Legislative Council Thursday 1 November 2018

Ms FORREST  (Murchison) - Mr President - 

On average at least one woman is killed every week at the hands of a current or former partner in Australia.  Last month the numbers were even more alarming.  Nine women were killed in October - seven allegedly in the context of a current or former intimate relationship, the other two also suspected to have died at the hands of male perpetrators.

What are we doing?  We are trying to do some more here.  That was a quote from today's edition of The Conversation.  It goes on -

While these deaths are a disturbing reflection of the pervasive nature of violence against women in Australia, they have largely gone unnoticed.  Aside from a small number of female journalists who called on Australia's leaders to address the crisis, the media more broadly, as well as governments and the wider public, have mostly remained silent.

I know much more public attention has been paid to this issue in recent years particularly since the absolutely tragic death of Luke Batty, and Rosie Batty, his mother, being awarded Australian of the Year.  That is some years ago now and we are still seeing at least one woman a week killed in Australia by a former or current intimate partner.  Last month we saw nine in one month and they are the ones we know about.  There is much more that needs to be done. 

I will address my mind to the bill, but this is important too in the context of the reason I will be supporting this legislation.  

The article in The Conversation goes on -

Research suggests that campaigns aimed at raising awareness about domestic violence, such as the federal government's Let's Stop it at the Start campaign, can increase public understanding of gendered violence and types of support available for those affected.  Evidence of this can be seen in the substantial increase in calls to police and applications for domestic violence protection orders, following the roll-out of awareness campaigns in recent years.

We are definitely seeing that is the case in Tasmania; since Tasmania, in many respects, led the way with our family violence laws, we have seen many more reports.  I suggest that does not mean there are more instances.  In many respects, there may be, but it is hard to tell.  Women are now feeling more empowered to come forward and report it - and men too, but we are talking here predominantly about women being the victims of family violence.

The article goes on -

However, efforts to change public attitudes towards domestic violence, especially attitudes ascribing blame to victims, have been less successful.  The National Community Attitudes Survey shows persistent victim-blaming attitudes in society when it comes to this issue.  This is concerning because research shows a clear link between victim-blaming attitudes and the perpetration, as well as tolerance, of domestic violence. 

Campaigns need to go beyond communicating what constitutes domestic violence in intimate relationships and where to get help. 

We have done a good job communicating what family violence is.  Again, Tasmania has acted proactively in this space with economic and emotional abuse and intimidation being recognised.  I know that is not the case in many jurisdictions.  We have been good at describing what family violence is and what constitutes family violence and where to get help. 

I have recently been assisting a young woman who lives in Hobart.  She came to see me as a result of her father, who is a constituent of mine, contacting me.  She knows where to get help; she has accessed many avenues of help, but her life is potentially still at risk.  I cannot imagine for a moment what it would be like to live in her body.  She has had to create a secure room in her own home into which she can lock herself and her children to avoid being killed.  Imagine living like that.  Can any of us imagine what it is like living like that unless you have lived it yourself?  I have not, thankfully.  I cannot even begin to imagine the constant fear she lives with.  She knows where to get help, she has taken measures to try to secure her safety and the safety of her children, but the fear is always there and she is always looking over her shoulder.

The article goes on, talking about the campaigns that are currently being run -

They need to explain how and why this type of violence can affect anyone.  And they need to illustrate how perpetrators control their victims and manipulate those around them.

Mr President, it is important to realise that perpetrators control their victims and also manipulate those around them.  They fool others into believing they are wonderful, upstanding citizens - the perfect husband, father, partner, whatever they are.

The article goes on -

By failing to do so, we allow domestic violence to remain an issue solely of concern to victims, making it less worthy of public concern.

I think we have moved a little further from that comment -

A narrow focus on victim experiences and awareness creates a false and dangerous sense of security among the general public.  It also perpetuates the assumption that domestic violence only impacts those who make 'poor relationship choices'.

We hear that in the community, 'Oh, she always chooses partners who beat her up.  It is her fault really, she should pick blokes that will not bash her up.'  You do hear it; you hear it time and time again - victim blaming; it is not okay -

And it implies that a woman's choice in partner or her behaviour in a relationship plays a role in the domestic violence she experiences.

