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The domestic and family violence recognition of domestic violence orders national uniform law amendment bill (Serial 3) Bill presented and read a first time. Ms FYLES (Attorney-General and Minister for Justice): Madam Speaker, I move that the Bill be now read a second time. The main purpose of this Bill is to provide for the automatic recognition and enforcement in the Northern Territory of domestic violence orders made elsewhere in Australia. The Bill is based on model legislation developed by the Australian Justice and police agencies under the auspices of the Law, Crime and Community Safety Council, or known as LCCSC. It is the ministerial council comprised of the Commonwealth, State and Territory Attorney-Generals and Police Ministers. The model law was approved by the council of Australian governments at its meeting December 2015. At that meeting COAG agreed that States and Territories would introduce the automatic recognition and legislation in the first half of 2016. It is very pleasing for me that the Territory is now fulfilling this commitment. Under the existing State and Territory legislations the protection provided by domestic violence orders ends at a State and Territory boarder unless the protected person, or a police officer registers their domestic violence order in the new jurisdiction. These provisions were enacted as part of a national scheme for the registration of interstate domestic violence orders. For the Northern Territory, chapter three of the Domestic and Family Violence Act provides for the registration of domestic violence orders made elsewhere in Australia or in New Zealand. Registration occurs after an application is made to the local court by person who has the benefit of the order, an adult acting on their behalf or by a police officer. The active registration is performed by a registrar of the court. If modification is required for the order to operate effectively in the Northern Territory, the registrar must refer the order to the court for modification prior to registration. If an external order is not registered but a police officer reasonably believes a person in the Territory is a defendant named in an order enforced in the jurisdiction in which it was made, the police officer can made a declaration to the Commissioner of Police to that effect. An external order will then have the same status as a court domestic violence order under the act for a period of 72 hours following the declaration. Under the current legislation in place throughout Australia, it is the domestic violence victim who usually has to apply to the Local Court for the registration of an interstate domestic violence order. This forces the victim to again have to deal with the court and law enforcement processes in another jurisdiction. The proposed new legislation vastly simplifies the requirement for a domestic violence victim. The general rule will be the domestic violence order made in any jurisdiction will apply in all Australian states and territories. The victim is spared the ordeal of going through a registration process. Since 2009 following the release of a report by the National Council to Reduce Violence Against Women and their Children entitled Time for Action, the National Council’s Plan for Australia to Reduce Violence Against Women and their Children 2009 to 2021, state and territory Attorneys-General have been considering reforms to state and territory domestic violence legislation which would effect the automatic recognition of interstate orders. The project stumbled at various times because of our reluctance to develop recognition legislation until such time as an information system extended so that police and courts in the states and territories had quick and reliable means of accessing domestic violence information, an important part. Following the tragic death of Luke Batty in 2014 and a generally heightened awareness around Australia of domestic violence issues, the Commonwealth committed significant funding to the development by Crime Track, now the Australian Criminal Intelligence Commission, of a prototype information system. In April 2015, COAG agreed to take urgent collective action to address the unacceptable level of violence against women. COAG proposed by the end of 2015 there would be a national domestic violence order scheme agreed which will provide the automatic recognition an enforcement of domestic violence orders in any state or territory of Australia, and that progress will be reported on a national information system that will enable courts and police in different states and territories to share information on active domestic violence orders. New South Wales, Queensland and Tasmania were to trial the system. In May 2015, the LCCSC noted that reducing violence against women is a priority item on the COAG agenda and it was expected that model laws would be agreed to by the end of 2015. The LCCSC confirmed that there was the need for both the legislation across jurisdictions and a national information system that provides timely, accurate and valid information to enable enforcement action. It is generally accepted that the objective of the national domestic violence order scheme is to provide a seamless national scheme and increase protection for victims of domestic violence across Australian borders by removing the need for individuals to personally register their domestic violence orders in a new jurisdiction. It also aims to streamline enforcement processes because orders can now be recognised in real time. The model law has been drafted in accordance with the four policy principles as agreed in December 2014 by the national domestic violence order working group, comprising representatives from justice and police agencies in each jurisdiction. The four principles are as follows: a family and domestic violence order made or registered anywhere in Australia is nationally recognised and enforceable; an order made in one jurisdiction can be amended by another jurisdiction, but only by a court; where an order made in one jurisdiction is in force, if necessary a new order can be made in another jurisdiction, but only by a court; and the latest order in time prevails. Key provisions of the Bill—the bill provides for a new chapter 3A of the Act. The four principles are contained in Division 1 of Part 3A2(a)—recognise domestic violence order in one or other of the following: an order made in the Northern Territory; a domestic violence order made in another jurisdiction has been enacted the model provisions; or a New Zealand domestic violence order registered in any participating jurisdiction. Proposed section 103C limits the scope of recognition of orders from South Australia and Western Australia to only those that