyway! But don’t worry too much about that because you can then ‘immediately’ file a child protection report with Care and Protection and let an already overworked government department handle the problem ... and hope, of course, that they are actually able to do so before anything serious happens to the child in question.

Now put yourself in the shoes of the child. Could you reach any other conclusion than that the court has failed you?

Madam Speaker, why are we requiring Magistrates and other officers of the court, good men and women whom we employ specifically to exercise their judgement, to surrender their judgement on these matters? And if tying such officers’ hands is not enough, we then burden them by telling them it’s OK as long as they then wash those tied hands of the problem by taking the extra step of filing a report explaining that they have just compromised a child’s safety.

Even if these two processes somehow worked flawlessly – and I have serious reservations that they ever could – it seems far better to both me and the stakeholders that have shared their concerns with me, that these processes be reflected and supported in the law itself. That way, the law could at least advocate and protect the processes, as well as provide for child protection when needed, by enabling the Magistrates Court to amend as requested by the parties, to amend in some other way, or not to amend a protection order at all, in the event that these processes have been compromised.

My proposed amendments address these issues in two ways. First, by changing the language so that the Magistrates Court may (rather than must) amend an order regardless of the three conditions having been proven and considered. This change restores to the court its mandated role of exercising responsible judicial oversight in these matters.

In addition, a new subsection has been added, which states that the Magistrates Court ‘must not amend the order if it can be reasonably foreseen that the amendment will place a protected person or child of a protected person at risk of harm by the respondent’.

These small but very important changes will permit the Magistrates Court to amend protection orders effectively and less onerously where there are genuinely no safety risks and the amendment is to the benefit of all parties and in the best interests of the child, without requiring any additional investigation or consideration. On the other hand, the new subsection places a protection for cases where the safety of children and vulnerable parties may be at risk, stipulating that the Magistrates Court must not amend the order in these cases even if all parties have consented.

As is often the case in legislation, the tension here is between the desire to simplify the process of amending a protection order in straightforward cases and the desire to protect children and other vulnerable persons in cases where poor judgement or coercion may compromise the process. This is the often-occurring tension between convenience and safety.

Where the current acts seem to favour safety, the bill under debate appears to err on the side of convenience. My proposed amendments to this bill seek to establish a point of balance between these two competing desires. Madam Speaker, I commend these proposed amendments to the Assembly.

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