Friday, 14 November 2025

 Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:46): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Bill 2025:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill contains a package of reforms designed to improve justice system responses to family violence, stalking and sexual violence, and strengthen protections for victims and their families.

Part 2 of the Bill amends the Family Violence Protection Act 2008 (FVPA) to:

• improve processes for serving family violence intervention orders (FVIOs) and other documents

• establish a two-year default length for final FVIOs

• include additional considerations for applying for and issuing Family Violence Safety Notices (FVSNs) and making FVIOs to reduce the risk of misidentification of the predominant aggressor and to allow consideration of whether child respondents or respondents with a cognitive impairment understand the order being made against them

• introduce a minimum age of 12 for a respondent to a FVIO

• expand the circumstances where legal representation must be provided to self-represented applicants to cross-examine a respondent in contested FVIO applications and to self-represented respondents for cross-examination by the legal representative of an applicant

• ensure courts can make FVIOs regardless of whether the alleged family violence occurred outside Victoria

• ensure that young people listed as a protected person on their parent’s order can continue to be protected under the order after they turn 18

• expand the definition of family violence to capture stalking, systems abuse and mistreatment of animals

• clarify that the court can make conditions on a FVIO in relation to animals and locating a protected person.

The Bill also makes amendments to the:

• Crimes Act 1958 to amend the offence of stalking to improve its clarity and practical application and to reintroduce alternative verdicts for certain penetrative sexual offences.

• Criminal Procedure Act 2009 to introduce new statutory functions for intermediaries to better reflect their role in practice and to extend certain existing witness protections to stalking cases.

• Evidence (Miscellaneous Provisions) Act 1958 to allow notice relating to confidential communications and protected health information for protected persons who are a child or a person with a cognitive impairment to be provided to a parent, guardian or other appropriate person.

• Jury Directions Act 2015 to make available statutory directions on consent for the offence of non-fatal strangulation and intimate image offences and to re-enact repealed directions on consent for historical offences to improve visibility.

• Personal Safety Intervention Orders Act 2010 to allow a court to make interim orders on its own motion in criminal proceedings and bail hearings for certain offences.

Human Rights Issues

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Generally, the Bill promotes a number of fundamental human rights. Where there are any limitations on human rights, I am of the view that they are justified and reasonable, as discussed below.

Improvements to intervention orders and safety notices to better protect victim-survivors

The primary purpose of the reforms to FVIOs and FVSNs is to strengthen the protections available to victim-survivors of family violence, promoting the interests protected by several Charter rights. The amendments will achieve this by better enabling courts and police officers to act to reduce the risk of harm, and to allow for the swift and effective protection of adults and children who are victim-survivors of family violence. Accordingly, these amendments promote the following Charter rights:

• the right to equality (section 8)

• the right to life (section 9)

• the protection from cruel, inhuman and degrading treatment (section 10)

• the protection of families and children (section 17)

• the right to property (section 20)

• the right to liberty and security of person (section 21(1)), and

• the right to a fair hearing (section 24).

Right to equality (section 8)

Section 8 of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. ‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in section 6 of that Act, which relevantly includes age, race, gender identity, sexual orientation, and disability. Section 8(4) of the Charter further provides that measures taken for the purpose of assisting or advancing disadvantaged persons or groups of persons do not constitute discrimination.

The Bill promotes the right to equality by ensuring that all people have equal access to protection from family violence. A key issue in the family violence system is the misidentification of the predominant aggressor. Misidentification refers to situations where a victim-survivor of family violence is incorrectly named as the perpetrator in a family violence proceeding rather than the person most in need of protection. This may occur where the predominant aggressor is not obvious, for example, where the victim-survivor has used retaliatory force to protect themself or another person from family violence. Certain cohorts are at greater risk of being misidentified, such as women, Aboriginal and Torres Strait Islander people, women from migrant and/or culturally and linguistically diverse communities, women with disabilities, and LGBTIQA+ people. The consequences of misidentification are severe – for instance, it may result in women having children removed by child protection because they were misidentified as the primary aggressor, loss of housing or having court processes initiated against them. In addition, the real perpetrator is not held to account and is able to continue to perpetrate family violence.