Again, you will hear these comments, such as if she did what most other women do, if she did not demand to go out with her girlfriends once every weekend or whatever she might be 'demanding', it would not happen to her.  No, it is never okay.

The article goes on -

Research clearly shows the behaviour of victims has little bearing on the likelihood of domestic violence in intimate relationships.  Domestic violence can happen to anyone, regardless of age, race or socioeconomic status.

We know this.  Sometimes I think we can risk forgetting it and putting victims of family violence into a particular box to suit our comfort levels -

Highlighting how perpetrators manipulate their victims can be effective in bringing this to light.  Perpetrators tend to be charming, manipulative and extremely skilled at image management.  They are rarely openly abusive from the start.  By the time their abusive behaviours become obvious, they have frequently isolated their victims and manipulated others into perceiving them as a good partner.

They are very skilled at this sort of behaviour.

The article then has a heading:  'What can we do better?'  It says -

Awareness campaigns should reinforce why domestic violence is everyone's business, not just a problem for those directly affected. 

Men play a crucial role.  While men living in Australia are far less likely to be killed by an intimate partner, especially if they have never been abusive to that partner, women have a one in four chance of experiencing emotional, physical and/or sexual violence in at least one of their intimate relationships.

Instead of responding to awareness campaigns with questions about why male victims are overlooked by society, men need to become a voice in this fight.

I have heard it in this place many times and I almost feel obliged myself to say, 'Oh, and men are victims too'.  That is distracting and diverting from the real underlying problem that men need to be a voice in this fight and step up. 

Victoria has a website called 'Respect Victoria' and I encourage members, if they have not already, to have a look.  It gives some really good information about how men can play a role in addressing this.  I went to the website; the home page has a great deal of information, including videos and suchlike, but it says many people are surprised to learn how prevalent family violence is in our communities.  One in three women has experienced physical violence and 90 per cent of Australian women with an intellectual disability have experienced sexual abuse.  I am not sure if everyone was listening then, but 90 per cent of Australian women with an intellectual disability have experienced sexual abuse.  How appalling.  What is wrong with us that we do not even know about it?  I did not know that figure.  I did not know that 90 per cent of women with an intellectual disability had been sexually abused.  That is appalling and disgraceful.

One in four women and one in seven men are experiencing emotional abuse by a current or former partner.  One in four women.  There are more than four women in this place.  At the moment, we have a number of women in the back corner there.  The number of women in this Chamber at the moment - one in four - look around, it must be happening to some of us, if not a number of us.  That is the statistic. 

So why is this happening?  I quote from the website -

You may also be surprised to learn the main drivers of family violence are gender inequality, discrimination and marginalisation.  That means things like sexist jokes, racist comments, homophobic attitudes, discrimination and financially controlling another person drive family violence.  These behaviours don't necessarily make a person violent but they do create a culture that enables and supports violence.  Respect Victoria acknowledges the important work of the sector in addressing this culture and reflects on the delivery of recommendations arising from the Royal Commission into Family Violence.

It is well worth going to the website, sharing it with all our friends and family and, particularly, the men in our lives.  We need men to take the lead on this.  We need men to stand up and call it out.  I think every man - and women to some extent, but certainly every man - who has allowed a sexist, a racist, a homophobic or sexually inappropriate comment to pass without calling it out needs to look themselves in the mirror and think, 'I should have done better on that'.  Stand up, call it out.  Until that happens we are not going to make the progress we need.  It is hard reading and challenging, but we all have a responsibility.  I look at myself in the mirror and I have let things go by.  You think, 'Oh I probably should not create a scene here.  That person is a different generation - I suppose he thinks it is okay to say that.'  No, it is not.  I made a decision some time ago I would stand up and call things out.  It does not always make you popular but my intention is not to be popular, it is to try and face up and address this challenge.  Some people will not like it because it shines a light on their behaviour, but we need to do it and men need to do it.  Men need to do it in locker rooms at sports clubs.  They need to do it in pubs.  They need to do it at boardroom tables.

