Legislative Council Thursday 16 November 2017

Ms FORREST (Murchison ) - Mr President, I think everyone in this place and in the broader community understands the harm that family violence perpetrates.  We need to ensure that adequate protections are there, remembering that there is always a perpetrator and a victim, and sometimes those roles can swap.  You are not always sure exactly who the victim is.

The police have taken a proactive and sensible approach to this.  They always believe the victim because it is usually a case of making sure the victim is safe.  We have seen some shocking examples of family violence resulting in serious injury and death on far too many occasions, mostly of women at the hands of men.

I wanted to read an article that Bernard Keane wrote on 7 November.  It is not directly related, but it is about family violence and it highlights the reasons we need to take a serious approach to family violence.  As the member for Windermere was alluding to, the importance of electronic monitoring may have added benefits.  I think it is a great initiative.  It is an important step.  The article published in Crikey was called, 'The compelling link between domestic violence and mass murder'.  He says -

There's a well-demonstrated connection between domestic violence, terrorism and mass shootings -- one the government refuses to accept. 

In a society apparently obsessed with preventing terrorism, where the Prime Minister lectures us that we should never 'set and forget' on security, where we've lost some of our most basic rights in the name of enabling security agencies to stop attacks, when will we act on the clear link between domestic violence and acts, or attempts, of mass-casualty violence? 

Let's consider some key facts:

•           Devin Patrick Kelley, perpetrator of the Sutherland Springs massacre, had been convicted of assaulting his family and had a history of harassing a former partner; 

•           Las Vegas mass murderer Stephen Paddock had a history of publicly abusing his girlfriend; 

•           London Bridge terrorist Rachid Redouane had a history of assaulting his wife;

•           As did Westminster Bridge terrorist Khalid Masood, who had a long history of violence;  

•           Mohamed Lahouaiej-Bouhlel, perpetrator of Nice truck attack in 2016 had a history of violent offences, including assaulting his then-wife; 

•           Omar Mateen, perpetrator of the Orlando shooting in 2016, assaulted and imprisoned his wife during a four-month marriage she then fled; 

•           Man Haron Monis, perpetrator of the Lindt Cafe siege was being prosecuted for sexual assault and accessory to murder of his former wife at the time of the siege;

•           Tamerlan Tsarnaev, one of the Boston bombers, had assaulted his then-girlfriend; and 

•           Women and children are (grossly) disproportionately targeted in mass shootings in the United States, with 57% of mass shootings involving partners or family members.  For example, in September this year, Spencer Hight, who had a history of assaulting his former wife, murdered her and eight other people at a BBQ in Plano, Texas.

Can we expect the government to take any action?  Well, in 2014, Attorney General George Brandis said that any link between terrorism and domestic violence was 'foolishly conflating two completely unrelated issues'.

Everyone is entitled to their view on this, but I think any action we can take in holding perpetrators of family violence to account will definitely assist the victims.  If there are these links to be proven, and as yet they are not proven, there could be a much broader community benefit around this.  It is a positive step in what we are doing here.

The member for Windermere talked extensively about the introduction of electronic monitoring and I was relating to that particular point.  I want to raise a concern raised during the briefing - and I thought the member for Windermere might have touched on this but did not.  It is in clause 5 of the bill, about the effect of failure to submit evidence.  I am no expert in this field and I know there are others more learned in this area, but it does concern me where it says

If -

(a)     a person is charged with a family violence offence (the first charge) in a court of summary jurisdiction but is acquitted because the prosecution has informed the court it will not be offering any evidence in support of the charge; and

(b)     the person is charged with another family violence offence (the second charge), whether in a court of summary jurisdiction or on indictment -

that acquittal does not prevent the admission, in a hearing on the second charge, of first charge evidence as evidence of the relationship between the person and another person, tendency evidence or coincidence evidence. 

It says what tendency evidence and coincidence evidence are, which are defined in the Evidence Act.  I will read those definitions because I believe it is relevant.  A definition of 'tendency evidence' is -

(1)     Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of a person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -

(a)  the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b)  the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)     Subsection (1)(a) does not apply if -

(a)  the evidence is adduced in accordance with any directions made by the court under section 100; or

(b)  the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Coincidence evidence is defined as - 

Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is probable that the events occurred coincidentally, unless -

(a)  the party seeking to adduce the evidence gave reasonable notice in writing to each other party or the party's intention to adduce the evidence; and

(b)  the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

It goes on to say it is the same as the tendency evidence.

As I am not a lawyer and not operating in the court system, it is hard to understand what this means in this case.  Listening in the briefing - and, Mr President, you actually asked some questions about this from your legal background and you also quoted former magistrate, Mr Hill, who expressed concern that this could be detrimental to people who had a claim or a charge made but never proven.

Mr Valentine - That is right.  Untested.

Ms FORREST - Yes, and never convicted of it.  The charge may have been put or the claim may be made.  Some of us know of instances where a teenage child is not particularly happy with the things at home and seeks to exert their authority and make a false claim.  They would have to convince the court the claim is true and hope a court would be able to see through that with cross-examination.  The risk is there.

It concerns me about the implications and I would like the Leader to address this more fully in her reply.  I will wait for the Leader's response, but I believe there should be an amendment to this legislation to include in the review proposed on the use of electronic monitoring, an assessment of this clause to ensure no unjust outcomes.  A review will be done on the electronic monitoring.  If the bill was amended to include a review into this aspect, if there were circumstances where unjust or adverse outcomes are occurring as a result of this amendment to the principal act, then it could be addressed.  It could be identified in a court.  A magistrate might identify it and speak publicly about it and then an amending bill could be brought in.  It is important there is a proactive approach to this, particularly in light of concerns raised.

I will be interested to hear what the Leader has to say in response to my comments.  I assume it will get into the Committee stage.  If that is the case, I would seek we report progress when we get to that point.  It is important an amendment be considered to enable this.  Generally the intention is right - ensuring victims of family violence are given as much protection as we can.  One more serious or even minor injury, particularly a death from an incidence of family violence is one too many and we cannot stand by and let these things happen.  I commend the Government on its actions.  Since Rosie Batty was the Australian of the Year, she has shone a light on family violence and a lot has been done.  I commend the Government on taking it seriously by funding and continuing the legislative reform.  Our former leader, Vanessa Goodwin, was dedicated to this sort of reform and it is good to see it continuing.  We need to be cautious so we do not inadvertently cause harm to others - I will not say 'perpetrators' as we are not sure they are - but others by trying to fix the problem.  There are always two sides and we have to ensure the victim is protected and has their rights but also the accused has rights and we not override those.