DOMESTIC AND FAMILY VIOLENCE AMENDMENT BILL 2008 Explanatory Statement

2008

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

Domestic and Family Violence Amendment Bill 2008
SERIAL NO. 26

EXPLANATORY STATEMENT

The Domestic and Family Violence Amendment Bill 2008 amends the Domestic and Family Violence Act to provide that:

§ it is an offence if an adult in the Northern Territory does not report to a police officer the belief that:
o another person’s life or safety is under serious or imminent threat because of domestic violence; or
o a person has caused, or is likely to cause, serious physical harm to another person within a domestic relationship;
§ it is a defence to this offence to have a reasonable excuse for not making the report, which specifically includes reasonably believing that another person has already formed the same belief and made a report to a police officer, being engaged in planning the removal of the victim from the domestic violence situation or reasonably believing reporting the violence would pose an imminent threat to the life or safety of a person;
§ upon receipt of the report, the police officer must take reasonable steps to ensure the report is investigated.

The Bill when passed may be cited as the Domestic and Family Violence Amendment Act 2008.

This clause states that the Act amends the Domestic and Family Violence Act 2007.

This clause replaces the definition of the term “corresponding law” such that the terms is defined to include both:

Clause 4 Amendment of section 43 (what police officer must do after the DVO is made)

This clause corrects an inconsistency in the Domestic and Family Violence Act 2007, amending section 43(3) by replacing the word “and” with the word “or”.

Section 43(3) states that, as far as it is reasonably practicable to do so, the explanation that a police officer must give to a defendant under section 43(2) must be given in a language and in terms that are likely to be readily understood by the defendant.

However, the general requirement set out in section 89(3) with respect to an issuing authority explaining the effect of a domestic violence order is that the explanation must be given either in a language or in terms that are likely to be readily understood by the person.

Therefore, section 43(3) is amended such that, as far as it is reasonably practicable to do so, the explanation that a police officer must give to a defendant under section 43(2) must either be given in a language or in terms that are likely to be readily understood by the defendant.

Clause 5 Amendment of section 121 (Penalty for contravention of DVO – adult)

· section 121(2) to replace the words “such an offence” with the words “a DVO contravention offence”; and

· section 121(5) to replace the words “found guilty of a second or subsequent offence” with the words “who has previously been found guilty of a DVO contravention offence”.
This amendment (together with the use of the new term

“DVO contravention offence”) ensures that if an adult has been found guilty of a breach of a restraining order under the repealed

Domestic Violence Act or a breach of a similar order made under a corresponding law in another State, Territory or New Zealand, then this offence will be taken into account by a court when determining the penalty under sections 121(2) and 121(5) for an adult who contravenes a domestic violence order.

Clause 6 Amendment of section 122 (Penalty for contravention of DVO – a young person)

This clause amends section 122(2) to replace the words “such an offence” with the words “a DVO contravention offence”.

“DVO contravention offence”) ensures that if a young person has been found guilty of a breach of a restraining order under the repealed

Domestic Violence Act or a breach of a similar order made under a corresponding law in another State, Territory or New Zealand, then this offence will be taken into account by a court when determining the penalty under section 122(2) for a young person who contravenes a domestic violence order.

Northern Territory believes on reasonable grounds that either or both of the following circumstances exist:

· a person has caused, or is likely to cause, harm to someone else with whom the other person is in a domestic relationship; or
· another person’s life or safety is under serious or imminent threat because domestic violence has been, is being or is about to be committed; and
does not, as soon as practicable after forming that belief, report

· the belief; and
· any knowledge forming the grounds for the belief; and
· any factual circumstances on which that knowledge is based.
Section 124A(1) provides that the maximum penalty for the offence is 200 penalty units, currently the equivalent of $22,000.

Section 124A(2) provides that it is a defence to this offence that the person has a reasonable excuse.

Section 124A(3) provides that a reasonable excuse includes, but is not limited to, the person establishing one or more of the following:

· they reasonably believed that another person had already formed the same belief and made a report to a police officer under section 124A(1);
· they were involved in planning to remove the victim from a serious and imminent threat and intended to report once the victim was removed from that threat;
· they reasonably believed that, if a report of his or her belief about the circumstances were made as soon as practicable, a serious or imminent threat to someone’s life or safety may result.
Section 124A(4) provides that upon receipt of the report, the police officer must take reasonable steps to ensure the report is investigated.

Section 124A(5) provides that section 124A has effect despite another law in the Northern Territory.

The term “harm” in section 124A is defined to mean physical harm that is serious harm.

The definition of the term “physical harm” refers to section 1A of the Criminal Code. Section 1A(2) of the Criminal Code states that physical harm includes “unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time”.

The definition of the term “serious harm” refers to section 1 of the Criminal Code. Section 1 of the Criminal Code defines “serious harm” as meaning “any harm (including the cumulative effect of more than one harm) (a) that endangers, or is likely to endanger, a person’s life; or

The new section 125 provides the same level of protection as the current section 125 (which is being repealed) but extends this protection to reports made to police by all persons, rather than just by health professionals.

The new section 125(1) provides that a person acting in good faith in making a report under section 124A is not criminally or civilly liable or in breach of any professional code of conduct for making the report, or for disclosing any information in the report.

Section 125(2)(a) provides that the report or evidence of its content is not admissible in proceedings before a court without leave of the court.

Section 125(2)(b) provides that a person cannot be compelled to give evidence, or to produce a record, about the report or the identity of the person who made the report, without leave of the court.

Section 125(3)(a) and (b) provide that leave of the court may only be granted if:

· the report, evidence or record is of critical importance to the proceeding; and
· failure to grant the leave would prejudice the proper administration of justice.

Northern Territory Explanatory Statements

DOMESTIC AND FAMILY VIOLENCE AMENDMENT BILL 2008