To address these issues, the Bill acknowledges that certain cohorts are at increased risk of misidentification, and requires police officers and the courts to consider certain misidentification factors when applying for or issuing a FVSN or making a FVIO. This is intended to address concerns that people in the LGBTIQA+ community, those with a culturally and linguistically diverse background, and Aboriginal victim-survivors are often wrongly identified as perpetrators. This falls within the exception under section 8(4), being a special measure to assist or advance the protection of Aboriginal people and members of a group with a protected attribute.

Protection of families and children (section 17)

Section 17(1) of the Charter recognises the family as the fundamental group unit of society and entitles it to protection by society and the State. Section 17(2) recognises that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

The Bill promotes the protection of families and children by strengthening the framework of intervention orders and safety notices and streamlining the process for victim-survivors to obtain these protections. For example, the introduction of a two-year default FVIO length enables affected family members to receive consistent and predictable protection, protecting families and children from repeated exposure to the stress and trauma of re-litigating their safety, while still allowing longer or shorter orders to be made where appropriate. The reforms concerning misidentification of the predominant aggressor are particularly important for families and children. These reforms reduce the risk that a parent who is a victim-survivor is wrongly subject to an order which may in turn result in longer-term, negative consequences for the family unit. This works to safeguard the care and wellbeing of children and protect the family unit.

The Bill also promotes the best interests of the child by introducing a minimum age of 12 for FVIO respondents and, when deciding whether to make an order against a child respondent, allowing the court to consider that child’s age and maturity and the child’s ability to understand the order and comply with the conditions. These amendments recognise the special vulnerability of children and adopt measures to protect the child and foster their development. The minimum age requirement is also consistent with the increase in the minimum age for personal safety intervention orders and the age of criminal responsibility in Victoria. These amendments ensure that the system is more responsive to the developmental needs and vulnerabilities of children, thereby promoting their rights under sections 17(2) of the Charter.

Other promoted rights

The following family violence reforms also promote rights under the Charter:

• By ensuring swift and effective protections through own-motion PSIOs, the Bill promotes the right to life (section 9) and the right to liberty and security of person (section 21(1)), as well as protecting against serious harm consistent with the right to protection from cruel, inhuman and degrading treatment (section 10).

• Expanding access to legal representation for self-represented applicants and respondents in cross-examination promotes the right to a fair hearing (section 24) by protecting victim-survivors from direct confrontation by perpetrators in court and minimising the risk of misidentification of the predominant aggressor.

• Expressly providing that courts may make conditions on a FVIO about animals, including directing a respondent to return a specified animal to the affected family member, promotes the protection of property rights under section 20.

In addition to promoting the above rights, the proposed reforms may limit certain rights protected under the Charter. As discussed below, in my view, any limitations are justified and reasonable.

Right to freedom of movement (section 12)

Section 12 provides that a person is entitled to move freely within Victoria, to choose where to live in Victoria, and to freely enter and leave Victoria.

The Bill may limit the right to freedom of movement by establishing a two-year default length of FVIOs, and empowering courts to make own-motion interim PSIOs during bail and criminal proceedings. For FVIOs, the default length amendments will also apply to a person serving a term of imprisonment for offending related to family violence setting the default length for a FVIO as the total effective sentence and an additional 12 months. These reforms limit the respondent’s freedom of movement by potentially restricting the locations they can attend and their ability to approach protected persons.

Any limitation is necessary to achieve the purpose of protecting victim-survivors of family and personal violence, which is of the highest importance. These restrictions also promote the right of freedom of movement for victim-survivors of family violence and victims of stalking. The measures are proportionate because restrictions are only imposed where a court is satisfied they are necessary to protect a person’s safety, remain subject to judicial discretion, and, in the case of interim PSIOs, are only in place until a decision is made on a final order.

In the case of a person serving a term of imprisonment for family violence offending, it is proportionate that a person remains on a FVIO after their total effective sentence as it is understood that when a respondent leaves prison there is an increased risk period for an affected family member. However, courts will retain discretion to impose a shorter FVIO than the presumed default period. Accordingly, any limitation on freedom of movement is justified under section 7(2) of the Charter.