are made to address domestic violence. This provision is necessary because South Australian and Western Australian legislation does not differentiate between domestic and personal violence orders. In the case of the NT, personal violence and restraining orders are made under the Personal Violence Restraining Orders Act 2016. Section 103C is drafted on the basis that issuing authorities in South Australia and Western Australia will word their orders so it is clear as to whether they deal with a domestic violence concern in order for them to be recognised under this new scheme. Proposed sections 103F, 103G and 103J set out the circumstances in which variations, revocations and new orders can be made. These provisions make it clear that a domestic violence order can be varied or revoked by a court in another jurisdiction and that a police-issued domestic violence order cannot override a court domestic violence order made for the same defendant and protected person. Section 103J clarifies that a person is not prevented from applying for a new domestic violence order in the Northern Territory. An order made by a police officer in the Northern Territory can only operate in the Northern Territory until it is dealt with by the court. In the circumstance where a police order is made, where there is an already recognised DVO, the police order only becomes a recognised DVO for national purposes if it is confirmed by the Local Court and it is properly notified to the defendant. For this period it also operates to the extent that it does not diminish the protections afforded to the protected person under the recognised order. In permitting police to made orders in these circumstances the NT Bill differs from the model Bill; which prohibits police from making an order if they are aware that there is an existing order covering the same parties. We have varied from the model as a result of the issues raised by the Northern Territory Police, concerning the potential need for urgent action to fill in gaps in an interstate order. For example: an interstate order may not have a no contact condition but NT Police may consider, for the purpose of protecting the safety of the protected person, that there is an urgent need to impose no contact conditions. These kinds of police orders will only apply in the NT until confirmed by the court and given to the defendant and cannot diminish the protection offered to the protected person. The Victorian government has taken a similar approach outlined in section 49 of the National Domestic Violence Scheme Order Act 2016. Proposed section 103w acts as a safeguard to prevent forum shopping by giving the court discretion to hear an application for the variation of a non-local domestic violence order. The section sets out a list of matters the court may consider in deciding to hear an application for the variation of a non-local domestic violence order. These factors include: where the defendant and the protected person live and work; difficulty of either party to attend the proceedings; where there is sufficient information available to the court about the domestic violence order; whether their existing criminal proceedings for a breach of the domestic violence order; and the practicality of the applicant applying for a similar domestic violence order in the Northern Territory; and the impact of the application on children subject to a domestic violence order. Proposed section 103W(5) specifies that a court in the Northern Territory must refused to hear an application for the variation or the revoke made by defendant of the defendant would not be entitled to make such an application in the issuing jurisdiction. One example is where there is a time limit on when the defendant can make such an application. Sections 103K to 103M provide for the enforcement of recognised domestic violence orders. Section 103k gives effect to the principle that a recognised domestic violence order is enforceable in all participating jurisdictions once the defendant has been properly notified. Section103l defines proper notification under the law of the Northern Territory to be where the domestic violence order in made by a court and the defendant is present in the court or where the defendant is given a copy of the order in accordance with section 119 of the Domestic and Family Violence Act. Jurisdictions have agreed to accept compliance with the service requirements set out in the local laws as proper notification of the interstate domestic violence orders and propose sections 103K(3) gives effect to that agreement. Sections 103N to 103R set out the elements of the enforcement of non-local domestic violence orders to ensure they are treated in the same way as local orders. This means the Northern Territory will be able to recognise prohibitions and restrictions imposed by a non-local domestic violence order as if it was made in the Northern Territory. Similarly, all existing Northern Territory provisions that restrict the grant of a particular licence or permit such as firearms licence, will extend to a person with a domestic violence order from a participating jurisdiction. Section 103M provides that a breach of a domestic violence order is recognised in all participating jurisdictions. This means that a contravention of a non-local domestic violence order that is a recognised domestic violence order under the act may be enforced in the Northern Territory as if it was a Northern Territory domestic violence order. Sections 103X to 103ZA set out the principles relating to the exchange of information between jurisdictions for the purpose of enforcing domestic violence orders. Under the proposed section 103ZF the new recognition provisions will apply (inaudible) to new Northern Territory domestic violence orders and to New Zealand domestic violence orders registered in the Northern Territory. That is, orders made on or after the commencement date of the act will be recognised in other participating jurisdictions. This is necessary to ensure that all required information-sharing systems are in place and that the parties to the order are properly notified and that the domestic violence order can be nationally enforced. However, there is some scope for domestic violence orders made before the commencement of the scheme to be recognised nationally if they are prescribed by regulation under the Northern Territory act or if individually declared by a court registrar. Regulations made in the Northern Territory can expand the scope of automatic recognition. This regulation-making power is slightly at a variance with the model bill and the provisions enacted in other states and territories. We will use this regulation-making power if we back capture for the national system orders made prior to the commencement of