MS TIERNEY (Minister for Training and Skills) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the ‘charter’), I make this statement of compatibility with respect to the Family Violence Protection Amendment Bill 2017.
In my opinion, the Family Violence Protection Amendment Bill 2017, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.
Overview of the bill
The bill amends the Family Violence Protection Act 2008 and various other acts, including the Criminal Procedure Act 2009, the Magistrates’ Court Act 1989, the County Court Act 1958 and the Coroners Act 2008, to implement a number of recommendations of the Royal Commission into Family Violence. The bill also includes two additional amendments to the Family Violence Protection Act that were not explicit recommendations of the royal commission.
Also included in the bill are amendments to the Public Health and Wellbeing Act 2008, to assist in creating a stronger leadership role for local government in preventing and responding to family violence.
Human rights issues
Human rights promoted by the bill
The amendments to the Family Violence Protection Act included in the bill will make significant improvements to the system of family violence safety notices and family violence intervention orders, and the response of the justice system to family violence, to maximise the safety of victims of family violence, including children.
Through these amendments, the bill promotes a number of charter rights, including the right to life (section 9), the right to protection of families and children (section 17), the right to security of the person (section 21), cultural rights (section 19) and the right to a fair hearing (section 24).
The right to life encompasses the right not to be arbitrarily deprived of life. This right includes a duty on public authorities to take appropriate steps to protect a person’s right to life in certain circumstances.
The protection of families and children provides that the family unit is a fundamental group in society, and that families are entitled to be protected by society and the state. Further, every child has the right to protection, without discrimination, as is in their best interests, in recognition of a child’s special vulnerability because of their age.
Every person is also entitled to the right to security, which includes a duty on public authorities to protect a person’s physical security in certain circumstances where there may be a real and immediate risk to life.
The cultural, religious, racial or linguistic background of individuals in the community, including the right to enjoy their culture, to declare and practise their religion and to use their language, is also protected by the charter. The cultural rights of Aboriginal persons are specifically protected, with the charter providing that Aboriginal persons hold distinct cultural rights that must not be denied.
The bill promotes these rights by:
extending the maximum duration of family violence safety notices from five days to 14 days, to provide victims with an opportunity to better prepare for court and access relevant services;
establishing a rebuttable presumption that children are either included in an affected family member’s family violence intervention order or protected by a separate order of their own, to ensure children are properly protected from further family violence;
clarifying the courts’ power to strike out appeals where the appellant does not appear, to assist in preventing respondents using the appeal process to further victimise the protected person;
adding criminal proceedings that relate to family violence offences to existing provisions that permit certain witnesses, including children, to give their evidence-in-chief via a prerecorded interview, to avoid them having to repeat their evidence in court;
allowing contravention of family violence safety notice and intervention order matters to be considered by the Magistrates and County Koori Courts, to provide a court environment that respects the practices and cultural traditions of Aboriginal people, and allows for more culturally appropriate sentencing orders;
establishing the Victorian Systemic Review of Family Violence Deaths unit in legislation, which through its in-depth investigations of family violence-related deaths and the provision of evidence-based research supports coroners in formulating prevention-focused recommendations that aim to reduce non-fatal and fatal forms of family violence;
requiring councils to include family violence measures in their municipal public health and wellbeing plans, to assist in creating a stronger leadership role for them in family violence prevention and response.
Human rights limited by the bill
Rebuttable presumption that children are included in family violence intervention orders
The bill amends the Family Violence Protection Act to create a rebuttable presumption that children are to be protected by family violence intervention orders, as recommended by the royal commission.
Clause 5 of the bill provides that before deciding whether to make an interim order, the court must consider whether there are any children who have been subjected to family violence committed by the respondent. Similarly, clause 8 provides that before deciding whether to make a final or an associated final order, the court must consider whether there are any children who have been subjected to family violence committed by the respondent or additional respondent.
Clauses 7 and 10 of the bill provide that where a court decides to make an interim, a final or an associated final order, the court must either include a child who has been subjected to family violence committed by the respondent or additional respondent in the order, or make a separate order for that child. Where an order that is made by the consent of the parties does not include a child who has been subjected to family violence committed by the respondent or additional respondent, the court must make a separate order protecting the child.
However, the court is not required to include the child in the interim order or make a separate interim order for the child if it is not necessary to do so to protect the child or ensure the safety of the child pending a final decision about the application. Similarly, the court is not required to include the child in the final order or make a separate final order for the child if it is not necessary to do so to protect the child.