Right to privacy (section 13)

Section 13 provides that every person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

Intervention orders can restrict a respondent’s relationships with family members and their access to their home. The Bill creates a two-year default duration of FVIOs which will likely prolong the period of time that respondents are subject to conditions on how they interact with affected family members and any protected persons, and whether they can reside in the family home. The Bill also strengthens service provisions, which limits a respondent’s right to privacy by requiring they provide their address to police before an order or notice is served on the respondent.

These measures serve the legitimate purpose of ensuring the safety of affected family members and victims, through greater protection from intervention orders and facilitating effective service of orders and notices. These interferences with privacy are neither unlawful nor arbitrary; they are authorised by legislation, subject to judicial oversight, and imposed only where necessary to protect the safety of affected family members. Courts retain discretion to shorten, vary or revoke orders. On this basis, any limitations are reasonable and justified under section 7(2) of the Charter.

Right to freedom of expression (section 15) and right to freedom of association (section 16)

Section 15 provides that every person has the right to hold an opinion without interference and the freedom to seek, receive and impart information and ideas of all kinds. Section 16 provides that every person has the right to freedom of association with others.

Longer default FVIO durations, and own-motion interim PSIOs in bail and criminal proceedings may limit a respondent’s right to the freedom of expression. This is because these amendments limit who a respondent can speak to by restricting contact with protected persons. However, section 15(2) must be read in conjunction with section 15(3) of the Charter, which provides that special duties and responsibilities attach to the freedom of expression, and thus the right can be subject to lawful restrictions reasonably necessary to respect the rights and reputation of others. The limitation on the freedom of expression imposed by these amendments would fall into this category: an interim PSIO will only be able to be made in limited high-risk matters and if it is necessary, on the balance of probabilities, to protect the safety of the alleged victim.

Similarly, courts hold discretion to impose a shorter FVIO than the default period. These amendments protect a protected person’s safety and right to liberty and security of person (section 21), which is a fundamental human right protected by the Charter. The restriction on the freedom of expression is very narrowly targeted, and respondents will still be able to communicate freely with other people. As such, any limitations are in my view reasonable and justified under section 7(2) of the Charter.

These amendments also restrict the people with whom the respondent can associate, preventing them from contacting the family members or victim protected by the order. The respondent’s right to freedom of association (section 16) may be limited on the basis that it is necessary to protect the safety of those protected by the order and there are no less restrictive measures available to achieve this purpose. As such, these amendments are reasonable and justified under section 7(2) of the Charter.

Right to a fair hearing (section 24)

Section 24 of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The Bill empowers a court to make an own-motion interim PSIO during bail or criminal proceedings for certain serious offences, including potential circumstances where the respondent has not had a full opportunity to present their case. This engages the right to a fair hearing, because a respondent may be temporarily subject to restrictions without first being heard. However, any limitation on the right is reasonable and justified as the purpose is to ensure courts can act swiftly to protect victims of alleged serious violent, sexual or stalking conduct during the critical stages of the criminal process, where risks may escalate. In addition, the limitation is temporary and only operates until the matter is brought back before the court, at which point the respondent has an opportunity to be heard. The limitation is safeguarded by judicial discretion as orders are only made where the court is satisfied, on the balance of probabilities, that the order is necessary for safety and only on an interim basis, with opportunity for the respondent to contest the making of a final order. There are no less restrictive means available that would adequately protect the safety of victims at short notice. Accordingly, any limitation on the right to a fair hearing caused by own-motion interim PSIOs is reasonable and justified under section 7(2) of the Charter.

Clarifying the stalking offence and extending certain witness protections to stalking cases

The Bill amends the offence of stalking under section 21A of the Crimes Act 1958 to improve its clarity and practical application, and to expressly provide in section 21A(2) that causing harm (or threatening to do so) to any animal in the presence of the victim, another person or where the harm or threat to an animal will be discovered by the victim or another person could be a form of stalking behaviour if it meets the relevant criteria to establish an offence of stalking (i.e. there must also be a course of conduct involving certain behaviour directed at the victim).