legislation. Additionally, the model bill and section 103ZK provide for a declaration process. The declaration mechanism is based on the existing manual process for registering external domestic violence orders in the Northern Territory. It requires a person to apply for a registrar of a court to have their domestic violence order declared to be a recognised domestic violence order under the national scheme. This could be utilised, for example, in the case of a domestic violence order in place prior to the commencement of the act or an order from a non-participating jurisdiction. Part VI of the Police Administration Act regulates the civil liability of police officers performing duties under laws of the Northern Territory. This part does not identify any of the factual circumstances in which it might be considered that there is negligence or a breach of the statutory duty that could give rise to civil liability. There are fears that police and others may be liable that they do not enforce an interstate order or if they enforce an interstate order that is no longer current. The object of the legislation is to ensure that interstate orders are enforced wherever possible. For the purpose of maximising the achievement of this object Section 103Z(c) spells out that enforcement officers, the courts and the Territory will not be held legally liable because of a lack of access to the best information; when acting in good faith. This is of particular relevance to police operating in our remote communities. The proposed limitation of liability in Section 103 ZC(3) provides protections for acts or omissions even if a person fails to find current information about a domestic violence order. Of course, this section does not provide protection for acts or omissions done without good faith or for where there is no justification at all; an important point. Parts 3 and 4 of the Bill make amendments of consequential nature to the Domestic and Family Violence Regulations and to the Firearms Act. The key transitional issue is that of determining the extent to which legislation should be recognised domestic violence orders made prior to the commencement of this model law. The model law is structured around the last in time principle. It is critical that police and courts have the capacity to identify quickly what is the current domestic violence order in place and is that the only order that is legally enforceable. Currently there is no information system capable of providing this kind of information. Additionally, most jurisdictions have expressed the view that even if the technical system existed, they would probably not be in a position to back capture the data for all current orders in place prior to the commencement of the scheme. The bill provides that additional transitional arrangements be contained in regulations. The basic fact is that the Northern Territory cannot address the extent of the need for transitional arrangements until the information system is developed. The National Domestic Violence Order Scheme will rely on courts and police in all jurisdictions having access to valid, comprehensive and real time information on active domestic violence orders. The information system will enable enforcement, action and prosecution of breaches with the technical capability to support and deliver the scheme in accordance with the policy and provisions set out in the model law. Following COAG’s decision in December 2015, the Australian Criminal Intelligence Commission is developing an interim capability to be made available to all jurisdictions in the short term, while concurrently developing a comprehensive national capability over a longer term. An Interim technical solution has been identified, which builds on the current national policing system and, according to the advice of the Commonwealth, can be made available to jurisdictions in late 2016. Although the interim solution has limitations; the Commonwealth has advised that it will provide police with a basic capability to determine whether a domestic violence order is enforced with respect to a person and its key conditions. The interim solution will require implementation of additional support arrangements by jurisdictions to ensure domestic violence order data is available via the system and police can act on the most accurate and up-to-date information in enforcing interstate domestic violence orders. The longer-term national solution envisaged involves a purpose-built capability available to all jurisdictions, including police and courts, and builds on existing prototype work. It will not only provide immediate capability for domestic violence order information sharing and enforcement across police and courts nationally, but could also provide a base platform for future national justice information sharing. With future investment it may be extended to other types of court of judicial orders, which would be of great national benefit. For both the interim and national capabilities to be an effective tool for police and courts, each jurisdiction will need to provide domestic violence order data and implement supporting businesses and system changes. This will ensure that police, courts and justice agencies can access current and timely domestic violence order information. To fund this approach the Commonwealth proposes that the residual funding from the prototype be redirected to undertake the work on the interim technical solution. The Commonwealth is still exploring options to fund the national technical solution. This Bill, along with its interstate equivalents, is a testament to the wholehearted commitment of Australian governments to reducing family and domestic violence. The timing of the commencement of the legislation will, however, depend on the development of effective information systems. We are dependent on the Commonwealth’s endeavours regarding that development. Implementation of a national domestic violence order recognition scheme promises to improve the safety of vulnerable victims across state and territory borders and demands maximum accountability of perpetrators. Let me be clear that perpetrators of domestic violence should have no place to hide. They should not be able to go across state and territory borders. Furthermore, the scheme presents an impressive example of integrative and collaborative law enforcement. This is an issue that was raised at the ministerial council meeting I attended last week. Although some may say that for discussions that started in 2009—there certainly is a great body of work being undertaken, and it is work across state, territory and Commonwealth boundaries. It is also work with justice and police. It is a hugely important body of work. I commend the Bill to honourable members and I table a copy of the explanatory statement. |