If the court does not make an interim order for an affected family member, the court may make, on its own initiative, a separate interim order for the child, if satisfied that the child has been subjected to family violence committed by the respondent, and an order is necessary to protect the child pending a final decision about the application. Further, if the court does not make a final order for an affected family member, the court may, on its own initiative, make a final order for a child of the affected family member or the respondent, if satisfied that the respondent has committed family violence against the child and is likely to continue to do so or do so again. Similarly, if the court does not make an associated final order for an affected family member or an additional applicant, the court may, on its own initiative, make a final order for a child if satisfied of the grounds in new section 77B(2).
The right to equality (section 8), the right to freedom of movement (section 12), the right to privacy (section 13), and the protection of families and children (section 17) are relevant to these amendments.
The right to equality means that every person has the right to enjoy their human rights without discrimination, is equal before the law and is entitled to the equal protection of the law without discrimination. This right is qualified by section 8(4) of the charter which provides that certain special measures do not constitute discrimination, namely measures ‘taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination’.
While the right to equality is relevant to these amendments, as they protect children in a preferential manner on the basis of their age, the right is not limited because the amendments fall within the exception under section 8(4), being special measures to assist or advance the protection of children recognising that they are particularly vulnerable by reason of being a child in addition to having been subjected to family violence and potential ongoing risk. The amendments are also reasonable and justified as they are consistent with the intention of the Family Violence Protection Act, and promote the protection afforded to children under section 17(2) of the charter.
The right to freedom of movement provides that a person is entitled to move freely within Victoria, to choose where to live in Victoria, and to freely enter and leave Victoria.
A person also has a right not to have their privacy, family or home unlawfully or arbitrarily interfered with or their reputation unlawfully attacked. An interference with privacy is not unlawful if it is permitted by a law, and is not arbitrary if the restrictions it imposes are reasonable, just and proportionate to the end sought.
The charter protects families and children, providing that families are a fundamental group unit of society, and must be protected by society and the state. However, whilst the family unit is an important charter right (section 17(1)), so too is the right in section 17(2), that children are entitled to special protection.
These rights are relevant to the rebuttable presumption, to the extent that including a child in an order, or making a separate order for a child, may result in the respondent being excluded from a particular place, including their residence (thus limiting the right to freedom of movement), or having access to their child limited (thus limiting the right to privacy of the home and family, and protection of families and children).
Whilst the presumption may limit a respondent’s right to freedom of movement, right to privacy and right to the protection of families and children, any limitation is reasonable and justified in accordance with section 7(2) of the charter, because of the important objective of ensuring swift and effective protection of children who have been subjected to family violence committed by the respondent and the grave impacts on the safety, wellbeing and lives of children should they continue to experience family violence.
The amendments are necessary, and a reasonable response, to address the royal commission’s finding of disparities between the number of family violence incidents attended by police at which children are present, the number of children recorded by police as affected family members, and the number of children listed on original family violence intervention order applications. The amendments address the royal commission’s findings to strengthen the existing special provisions for children in the Family Violence Protection Act.
The royal commission considered the rights of respondents in making its recommendation, however concluded that on balance any limitation on the rights of respondents was outweighed by the need to provide proper protection to children who have been subjected to family violence.
This conclusion is consistent with the protection afforded to children under section 17(2) of the charter as it recognises that children who have been subjected to family violence (including through witnessing, hearing or otherwise being exposed to the effects of such violence) and are at ongoing risk should be protected either by their own family violence intervention order or by being included in an affected family member’s order.
To mitigate against any unnecessary limit on the rights of a respondent, the bill provides that the presumption will not apply if the court is satisfied that the inclusion of a child in an interim or final order, or the making of a separate order for the child, is not necessary to protect the child from family violence.
The amendments in the bill to the operation of family violence intervention orders are, therefore, considered to be compatible with the charter.
Extension of the duration of family violence safety notices
A police-issued family violence safety notice provides temporary protection for affected family members and also acts as an application for an intervention order. Currently, the first court mention date for an application commenced by a family violence safety notice must be within five working days of the notice being served on the respondent.
Clause 32 of the bill extends the maximum period for the first mention date from five working days to 14 calendar days.
The right to freedom of movement, right to privacy, and protection of families and children are relevant to the extent that a notice may include conditions prohibiting the respondent from being within a certain distance of an affected family member, or excluding the respondent from a particular place. As a result of the amendment, these conditions may operate for a longer period before being subject to judicial oversight.