The Bill also extends certain witness protections in the Criminal Procedure Act (CPA) to cases involving a charge of stalking. These include enabling courts to prohibit an accused person from personally cross-examining protected witnesses, providing for alternative arrangements for witnesses giving evidence, using Visual and Audio Recorded Evidence (VARE) and ground rules hearings for a witness who is a child or person with a cognitive impairment, and allowing for special hearings to accommodate complainants who are children or have a cognitive impairment. These measures aim to enhance the protection and support available to complainants and witnesses in stalking cases and to improve their experience in the criminal justice system.

The overall purpose of these amendments is to strengthen the safety and dignity of victims and witnesses in stalking cases, thereby promoting the interests protected by several Charter rights. In particular, the amendments promote the following Charter rights:

• the right to equality (section 8)

• the right to freedom of movement (section 12)

• the right to privacy (section 13), and

• the protection of families and children (section 17).

The clarification of the offence of stalking promotes the right to freedom of movement and the right to privacy. While the amendments do not alter the existing broad scope of the offence, they will continue to ensure that the criminal law effectively and clearly deters behaviours that otherwise can coerce or intimidate victims into limiting their actions or movements. In addition, clarifying the scope of behaviours that constitute stalking promotes the right to privacy by protecting the physical and psychological integrity, including the personal security and mental stability, of victims of stalking.

The extension of witness protections to stalking matters, particularly in relation to supports for a complainant who is a child or person with a cognitive impairment, promotes the right to equality (section 8) and the right to protection of families and children (section 17). The protections extended to children and people with a cognitive impairment create substantive equality by supporting their participation in the criminal justice process. The best interests of the child are protected by ensuring that the system is more responsive to the vulnerabilities of children through extending VARE and ground rules hearings to child witnesses and special hearings to child complainants in stalking cases. Similarly, the prohibition on personal cross-examination of protected witnesses safeguards the family unit, by protecting families from exposure to the stress and trauma of being questioned by the accused.

Like sexual offence and family violence cases, the nature of stalking cases warrants additional protections for witnesses and complainants. I am satisfied that these special protections are necessary to protect children and other witnesses from harm, and to minimise unnecessary trauma when giving evidence. I am also satisfied that the greater protections will ensure that this cohort of witnesses are more supported to participate in the criminal justice system.

Rights in a criminal proceeding (section 25)

The amendments to the CPA to extend certain witness protections to stalking cases also engage and in some cases may limit certain rights in a criminal proceeding. However, in my opinion, any limitation is reasonable and demonstrably justified under section 7(2) of the Charter.

Section 25(2) of the Charter sets out rights in criminal proceedings including specific minimum guarantees in these proceedings. Relevant to the CPA amendments outlined above are the rights to:

• (2)(d) – be tried in person, and to defend personally or through legal assistance, and

• (2)(g) – examine, or have examined, witnesses against the accused, unless otherwise provided for by law.

I note that the extension of alternative arrangements for giving evidence in stalking cases may engage but does not, in any way, limit an accused person’s ability to challenge the evidence against them either by presenting their own evidence or through cross-examination of witnesses for the prosecution. Similarly, the expansion of VAREs and special hearings to certain witnesses or complainants in stalking cases does not limit any ability of the accused to properly examine witnesses.

Extending ground rules hearings to stalking complainants may engage the accused’s right under section 25(2)(g) of the Charter to examine witnesses against the accused. During ground rules hearings, the court considers the communication, support or other needs of witnesses and decides how the proceeding is to be conducted to fairly and effectively meet those needs. As a result, the subject matter and style of cross-examination may be limited to protect witnesses from unnecessarily stressful or intimidating questioning, and irrelevant questioning. Any limitation on cross-examination of witnesses occasioned by the Bill would be provided for by law and therefore would not interfere with the express right to examine witnesses at section 25(2)(g). Any limits on cross-examination imposed through ground rules hearings are rationally connected to the purpose of minimising trauma, and may assist in eliciting clear evidence from witnesses, promoting fair and efficient hearings. There is no blanket ban on cross-examination and no set rules in respect of how a witness’ evidence is taken following a ground rules hearing – these being agreed between the parties and the judge at the ground rules hearing. The accused can seek leave to cross-examine and to make submissions with respect to the topics they would like to cross-examine a witness on in a ground rules hearing. I am of the view there are no less restrictive means available to achieve the purpose of the reforms, which strengthen protections for victims and witnesses of stalking and improve their experience of the criminal justice system.

