Tuesday, 2 September 2008

ACT DV Bill introduced to Parliament

ACT Attorney-General Simon Corbell has tabled the Domestic Violence and Protection Orders Bill in the Legislative Assembly, which greatly changes the 2001 Act, including now providing for same sex couples and boyfriend/girldfriend relationships.

I have set out below the introduction to the explanatory statement to the Bill:

Domestic Violence and Protection Orders Bill 2008
Outline

The Domestic Violence and Protection Orders Bill 2008 introduces a range of amendments to address matters that have evolved in recent years as a consequence of the Supreme Court decision of SI bhnf CC v KS bhnf IS [2005] ACTSC 125 (I v S) regarding the lawfulness of section 51A of the Domestic Violence and Protection Orders Act 2001. In addition the Bill restructures the Act, including some substantive content changes. The Bill reflects consultation process undertaken by the Department of Justice and Community Safety. It is the Government’s view that these changes will substantially improve the use and understanding of the Act by the ACT community.

A major focus of these amendments is to address the incompatibility issues with the Human Rights Act 2004 (HRA) raised in the Supreme Court decision of I v S. The amendments clarify the circumstances in which an interim order can become a final order. The Bill also provides for a review mechanism at Magistrates Court level, for an order that has become final as a consequence of the interim order process. A detailed explanation regarding interim orders becoming final is contained in the detail section of this Explanatory Statement at clause 36.

Legal practitioners and the community sector identified a range of practical difficulties in using the Domestic Violence and Protection Orders Act, since the introduction of amendments to it in 2005. The 2005 consolidation of the provisions in the Magistrates Court Act 1930 relating to restraining orders and the Domestic Violence Act provisions dealing with protection orders resulted in an awkward mixture of the procedural and substantive elements within the Act. The amendments in this Bill incorporate a substantial restructure of the 2001 Act to improve its ease of use and understanding.

The Bill responds to community concerns regarding the need to ensure all types of domestic relationships are contemplated by the Act. This Bill extends the category of relationship within the Act and now includes intimate heterosexual and homosexual relationships in circumstances where the parties do not reside together. It has long been recognised that intimate relationships such as boyfriend/girlfriend and same sex relationships of this type, share similar dynamics to those relationships already contemplated by the Act.

The Bill also clarifies that children under the age of criminal responsibility are not intended to be respondents to a protection order.

The Bill will enable interim orders to be amended and provides for short-term amendments to final orders in certain circumstances. These amendments will ensure that the Court has the capacity to be flexible, in being able to make temporary changes to accommodate for circumstances not contemplated by the parties at the time of making the order.

The Bill extends protection to children in a number of ways. Firstly, it authorises the Department of Disability, Housing and Community Services to access information from the Courts regarding the existence and content of an order when child protection officers are investigating a child protection matter.

Secondly, the Bill strengthens provisions relating to the safety of children, by including an expanded definition of domestic violence to incorporate the psychological abuse of a child or young person. The Bill also prevents children under the age of 10 years from being named as respondents on an order.

The Bill responds to stakeholders’ concerns about the reach of the provisions to workers who provide letters of support to clients under the provision dealing with the restriction of the publication of reports about proceedings. The Bill clarifies that a person is not restricted from writing a letter of support for a client to assist in organising their personal affairs, in circumstances where the client has consented to this process.

The Bill provides additional procedural powers to Court Registrars to assist in the identification of relevant issues during the conferencing stage of an order. The purpose of these provisions is to facilitate a matter that has not been resolved at the conference stage of proceedings and is subsequently set down for a hearing.

These additional powers are intended to improve decision-making by identifying what the parties would agree to and narrow the issues that are in contention.

The Bill adds the offence of trespass to the schedule of offences that are defined as domestic violence offences in the context of a domestic relationship.

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