Although extending the maximum period within which a family violence safety notice must be brought to court may limit the rights of a respondent, any limitation is reasonable and justified under section 7(2) of the charter as family violence safety notices:
operate for a limited duration;
can only be issued in circumstances that require an urgent response;
are necessary to ensure the protection and safety of victims of family violence, and the extended period promotes a victim’s ability to properly prepare for the intervention order application;
are subject to judicial oversight, as they also act as an application for a family violence intervention order.
The royal commission found that the extension of the duration of a notice from five days to 14 days is appropriate, given the need to ensure that the parties have sufficient time to prepare for court, to allow for appropriate specialist referrals to be made, and to avoid the risk to the victim of protracted or poorly prepared family violence intervention order applications.
Further, the bill provides an additional safeguard to limit the interference with a respondent’s right to access to their home, and to mitigate against the risk of homelessness, by providing that where a notice excludes the respondent from their primary place of residence and the police officer who applied for the notice believes the respondent may not have access to temporary accommodation, the first mention date must be as soon as practicable. Currently, the first mention date for a notice including an exclusion condition must be as soon as practicable.
Alternative service of applications and family violence intervention orders
Clause 28 of the bill provides that the court may order that a family violence intervention order or another document be served by a means other than personal service, where the court is satisfied that alternative service:
is likely to bring the document to the attention of the person to be served; and
will not pose an unacceptable risk to the safety of the affected family member, protected person or any other person; and
is appropriate in all the circumstances.
If a court has ordered when alternative service is taken to be effective, or the presumptions in the bill for service by post or electronic communication apply, clause 28 places an evidentiary burden on the accused to prove that they did not receive a copy of a family violence intervention order in any proceeding for contravention of the order.
The reversal of onus in clause 28 might have implications for the right to be presumed innocent under section 25(1) of the charter. The right provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law, whether the offence is an indictable or a summary offence. While applications for and making of family violence intervention orders are not criminal proceedings, once in place, a contravention of a family intervention order is an offence.
Whilst a law that shifts the burden of proof to the accused or applies a presumption of fact or law operating against an accused may limit this right, provisions that merely place an evidentiary burden on an accused with respect to any available exception or defence do not generally limit the right to be presumed innocent. This is because the prosecution still bears the legal burden of disproving that matter.
If the reversal is a limit on the right, the limit is reasonable and justifiable under section 7(2) of the charter because it relates to matters which are peculiarly within an accused’s knowledge. Further an accused in a proceeding for a contravention of a family violence intervention order may produce evidence showing that they did not receive a copy of the order. Therefore, the amendment is compatible with the right to presumption of innocence.
Strike out of family violence intervention order appeals if the appellant fails to appear
Clause 33 of the bill inserts a new provision in the Family Violence Protection Act enabling the court to strike out an appeal if an appellant fails to appear at a mention hearing or at the appeal hearing itself. This will clarify the existing inherent powers of the court to manage its procedure and will help ensure that intervention order appeals are not used by some appellants to further harass victims of family violence.
The amendment is relevant to the right to a fair hearing. However, the right to a fair hearing is not limited under section 7(2) because of the purpose of ensuring intervention order appeals are not used by appellants to harass victims of family violence. Further, the amendment includes fair hearing safeguards that enable an appellant to have a struck out appeal reinstated if the court is satisfied that their failure to appear was not due to fault or neglect on the part of the applicant.
Use of recorded evidence-in-chief
Part 6 of the bill amends the Criminal Procedure Act to add criminal proceedings that relate to family violence offences to existing provisions that permit certain witnesses to give their evidence-in-chief via a prerecorded interview. Use of recorded evidence-in-chief is currently permitted for witnesses who are children or persons with a cognitive impairment in criminal proceedings for sexual offences, indictable offences involving assault, injury or threat of injury, and certain summary assault offences. The amendment will enable children and persons with a cognitive impairment who are witness to family violence offences to also give their evidence-in-chief via prerecording.
The right to privacy might be promoted by the part 6 amendments. The amendments extend existing provisions about the use of recorded evidence. The existing provisions enable the court to allow recordings to be used for other court proceedings, but only if the court is satisfied that it is in the best interests of the witness to do so, having regard to the need to protect the privacy of the witness. This acknowledges that the recorded evidence-in-chief of a witness often contains deeply personal information, for example, the graphic details of family violence, and this must be considered by the court in determining whether it can be replayed.