I was listening to a woman the other day at a women's leadership function and I heard an incredible story of a woman who is very competent and capable presenting as part of a board with international representation.  A relatively young woman, she required a hysterectomy and told another member of the board the reason she had some time off was because of surgery.  There was some comment made about her being not quite as lively and energetic, because she was still recovering.  It takes quite a while - usually about six weeks - to recover from such surgery.  One of the other men said, 'Oh, it doesn't matter.  She's had an operation.  She is just like one of us now.'  Can you believe that was said?  None of the other men sitting around the table called that out.  They just, 'Ha, ha, ha', laughed about it, moved on.  We are talking here about the top of the corporate world.  It is everywhere - it is everywhere.  Let us all take responsibility, and I call on my male colleagues, particularly, to do their bit and call it out.

Mr President, that is the reason I feel so passionate about this.  Really much more work needs to be done.  We have done many really great things in this space.  We have focused on what it is and where the support is rather than prevention.  This bill is all about dealing with it after the fact in many cases.  It is not the role of legislation necessarily to deal with prevention as such, but it shines a light on the fact that family violence is not a one-off occasion, and that is an important aspect here - it often involves many different forms of abuse and violence.

In many cases, victims of family violence find it very difficult to stand up to their partner.  The research is very clear that the riskiest time for a woman in terms of whether she may be killed by an intimate partner is when she decides to and then when she leaves.  It is two times - when she makes the decision to leave, she becomes particularly vulnerable, and when she actually leaves, she is extremely vulnerable.  When women are pregnant, their risk increases, which is odd in a way - you would think that their male partner would wish to protect them and their own baby at that time but that is not the case.

This bill is to create a new offence of persistent family violence.  While, yes, many other offences fit into family violence legislation - as I said, we also have economic and emotional abuse and intimidation included in our legislation, which is a very positive step - many of these things occur concurrently and it picks up a pattern of behaviour.  So a woman does not have to go and press one charge or one event, they can demonstrate abuse over a period of time and then that person can be charged under this new offence which recognises the ongoing corrosive nature of family violence.

Mr President, a person charged with this offence of an unlawful family violence act will go before the court and a judge and jury.  It is a serious offence.  I know the Law Society of Tasmania raised particular concern that when the definition is linked back to the Family Violence Act, because of the serious nature of the outcome of this offence, it would pick up some of what I would hesitate to call 'minor breaches' of family violence orders or police family violence orders because the orders are there for a reason.  But for the purpose of this discussion about the Law Society's concerns for more minor breaches where there may have been a mutual discussion between the two parties and one asked the other to come and collect children or do something that does breach the order but there was no harm intended, there was no intention to assault the other person or to threaten or coerce them, or abuse them in some other way, economically or emotionally or to damage the property of the person when they arrive there, for example.

The Director of Public Prosecutions has a requirement in the act to consider each charge the police wish to bring under this provision, where a prosecution for an offence against this section cannot be commenced without the written authority of the DPP.  We also know the DPP will prepare guidelines.  We know he has a draft set of guidelines, and I thank the Leader's office for providing a copy of that.  It was helpful because it did address one of the major concerns of the Law Society that where there was a breach of a family violence order, but there was no intent to perpetuate the harm, that could see someone with a very serious charge before the Supreme Court.  They thought that was an overreach.

The draft guidelines are still to be consulted on and the Law Society may have comments to make on them, as will others.  It is clear from what it says here that the intention is that this offence will only be considered where there is serious criminal conduct.  The briefing from the DPP yesterday was also much appreciated, Leader -

The Director will only consider consent where there are at least three occasions of serious indictable offences.  Where there are allegations of assault, a determination must be made whether the matter would ordinarily be charged summarily on complaint (contrary to s35 of the Police Offences Act) or charged on indictment (contrary to s184 of the Criminal Code) [see the Assault Charging guidelines].

Matters that would ordinarily be charged summarily on complaint will not be relied upon as an occasion, unless there are already three occasions that amount to an indictable offences. 