The prohibition on personal cross-examination of protected witnesses in stalking proceedings engages and may limit the right in section 25(2)(d) as an accused is unable to defend themself personally. However, the Bill retains the ability for a self-represented accused to be defended through legal assistance in the limited circumstance where a protected witness (e.g. family member of the accused) is to be cross-examined. The court may also order that an accused be legally represented for that cross-examination. The amendment does not prevent the accused from conducting their defence personally for any other aspect of the trial. I am of the view that the nature of the limitation is both reasonable and justified as it is closely connected to its purpose of protecting certain witnesses from personal cross-examination by the accused that may perpetuate stalking behaviour, ensuring protected witnesses can participate fully in the justice process.

While the right in section 25(2)(g) is engaged by the prohibition on personal cross-examination, it is not limited as this prohibition is provided for by law. Further, the accused retains the ability to have the witness’ evidence tested through legal representatives, with Victoria Legal Aid ordered to provide representation, where required, for a self-represented accused. This ensures that the evidence can still be adequately challenged and that a fair trial is preserved. Judicial directions or case management alone do not sufficiently protect certain witnesses from the harms associated with direct questioning by the accused.

I am therefore satisfied that the Bill in respect of ground rules hearings and the prohibition on personal cross-examination is compatible with section 25 of the Charter.

Other reforms

The Bill will reintroduce section 425 into the Crimes Act 1958 by providing alternative verdicts for certain offences involving sexual penetration. Recent Court of Appeal decisions limit the application of the general provision in the CPA that allows for alternative verdicts. This provision will improve sexual offence prosecutions by clearly providing that certain offences involving sexual touching are alternatives to certain offences involving sexual penetration. This promotes the right to a fair hearing (section 24) and the rights in criminal proceedings (section 25) by ensuring that a jury can return appropriate verdicts.

The Bill introduces new statutory functions for intermediaries to better reflect their role in practice. Intermediaries are impartial officers of the court who help communication with vulnerable witnesses, including children and those with a cognitive impairment. The amendments provide that an intermediary can make recommendations to the court about witness communication and otherwise assist the court or a legal practitioner with witness communication. The Bill also allows the court to consider intermediary recommendations in ground rules hearings. These amendments promote the following rights by removing barriers that prevent vulnerable witnesses from effectively participating in criminal proceedings and reducing trauma faced by these witnesses while giving evidence, ensuring that the most reliable evidence is adduced:

• the right to equality (section 8)

• the right to freedom of expression (section 15)

• protection of families and children (section 17), and

• the right to a fair hearing (section 24).

Given the use of intermediaries impacts the examination of witnesses, the amendments may engage the accused’s right under section 25(2)(g) to examine witnesses against the accused, unless otherwise provided for by law. While intermediaries assist certain witnesses to communicate, they do not do so in a way that limits the rights of the accused. The accused and the prosecution continue to have the same rights of examination and cross-examination with respect to each witness. Further, as noted above, any changes that the Bill makes to the examination of witnesses would be provided for by law and would therefore not limit with the accused’s right under section 25(2)(g).

The Bill may engage a person’s right to privacy (section 13) by amending the Evidence (Miscellaneous Provisions) Act 1958 to allow notice relating to a protected person’s confidential communications to be given to a parent, guardian or other suitable person, where the protected person is a child or is a person with a cognitive impairment. The purpose of this reform is to ensure that someone who can understand the content of the notice will receive a copy, to enable them to assist the protected person to consider if and how they wish to participate in a confidential communications application. Any impact on the right to privacy is balanced by requiring the prosecuting party to consider the protected person’s views as to whom the notice should be provided to, thereby promoting the protected person’s agency. The prosecuting party must also consider whether the alternative person to receive the notice is appropriate. In this way, I consider that any limit the amendments may impose on the right to privacy is reasonable and necessary to ensure the protected person is aware of their rights to participate in confidential communications applications. I further consider that this reform will promote the right to equality before the law (section 8) by putting processes in place to support children and adults with a cognitive impairment to better understand how they can participate in confidential communications applications.