The right to minimum guarantees for a person charged with a criminal offence under section 25(2) of the charter is relevant to the amendment, including to: have adequate time and facilities to prepare a defence; examine, or have examined, witnesses against them, unless otherwise provided for by law; and obtain the attendance and examination of witnesses against them, unless otherwise provided for by law.
The right to minimum guarantees in criminal proceedings and the right to a fair hearing are relevant to the part 6 amendments because they affect the manner in which evidence can be used in criminal proceedings for a family violence offence. Under section 7(2) of the charter, these rights are not however limited in this case, as hearings will remain fair for an accused person because the provisions include a range of safeguards. The existing provisions about use of recorded evidence-in-chief include requirements that a transcript of the recording is served in advance, the accused and their lawyer have a reasonable opportunity to listen to or view the recording, and the witness attends court to attest to the truthfulness of the recording and is available for cross-examination and re-examination. The court may also direct that the recording be edited or altered to delete the whole or any part of the contents of a recording that is inadmissible.
Extension of the Koori Court jurisdiction to include contraventions of intervention orders
Part 4 of the bill amends the Magistrates’ Court Act and County Court Act to extend the jurisdiction of the Koori Court divisions of:
the Magistrates Court to deal with contraventions of family violence intervention order or family violence safety notice matters;
the County Court to deal with contraventions of family violence intervention order, family violence safety notice or personal safety intervention order matters.
The amendments build upon the successful Koori Court model already in operation in the Magistrates Court and County Court.
The right to recognition and equality is relevant to the amendments to the extent that the jurisdiction of the Koori Court is limited to offences committed by Aboriginal people. Therefore, only Aboriginal people will be eligible to have their family violence contravention offences considered by the Koori Court.
However, the amendments do not limit the right to recognition and equality because they fall within the exception under section 8(4) of the charter. The purpose of establishing the Koori Courts was to assist Aboriginal people who are generally disadvantaged and overrepresented in the criminal justice system. The Koori Courts are achieving their aim of redressing this overrepresentation through the reduction of recidivism. Extending the jurisdiction of the Koori Courts to hear family violence contravention matters will support them to further reduce recidivism. Accordingly, these amendments are considered compatible with the charter.
The rights of an accused in criminal proceedings are relevant to the extension of the jurisdiction of the Koori Courts to consider family violence contravention matters, specifically the right to be presumed innocent, and the right to review of a conviction under sections 25(1) and 25(4) of the charter.
A guilty plea is a fundamental aspect of the Koori Court model. Therefore, an Aboriginal accused charged with a family violence contravention matter must plead guilty in order for it to be dealt with in the Koori Court. However, nothing in the Magistrates’ Court Act or the County Court Act limits the right of an Aboriginal person to be presumed innocent and to have their proceeding heard at first instance in the appropriate court or on appeal in the County Court, sitting other than as the Koori Court division. Therefore, the amendment does not limit section 25 of the charter.
Publication of information about family violence intervention orders by the Coroners Court
In specific circumstances, clause 44 of the bill lifts the publication restrictions in section 166 of the Family Violence Protection Act and section 534 of the Children, Youth and Families Act 2005 to allow the Coroners Court to publish certain information relating to the subjects of orders and proceedings under the Family Violence Protection Act in the Magistrates Court and Children’s Court.
These circumstances are where a coroner determines that the publication is in the public interest, and in the case of an order or a proceeding under the Family Violence Protection Act in the Children’s Court, no person likely to be identified by the publication is a child.
Whilst clause 44 is relevant to a person’s right to privacy given the publication of personal information, the interference is not unlawful nor arbitrary, as any publication:
is limited to information which relates to the subjects of orders and proceedings under the Family Violence Protection Act (and not other personal information);
must be in the public interest;
is only for the purpose of a coroner’s findings, comments and recommendations made after an inquest or investigation;
will assist the Coroners Court to undertake the public health and safety aspect of its work.
Further, the amendment supports the protection of children under section 17(2) of the charter by retaining the current publication restrictions under the Children, Youth and Families Act where the publication would likely lead to the identification of a child. This is in recognition of the sensitivities involved in disclosing information relating to orders made by or proceedings in the Children’s Court.
For these reasons clause 44 of the bill is compatible with the charter.
The Hon. Gayle Tierney, MP
Minister for Corrections