It is very clear from the DPP's comments that his expectation is they will be serious offences and that the consideration of the circumstances in which the offences were perpetrated will be considered.

I mentioned the article from The Conversation and that some of these men are particularly good at image management - and some women can do that as well.  It makes it seem like there was nothing in this - 'She asked me to come around and I was just responding to her call.'

The family violence order is there for a reason.  She may feel so lacking in self-confidence and so damaged by the harm she has been subjected to that she may not have the courage to say no, for fear of what else might happen.

While I respect the Law Society's view on this and I understand its concern, the legislation as it is meets the standard, particularly with the role of the DPP in that process and the draft guidelines, which I assume will not be significantly changed during the consultation process.

I accept that guidelines can be changed.  They do not have a legislative power as such.  They are made under the DPP's relevant legislation, so there is a legislative instrument sitting above that and they can be changed.  If that were to be the case, the Law Society would probably come out strongly if it watered it down, using those terms, to an occasion where things that perhaps should not be treated as such a serious offence are being caught up in it.  I am happy to proceed with that section as it is.

I note the Law Society raised as well that the bill is a bit circular in the definitions where 'family relationship has the same meaning as in the Family Violence Act 2004'.  When you go to the Family Violence Act 2004, it refers you to the Relationships Act, which is a bit circular.

It is probably an Office of Parliamentary Counsel drafting style, but why not simply put it up as the Relationships Act?  It means you have to look at three acts rather than two if you are trying to clarify it.  If you could address that in your reply, that would be helpful.

Mrs Hiscutt - I can reply now.  It is OPC's way of doing things, so it is drafting.  That is just the way they do it.

Ms  FORREST  - I guess it is to link it clearly with the Family Violence Act.  That was my assumption but I was interested in why you would not go to the act that it ultimately refers to. 

The other matter raised as a concern was the issue of the extraterritorial rights.  The Law Society raised some concerns about being able to prove an extraterritorial offence as being relevant in the case.  I said earlier in my contribution that Tasmania has some effective and strong laws in this area.  Many other countries do not have anywhere near the protection for women as we do in our country, which we can only be grateful for.

Culturally things are different.  We are aware of the way women are treated in Saudi Arabia and are not respected anywhere near the way women are in Australia.  It has been under the spotlight lately for a completely different reason with the murder of a Turkish journalist.  In countries like that women are given very little respect and basically have no rights.  An example in the media recently is they can now drive, something we have taken for granted for a very long time.  It is okay for a man to rape his wife, and economically and emotionally abuse her.  People say it is part of their culture.  Yes, but it does not mean we should accept this when they come to Australia.

Our culture in Australia is to respect women, to treat women in high regard and to all be equal.  We are not quite there yet on some fronts. 

Mrs Hiscutt - I was thinking of a marriage service, the old term, 'Who presents this woman to be married to this man?'  It is not law any more to ask this question, but traditionally speaking you did.  It is because women were the goods and chattels of their fathers and were passed to their husbands.

Ms  FORREST  - It was basically a property settlement.

Mrs Hiscutt - Yes.

Ms  FORREST  - It was a settlement of property.  Wives were the property of their husbands and it was about securing the neighbouring property.  Dad says, 'You can marry that fellow because then I can take over that farm'.  It was all about property and power.  Thankfully those things have changed, but in some countries it is not the case.

The extraterritorial power was interesting to work through and the second reading speech was instructive in this, but also the way the bill is written - it has a protective factor, so this cannot form part of a charge for someone who is in Australia now who may have lived or holidayed overseas, if the conduct they undertook in the other country was legal there or not unlawful, which is a double negative.  If it is legal in that country or is not against the law to do a certain thing, like rape your wife, that cannot be held as one of those cases in the three occurrences of unlawful family violence acts to achieve that.  That behaviour is illegal in our country.  If they did it three times in our country, I understand they absolutely could be picked up under this on three separate occasions.

Usually it is not one particular offence; it is perhaps a sexual assault, but there may be some evidence of economic abuse, threats and intimidation and stalking, and all those things on different occasions can make up the charge.