Finally, the Bill amends the Jury Directions Act 2015 to ensure statutory directions on consent and reasonable belief in consent are available when relevant in trials for intimate image sexual offences and non-fatal strangulation. The amendments also improve visibility of jury directions by re-enacting repealed jury directions on consent for historical offences. These amendments promote the right to a fair hearing (section 24) by consolidating and increasing visibility of jury directions for complex matters such as historic sexual offences prosecuted under repealed provisions and by addressing misconceptions that may arise in trials for non-fatal strangulation and intimate image sexual offences where the accused raises a defence of consent.

Sonya Kilkenny

Attorney-General

 Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:47): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Family violence happens across all communities, in all kinds of relationships and all too often. In 2023, Victoria Police responded to 94,170 family violence incidents – one every 6 minutes – with nearly three quarters of victims being women and girls. Addressing family and gendered violence is critical to improving community safety by helping to ensure the whole community, including women and children, can live free from harm and fear.

The Victorian Government has implemented all 227 recommendations of the Royal Commission into Family Violence, delivering state-wide improvements to police, justice and support service response. This government remains committed to ending family and sexual violence in Victoria but there is still further work to do to hold offenders to account and ensure victim-survivors have the support they need to stay safe. We can further improve experiences and outcomes for victim-survivors, and strengthen justice system responses to ensure accountability, effective interventions and sustained behaviour change.

This is why the Victorian Government has committed to a package of 16 initiatives to address gender-based violence and strengthen women’s safety, including further investment in service support and initiatives to respond to family and sexual violence, and the legislative reforms in this Bill.

The suite of reforms in the Bill builds on previous reform to ensure the justice system continues improving its response to the needs of victim-survivors of family violence, stalking and sexual offences. The Bill prioritises the safety of victim-survivors as the paramount consideration for all the reforms, while appropriately balancing the rights of respondents. Where possible, the reforms reflect the views of the people most affected by gender-based violence, including Aboriginal women. This Bill has been developed in consultation with a broad range of stakeholders, including victim-survivors and their advocates, legal and government stakeholders, whose input has been invaluable in helping ensure the Bill is workable, fair and effective.

I would particularly like to thank the following individuals, organisations and working groups for their advocacy, dedication and contributions to this Bill: Federation of Community Legal Centres, Victorian Aboriginal Legal Service, Djirra, Women’s Legal Service Victoria, Aboriginal Justice Caucus, Law Institute of Victoria, Victims of Crime Commissioner, Victims of Crime Consultative Committee, Victim Survivors Advisory Council (in particular the previous Chair and Deputy Chair Rivka Martin and Conor Pall), Dhelk Dja, Family Violence Reform Advisory Group and the LGBTIQA+ Justice Working Group.

The reforms also address other forms of gendered violence that can occur both in and outside the context of family violence. The Bill clarifies the stalking offence and delivers improvements to Personal Safety Intervention Orders (PSIOs), used to protect people against violence between non-family members. The Bill provides better protection and support to improve the experience of complainants and witnesses in stalking and sexual offence proceedings, reducing re-traumatisation in the criminal trial process. The Bill also contains procedural reforms to provide more clarity and reduce complexity in sexual offence proceedings.

FAMILY VIOLENCE REFORMS

Family Violence Intervention Orders (FVIOs) and Family Violence Safety Notices (FVSNs) play a central role in the justice system framework for addressing family violence, imposing conditions on perpetrators and providing a protective response for victim-survivors. While an FVIO or FVSN is a civil mechanism, breaches of the conditions of FVIOs or FVSNs carry significant criminal consequences of up to two years imprisonment, or up to five years imprisonment for more serious or repeated breaches.

The reforms in this Bill will streamline processes and promote perpetrator accountability and quicker and longer protection for victim-survivors.

