WA Introduces New Laws to Tackle Family and Domestic Violence

Thursday 5 December 2019 @ 1.30 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The Family Violence Legislation Reform Bill 2019 (WA) (the Bill) was introduced into the WA Parliament on Wednesday 27 November 2019 by Mr JR Quigley (the Attorney-General). In a Media Release, the Government has indicated that the reforms proposed by the Bill represent the “most comprehensive family violence law reform package ever seen in Western Australia” and “address a number of election commitments around family violence.” 

The reforms proposed by the Bill amend nine separate pieces of legislation and effect six separate Ministerial portfolios which according to the Attorney-General “demonstrate(s) a cross-government commitment to tackling family and domestic violence”.

In support of the need for reform the Attorney-General cited the Australian Institute of Health and Wellbeing figures indicating that “. . . one in six women have experienced physical or sexual violence by a current or previous partner, which is 1.6 million women across Australia”.

Major Changes

If the Bill passes, the Criminal Code will be amended to provide for two new offences, non-fatal strangulation and persistent family violence.

Non-fatal strangulation

Clause 5 of the Bill proposes to amend section 283 of the Criminal Code to provide that a proposed new section 298 dealing with suffocation and strangulation, is a statutory alternative offence to section 283 dealing with an attempt to unlawfully kill.

Clause 6 of the Bill proposes to insert new sections 298 to 300 into the Criminal Code. The first is section 298 (Suffocation and strangulation) a new offence, committed if a person unlawfully impedes another person’s normal breathing, blood circulation, or both, manually, or by using any other aid:

(a) blocking (completely or partially) another person’s nose, mouth or both; or
(b) applying pressure on, or to, another person’s neck.

Where the elements of the offence under section 298 cannot be established then common assault is prescribed as an alternative offence. The proposed penalty for the new offence is seven years imprisonment if committed in circumstances of aggravation or, in any other case, five years imprisonment. The summary conviction penalty is three years imprisonment and a fine of $36,000 if committed in circumstances of aggravation or, in any other case, two years imprisonment and a fine of $24,000.

Persistent family violence

The proposed new section 300 adds the new offence of persistent family violence to the Criminal Code. The proposed new offence is committed if a person persistently engages in family violence as defined in section 299(5) of the Criminal Code, namely, where a person commits three or more acts of family violence, within a 10-year period, against a person with whom they are in a designated family relationship.

The new offence seeks to recognises that family violence often forms a pattern of offending against a victim, and that the persistent nature of the offending means the victim may find it difficult to recall specific details of each individual act of violence perpetrated against them, or to provide corroborating evidence to assist in particularising the dates and circumstances of this offending.

The new proposed section 299 of the Criminal Code deals with the term designated family relationship used in the proposed section 300 offence of “persistent family violence”. The section defines the term to mean, a relationship between two persons:

  • who are, or were, married to each other;
  • who are, or were, in a de facto relationship with each other; or
  • who have, or had, an intimate personal relationship with each other.

The purpose of the definition is described in the explanatory memorandum, as being to capture persistent offences committed by a perpetrator against a victim with whom they are or were in a direct partner relationship.

The proposed definition is consistent with the definition of designated family relationship to also be inserted by the Bill into:

  • section 4 of the Sentencing Act 1995 (WA) by clause 14 of the Bill,
  • section 4 of the Sentence Administration Act 2003 (WA)by clause 39 of the Bill, and
  • section 3 of the Bail Act 1982 (WA) by clause 47 of the Bill.

De facto relationship is defined in section 13A of the Interpretation Act 1984 (WA) and means a relationship (other than a legal marriage) between two persons who live together in a marriage-like relationship.

Overview of Other Changes

The Bill also includes other changes, being:

  • provisions for new aggravated penalties for offences which commonly occur in circumstances of family violence;
  • the introduction of serial family violence offender declarations;
  • the expansion of access to the electronic monitoring for offenders;
  • the introduction of jury directions to counter stereotypes, myths and misconceptions about family and domestic violence;
  • the introduction of measures to make it easier for evidence of family and domestic violence to be introduced in criminal trials;
  • the introduction of a requirement for police to record every family violence incident; and
  • the proposal of a range of amendments to the Restraining Orders Act 1997 and Bail Act 1982 (WA) to enhance victim safety and make it easier for victims to obtain protection from violence.

Comments on the Bill by the Attorney General 

Describing the domestic and family violence problem in his Media Release the Attorney-General said:

"Family and domestic violence is often referred to as a scourge in the community, but it is in fact an epidemic . . .Domestic and family violence victims make up 61 per cent of assault victims in WA and at least 30 per cent of all matters in the Magistrates Courts involve family violence. Nationwide, a woman dies as a direct result of family violence every nine days. . .  This comprehensive Bill will ensure WA is at the forefront of the fight against family violence in Australia."

General Comment and Reaction 

The package of reforms represented by the Bill is reported to have been welcomed and WA Today reports the Chief Executive of the Women’s Council for Domestic and Family Violence Services in WA, Angela Hartwig as saying, that her organisation had been:

". . . lobbying and providing training on the issue of non-fatal strangulation for a number of years and are very pleased the WA Government is making standalone legislation that recognises this highly dangerous form of DFV [Domestic Family Violence], and its serious nature. . . "

As at 3 December 2019 the Bill was at second reading stage in the WA Assembly. Given that the Assembly has completed its sittings for 2019 the Bill will not progress until 2020.

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