NEW QUEENSLAND DOMESTIC VIOLENCE LAWS
INTRODUCED FRIDAY 14 OCTOBER 2022
New domestic violence laws which start to implement new coercive control laws were introduced into the Queensland Parliament on Friday 14 October 2022.
Coercive control constitutes a pattern of behaviours perpetrated against a person to create a climate of fear, isolation, intimidation and humiliation.
In March 2021 the Queensland Government established a Taskforce to examine coercive control and review the need for a specific offence of domestic violence. The Taskforce recommended the creation of a new standalone offence of coercive control. However it also made it clear that, prior to the introduction of a standalone offence, system wide reform was needed to ensure sufficient services and supports are in place across the DV service and justice systems, along with critical amendments to existing legislation which should be implemented immediately. This includes that systems need to respond better to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.
The Taskforce recommended immediate legislative reforms that are required to strengthen Queensland’s current response to coercive control and this Bill implements those recommendations through amendments to the Criminal Code, the Domestic Violence Act, the Evidence Act and the Penalties and Sentences Act.
Victims of coercive control told the Taskforce about the prevalence of stalking and harassing behaviour particularly electronic surveillance of them and their children. The Taskforce also noted that the stalking offence is underused by Police and Prosecutors in the context of coercive and controlling behaviours.
The amendments in the Bill seek to reflect the association between stalking and domestic violence and to ensure that traditional attitudes, practices and misconceptions do not impede the offence being used to hold perpetrators to account. The Bill modernises the offence of stalking so that it reflects criminal behaviour including the interaction between stalking and coercive control.
The offence of stalking is to be renamed “unlawful stalking, intimidation, harassment or abuse” and will broaden the type of offending captured by the offence and better reflect the way an offender might use technology to facilitate stalking, intimidation, harassment or abuse.
The additional conduct that will be captured by the new offence of stalking, intimidation, harassment or abuse will include contacting a person in any way using any technology and monitoring, tracking, or surveilling a person’s movements, activities or interpersonal associations without the person’s consent. This includes checking the recorded history in a person’s digital device, reading a person’s SMS messages, monitoring a person’s email account or internet browser history and monitoring a person’s account with a social media platform.
It will also include publishing offensive material on a website or social media platform in a way that will be found by or brought to the attention of a person.
It will include giving offensive material either directly or indirectly to a person including by using a website or social media platform.
It will also include a threatening, humiliating or abusive act against a person whether or not involving violence or the threat of violence with an example of that conduct being publishing a person’s personal information such as the person’s home address or phone number on a website.
The Bill introduces a new circumstance of aggravation with a maximum penalty of 7 years imprisonment for the offence of stalking, intimidation, harassment or abuse if a domestic relationship exists between the offender and the stalked person, and domestic relationships will include former relationships.
The Bill will increase the maximum penalty for the offence of contravening a Restraining Order under the stalking legislation to 3 years imprisonment and the Bill also provides for a circumstance of aggravation if the person has been convicted of a domestic violence offence in the 5 years before the contravention of the Restraining Order. The maximum penalty for contravening a Restraining Order with a circumstance of aggravation will be 5 years imprisonment. The maximum penalty will apply regardless of whether the domestic violence offence was committed before or after commencement of the Bill.
Contravening a Restraining Order with a circumstance of aggravation will be an indictable offence but the Bill provides that an offence of contravening a Restraining Order with a circumstance of aggravation must be heard and decided summarily (in the Magistrates Court) unless the Defendant elects for Trial by Jury.
The Bill provides that when a Court makes a Restraining Order the default period is 5 years unless the Court is satisfied that the safety of a person in relation to whom the Restraining Order is made is not compromised by a shorter period.
The Explanatory Notes to the Bill observe that the current definition of domestic violence sends a confusing message about the nature of coercive control in domestic violence and may contribute to misidentification of domestic violence by not properly reflecting coercive control as being the key component of domestic violence.
The Bill makes it clear that domestic violence includes behaviour that may occur over a period of time, includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear, and must be considered in the context of the relationship as a whole. There will be a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.
The Bill also considers cross-applications and requires that applications and cross‑applications be heard together.
The Bill requires the Court to identify the person most in need of protection in the context of the relationship as a whole and only enables the Court to make one Order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.