We heard from the department and Chris Gunson, President of the Tasmanian Bar, and he described the protective nature well.  It is easy for people from Tasmania to go on a holiday to Victoria, Queensland or anywhere else around the country and to continue to perpetrate violence against their partner, which is part of the pattern.  If it is not able to be part of this, it can make it more difficult for a victim to make a claim.

The other important inclusion in this bill was the section where it is clear if, for whatever reason, a persistent family violence case cannot be prosecuted, or is put up, but then the judge and jury decide three circumstances were not met or there was some doubt about whether there were only two, not three, they do not have to agree on which particular three, it just has to be three.  If the three cannot be determined as having occurred, they can prosecute on a number of other offences like assault of a pregnant woman, abduction, rape, stalking, indecent assault, wounding or causing grievous bodily harm, sexual intercourse with a person with a mental impairment, an offence under section 8 of the Family Violence Act, and an offence under section 9 of the Family Violence Act.  There are sections relating to economic abuse, emotional abuse and intimidation. That is really important because if a prosecutor decides to go with persistent family violence and that is it, if they lose that and have no option to do this, all is lost.  At least there is still that provision.  It is a very sensible and important inclusion in the bill.

Mr President, the proving of three occasions of an offence is important.  There was some discussion earlier on - and I think the Law Society might have raised this too - about the continuing impact of a long-term relationship, and this is similar to the maintaining a sexual relationship with a child provision, which is basically taken from there to there.

When I first met with the Law Society, they raised concerns that if this is about children, and it is, children have less capacity to remember events - 

Ms  FORREST  - Mr President, it was about maintaining a sexual relationship with a child and these provisions were basically taken from that. 

The Law Society initially raised some concerns with me about the fact that children can have real challenges in remembering specific locations and dates, and I accept that.  We are dealing with adults here, not children, but I absolutely support the notion that the victim does not have to remember exactly dates, times and locations.  Victims can be taken in the dead of night to places; they can be thrown into the boot of a car; they can be in a situation where the trauma is so great that they can only remember the trauma, not the circumstances around it.  They may remember specific events because they knew they had gone away on holidays or it was related to their mother's birthday party, or whatever it was, and the trauma happened after that.  Sometimes they can nail specific events down to a particular time, but many times they cannot.

This is completely extraterritorial, Mr President, but the whole appointment of Judge Kavanaugh in the United States, when a key witness could not recall exactly the location, the dates, the time.  She could remember certain aspects of the trauma she experienced, but she was publicly ridiculed by the President of the United States, Mr Trump, because she could not remember those details.  She was discredited because she could not remember those details.  Someone so extremely traumatised by a particular event often cannot remember them.  I do not have any issue with that aspect of it.  Unless someone has experienced a severe trauma like that, I do not think they can appreciate the difficulty people can have in actually remembering all the circumstances.  If you have to prove the location and you get that wrong, the case is out of the window.  If you have to prove the exact date and you get that wrong, the case is out of the window.  It needs to have a decent and sensible approach and I believe this has that.

Incidentally, the Law Society did not raise that in the briefing we had with them; they raised it when I met privately with them earlier.  For me, I think of Judge Kavanaugh's appointment and I think, 'No, trauma is trauma and it can have that sort of impact on people'. 

Mr President, I commend the Government on taking this matter so seriously and looking to bring this more serious offence that does recognise and acknowledge the long-term nature of many incidences of family violence.  It goes on and on for years, and it takes many forms.  It takes great courage and often the great support of family and friends for women to come forward sometimes because their self-esteem and their self-confidence has been so eroded that they can see no other way out.  Particularly when they are being economically abused, they have no financial wherewithal to get out so they rely on family, friends and women's shelters.  We know there is a real challenge in accessing women's shelters in this state and that can make it even harder.  We also know they are much more at risk of being killed by their partner when they make the decision to leave and when they leave.

I would like to see no more women killed at the hands of an intimate partner.  Surely we have to turn it around from nine in a month.  One a week is way too many.  One a month is too many.  One a year is too many.  Let us do what we can. 

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