Ensuring longer Family Violence Intervention Orders

The Bill amends the Family Violence Protection Act 2008 to introduce a new default length for a final FVIO of two years to ensure longer protection for victim-survivors and reduce the need for re-traumatising court appearances. This aligns with equivalent provisions in New South Wales, Western Australia and the Australian Capital Territory.

Currently, while courts can issue a final FVIO for any duration against adults, in practice, the majority of final orders are made for a period of 12 months or less. Victim-survivors have raised that this is not long enough to appropriately manage risk, including for the respondent (the person subject to the order) to address underlying issues such as mental health concerns or for other risk factors to resolve, like family law matters. To avoid orders lapsing when protection is still required, affected family members (the people protected by FVIOs) need to go back to court to apply for an extension and explain why an order is still needed.

The new default length will provide greater certainty for victim-survivors and a baseline for determining length of FVIOs. The default period will only apply to adult respondents. The Bill preserves the existing maximum length of 12 months for an FVIO made against a child, in recognition of the different considerations that apply in those cases.

Importantly, courts will still have discretion to make orders that operate for a longer or shorter duration than the default period if appropriate, taking into account the existing factors in the Family Violence Protection Act.

The Bill will also introduce a default length for final FVIOs for respondents who are serving a custodial sentence for family violence offending at the time the FVIO is made. Where the total effective sentence (including parole and non-parole periods) is for 12 months or more, the default period will be the total effective sentence and an additional 12 months. This will help ensure that victim-survivors continue to be protected after a respondent is released from imprisonment, which is a recognised period of heightened risk.

Responding to risks of misidentification

The Bill will help minimise the risk of victim-survivors being incorrectly identified as the perpetrator rather than the person most in need of protection. Misidentification of the predominant aggressor can occur in a range of circumstances, including where the victim-survivor’s presentation and characteristics are misinterpreted, or they use retaliatory force to protect themselves or another person from family violence. Certain cohorts are more at risk of being misidentified, including Aboriginal people, particularly Aboriginal women, migrant and refugee women, women with disabilities, and LGBTIQA+ people.

Currently, neither the occurrence nor risk of misidentification are explicitly recognised in the Family Violence Protection Act despite its potential for severe, long-lasting consequences. Stakeholders have reported that often issues of misidentification are not considered unless the matter is taken to a contested hearing, which can take some time. Victim-survivors may also feel pressure to consent to orders without admissions to avoid further hearings which bring them in contact with the perpetrator. Misidentification can create or exacerbate barriers to access services for victim-survivors, or subject them to other civil and criminal responses such as the loss of housing, the involvement of Child Protection and for alleged breaches of orders. Stakeholders have emphasised the importance of addressing misidentification alongside other reforms in the Bill, such as the default length for FVIOs, to reduce the risk of victim-survivors being incorrectly entrenched in the system as respondents.

These reforms are informed by, and are intended to complement, the considerations in the Family Violence Multi-Agency Risk Assessment and Management Framework (MARAM), which ensures services are effectively identifying, assessing and managing family violence risk, including the risk of misidentification. As MARAM informs and improves existing tools at the discretion of the relevant organisation without overriding operational decision-making tools, there is scope for the legislation to support better incorporation of MARAM principles and considerations into operational decision making.

The Bill requires police and courts to consider if the respondent has been misidentified taking into account factors intended to help decision-makers prevent or consider whether misidentification has occurred when applying for and issuing a FVSN or making a FVIO. The purpose of the amendments is not to add a new threshold or replace the existing tests that apply to FVSNs and FVIOs, but to encourage active consideration of misidentification and to minimise the risk of misidentification occurring.

The relevant factors include consideration of the nature of the incident (which is to be viewed in the context of the relationship history and dynamic) and whether any party’s actions may have been for the purpose of protection of self or others. The Bill also directs decision-makers to consider whether any of the parties may be at an increased risk of being misidentified as the respondent, if any of the parties belong to a specified cohort. This acknowledges that misidentification disproportionately affects people such as Aboriginal women, will ensure decision-makers turn their minds to the risk of misidentification when making a determination, and encourage a consistent approach to applications for, and issuing of, FVSNs and FVIOs.