The Bill provides that a person is most in need of protection when the behaviour towards them is more likely than not to be (1) abusive, threatening or coercive or (2) controlling or dominating causing the person to fear for their safety or wellbeing or that of their child, another person or a pet and the person’s behaviour is more likely than not to be for the self protection of themselves or their child, another person or a pet, in retaliation of the other person’s behaviour towards them or attributable to the cumulative effect of the other person’s domestic violence towards them.
In deciding the person most in need of protection the Court must consider the history of domestic violence and the relationship between the parties, the nature and severity of the harm caused to each other, the level of fear experienced by each person, which person has the capacity to seriously harm the other person or control or dominate the other person and cause fear, and whether the persons have characteristics that make them particularly vulnerable to domestic violence.
The Domestic Violence Act will be amended to specify that where a party has intentionally used proceedings as a means of committing domestic violence including coercive control the Court has the power to award costs against them. The purpose of this is to ‘signpost’ to Lawyers and systems abusers that the Court has the power to award costs against people who use the legal system to continue abusive, coercive and controlling behaviour and the Bill specifically describes this type of behaviour as systems abuse or legal abuse. This is behaviour in which a person intentionally misuses the legal system to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.
A person’s criminal and domestic violence history is to be put before the Court to help determine the risk to the Aggrieved and whether to make a Protection Order and to assist in best tailoring the conditions of the Order to keep the victim safe.
The Court must consider the Respondent’s criminal and/or domestic violence history when making a Protection Order including a Temporary Order including a Domestic Violence Order by consent.
A Respondent’s domestic violence history will state where a previous Domestic Violence Order has been made by consent which is intended to assist the Court in determining the weight to place on the history as Orders made by consent do not require a finding that domestic violence has occurred.
There are also amendments to the Evidence Act to create a new category of protected witness with respect to any domestic violence offence including an offence of contravening a Domestic Violence Order. The prohibition on direct cross‑examination is extended to this new category of protected witness thereby bringing the complainant of a domestic violence offence within the protected witness scheme.
The current Section 132B of the Evidence Act which allows for relevant evidence of the history of the domestic relationship between the Defendant and Complainant to be admitted in criminal proceedings will be extended to cover all offences in the Criminal Code.
The Bill also makes evidence of domestic violence admissible whether that evidence relates to the Defendant, the person against whom the offence was committed, or another person connected with the proceeding.
The Bill implements a Taskforce finding that the full context of victim experiences of coercive control is not being consistently admitted in Court proceedings and has implemented a Taskforce finding that the patterned and cumulative nature of coercive control manifests in complex ways, is often not well understood and that domestic abuse can cause emotional and psychological harm to a victim. The Bill implements a Taskforce recommendation that the ability to present expert evidence on these issues may be needed to aid Juries and Judicial Officers in understanding and evaluating evidence from victims of coercive control.
The Bill defines an expert on the subject of domestic violence to include a person who can demonstrate specialised knowledge, gained by training, study or experience, of a matter that may constitute evidence of domestic violence. These provisions are modelled on Section 39 of the Evidence Act (WA).
The Taskforce found that many members of the community do not understand how the dynamics of domestic violence may impact on the behaviour of victims of DV such as why a victim of DV may remain in an abusive relationship.
The Bill provides the Court with a discretion to give Jury directions that address misconceptions and stereotypes about domestic violence. The amendments seek to enable Juries and Judicial Officers to be better informed and able to consider evidence of domestic violence that has been raised during a Trial. These provisions are also based on the Western Australian Evidence Act.
Section 11 of the Penalties and Sentences Act is amended to provide that the history of Domestic Violence Orders against an offender may be considered by a sentencing Court when determining an offender’s character.
A change to Section 359F of the Criminal Code to create a circumstance of aggravation where a previous domestic violence offence has occurred operates with a partial retrospective effect to the extent that a conviction for a domestic violence offence which occurred before the commencement of the Bill will be recognised as a previous offence for the purposes of the new circumstance of aggravation. The retrospective operation of the amendments is limited by the requirements that the offence be committed within the 5 years prior to the commencement.
Terry O’Gorman (Acc Spec (Crim) Qld)[1]
Robertson O’Gorman Solicitors
[1] The observations in this article are drawn from the Explanatory Notes of the legislation introduced on Friday 14 October 2022 in the Queensland Parliament.