The Domestic Violence and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 (the DFVP Amendment Bill) was introduced into Parliament on 14 October 2022. As the bill is not yet law, but is more likely to be, we have summarised the key parts below.<\/p>\n
Overview of key amendments:<\/u><\/p>\n
In short, the DFVP Amendment Bill proposes amendments to relevant legislation to:
\n\u2022 modernise and strengthen the definition of stalking in the Criminal Code;
\n\u2022 broaden the definition of domestic and family violence to refer to a \u2018pattern of behaviour\u2019;
\n\u2022 strengthen the court\u2019s response to cross application for protection orders to ensure the person most at risk is being protected;
\n\u2022 strengthen the court\u2019s consideration of previous domestic violence history;
\n\u2022 modernise and update certain sexual offence terminology<\/p>\n
Stalking definition<\/em> Penalties<\/em> Domestic and Family Violence Protection Act 2012<\/strong><\/em> (Part 4) Cross applications<\/em> Costs<\/em> Criminal and DV history in civil proceedings<\/em> Substituted service<\/em> Reopening proceedings<\/em> Evidence Act 1977<\/em> (Part 5) <\/strong> Admission of evidence<\/em> Expert evidence<\/em> Jury directions<\/em> Sexual Assault Counselling Privilege <\/em> Penalties and Sentences Act 1992<\/em> (Part 7)<\/strong> Youth Justice Act 1992<\/em> (Part 9)<\/strong> Conclusion<\/u><\/strong> If you are seeking the advice of a criminal defence lawyer, please contact Ryan Murdoch O\u2019Regan Lawyers on 1800 999 529<\/em><\/a> and our specialist Criminal Defence Lawyers will help you in this difficult and vulnerable time.<\/p>\n
\n\u2022 Rename the offence of \u2018unlawful stalking\u2019 to \u2018unlawful stalking, intimidation, harassment, or abuse\u2019 (s 18).
\n\u2022 Incorporate and reflect technology-facilitated stalking (including electronic surveillance) by:
\n– Expanding stalking \u2018by telephone\u2019 to include any technology over any distance with examples given of SMS, email, apps, smart phone, social media, etc.
\n– Incorporating in its definition: monitoring, tracking or surveilling a person
\n– Incorporating in its definition: publishing offensive material online; as well as publishing a person\u2019s personal information (s 19).<\/p>\n
\n\u2022 New circumstance of aggravation with maximum penalty of 7 years imprisonment where a domestic relationship exists between the offender and the stalked person (s 22)
\n\u2022 Increased max penalty for offence of contravening restraining order to 120 penalty units\/3 years imprisonment (s 23)
\n\u2022 New circumstance of aggravation if person convicted of a DV offence in the 5 years before contravening the restraining order (with max penalty of 240 penalty units\/5 years imprisonment) (s 23)<\/p>\n
\nDefinitions<\/em>
\n\u2022 Amend definitions of domestic violence, emotional or psychological abuse, and economic abuse, to include reference to a \u2018pattern of behaviour\u2019 (ss 31\u201333)
\n\u2022 Meaning of domestic violence also to include behaviour that may appear over a period of time; and when considered cumulatively is abusive, threatening, coercive, or causes fear; and is to be considered in the context of the relationship as a whole (s 31).<\/p>\n
\n\u2022 The court must<\/strong> decide the person most in need of protection in the relationship and only one<\/strong> DVO protecting that person should be in force except in exceptional circumstances (e.g., clear evidence that both persons need protection) (s 39)
\n\u2022 Require applications to be heard together where before the same court (s 37)
\n\u2022 Require court to consider whether to make arrangements for the safety of the person most in need of protection (e.g., give evidence from outside of the courtroom) (Relevant to Rec 49)<\/strong> (ss 37\u201338)
\n\u2022 The amendments also provide guidance for magistrates in determining person most in need of protection, such as considering:
\n– Relevant history
\n– Nature and severity of harm
\n– Level of fear experienced
\n– Capacity to harm, control, dominate
\n– Vulnerable characteristics (women, children, ATSI, CALD etc) (s 34).<\/p>\n
\n\u2022 The court may award costs against an applicant if the court decides to hear and dismiss the application, and in doing so, decide that the party intentionally engaged in behaviour towards the respondent that is DV (intended to prevent a party intentionally using proceedings as a means of committing or continuing DFV) (s 49).<\/p>\n
\n\u2022 Court must be given respondent\u2019s criminal history and DV history (s 35)
\n\u2022 The court may consider the respondent\u2019s criminal and\/or DV history when making a protection order, temporary protection order, of varying a DV order (s 43)
\n\u2022 Definition of DV history includes all QLD current and expired DV orders and police protection notices. Interstate and NZ history included in definition, however only when recorded on QPRIME or in police commissioner\u2019s possession (s 54).<\/p>\n
\n\u2022 Applications and orders must be served personally by police officers\u2014however the court may make a substitute service order if satisfied that: (1) reasonable attempts have been made; (2) serving the document in another way is necessary\/desirable to protect the aggrieved; and (3) serving the document in another way is likely to bring the document to the attention of the respondent (s 53).<\/p>\n
\n\u2022 A respondent may apply to the court to reopen a proceeding if a court makes or varies a protection order and: (1) the application was served on the respondent under a substituted service; (2) the application was not brought to the attention of the respondent; (3) the respondent was not present in court when the application was heard and decided (s 50).<\/p>\n
\nExpanding class of protected witnesses for cross-examination<\/em>
\n\u2022 New category of protected witness to include aggrieved or relative\/associate of the aggrieved for a DV proceeding (which affords them protection from cross-examination by the respondent directly) (ss 48; 60).<\/p>\n
\n\u2022 Relevant evidence of the history of the domestic relationship can be admitted in DFV criminal proceedings (s 64)
\n\u2022 Evidence of DV admissible whether it relates to the defendant, aggrieved, or another connected person (s 64)
\n\u2022 Provision of a non-exhaustive list of what may constitute evidence of DV, including for example: the cumulative effect of DV (including psychological effect); social, cultural, or economic factors; general nature and dynamics of relationships affected (s 64).<\/p>\n
\n\u2022 Expert evidence is admissible in a criminal proceeding and may include evidence about the nature and effects of the DV generally, and about the effect of the DV on the person (s 64).
\n\u2022 Expert evidence is not inadmissible only because the opinion is about a fact in issue, or a matter of common knowledge (which abrogates ultimate issue and common knowledge rules) (s 64).<\/p>\n
\n\u2022 Court has discretion to give jury directions that address misconceptions and stereotypes about DV (s 67).<\/p>\n
\n\u2022 A victim or alleged victim of a sexual assault offence has standing to appear at all stages of a sexual assault counselling privilege proceeding (s 58).<\/p>\n
\n\u2022 History of DV orders made against an offender (as an adult) may be considered during sentencing when determining an offender\u2019s character (s 81)
\n\u2022 When sentencing an offender who is a victim of DV, a court must treat the effect of the DV on the offender as a mitigating factor, unless considered unreasonable because of exceptional circumstances (s 80).<\/p>\n
\n\u2022 Courts must consider mitigating factor for child offenders who are victims of DV, and who have been exposed to DV (no exclusion in exceptional circumstances). (s 96).<\/p>\n
\nAs I said at the outset, the Bill is likely to become law shortly. If you have been charged with an offence relating to Domestic Violence or you wish to bring an application for a DV order, it is important to consult us immediately.<\/p>\n\u8054\u7cfb\u6211\u4eec<\/h2>\n