Strengthening and modernising the definition of family violence to recognise stalking, systems abuse and mistreatment of animals

Stalking in family violence matters

The Bill amends the Family Violence Protection Act to expressly include stalking in the definition of family violence and make clear courts may include conditions in FVIOs prohibiting a respondent from locating or attempting to locate an affected family member (such as using electronic tracking devices on mobile phones or cars).

The amendments reflect the prevalence of stalking conduct in family violence dynamics and ensure conditions of FVIOs may be explicit about prohibiting such behaviour, which is designed to intimidate and create fear for victim-survivors.

While stalking is defined in reference to the stalking offence under section 21A of the Crimes Act 1958, it is not intended that the elements of this offence would need to be proven for the conduct to constitute family violence.

Systems abuse

Systems abuse refers to the manipulation of actions or decisions of professionals in the system to further coerce and control victim-survivors. This can include vexatious court applications or false reports to police, Child Protection, child family services such as child support agencies, health services and immigration entities.

The Bill expressly captures systems abuse in the definition of family violence. This will embed contemporary understandings of family violence dynamics in the legislation. It will also acknowledge the prevalence of systems abuse, raise awareness of the circumstances where perpetrators misuse and weaponise protections for victim-survivors as a mechanism for further harm, and help guide the interpretation of legislation by the judiciary.

Animals used to perpetrate family violence

The Bill broadens the definition of family violence to capture common ways that animals may be used to perpetuate family violence. These circumstances include where a perpetrator uses an animal to punish or control a victim-survivor by withholding the animal’s food, water or medication, or threatening to sell or abandon the animal.

The Bill also makes clear that the court can make FVIO conditions in relation to animals. Perpetrators often target the animal with which the victim-survivor has the greatest emotional connection (such as pets) or on which the victim-survivor relies for their livelihood (such as livestock or an assistance animal). These reforms will clarify that courts can, for example, prohibit respondents from using any animal to commit family violence or directing the respondent to return a specific animal that belongs to the protected person.

Improving protections for children and vulnerable cohorts

Continuing protection for young people after they turn 18

The Bill clarifies that a child listed as a protected person on their parent’s FVIO who turns 18 can remain protected for the duration of that order. As the Family Violence Protection Act is currently silent on the issue, this reform addresses inconsistent practice which has created uncertainty for young people. The reform will implement the intent of Recommendation 1 from Stage 1 of the Victorian Law Reform Commission’s community law reform project on Family Violence Intervention Orders for Children and Young Adults.

Making it clear that protection does not lapse when children listed on their parent’s order turn 18 ensures that young people will not have to return to court to apply for their own order when the need for protection has already been established.

Introducing a minimum age for respondents

The Bill will introduce a minimum age of 12 years for respondents to FVIOs. Currently, children of any age can be subject to FVIOs. Children who are very young are unlikely to be able to properly understand their obligations under an FVIO. This can undermine the effectiveness of orders, with the behaviour better managed through alternative therapeutic pathways. While FVIOs are civil orders, there are criminal consequences for contraventions. The absence of a prescribed minimum age for FVIOs can result in situations where a child cannot be held criminally responsible for breaching an FVIO because they are under the minimum age of criminal responsibility. There is also an inconsistency with the PSIO scheme which does have a prescribed minimum age.

The minimum prescribed age of 12 years for respondents to FVIOs is consistent with the minimum age of criminal responsibility and minimum age of respondents for PSIOs, both of which were raised from 10 to 12 years of age following the commencement of provisions in the Youth Justice Act 2024 on 30 September 2025.

Consideration of age or impairment to recognise children and other vulnerable cohorts

The Bill provides that in considering making an FVIO where a child or person with a cognitive impairment is the respondent, the court may consider their ability to understand the nature and effect of the order and ability to comply with the conditions of the order. This will help prevent FVIOs being made in circumstances where they will be ineffective and unfair, and broadly align with the considerations that apply to the making of PSIOs.

Improvements to service of Family Violence Intervention Orders

The Bill will streamline processes for the timely service of FVIOs to ensure that protection for affected family members starts as soon as possible and strengthen perpetrator accountability, including by making it harder for respondents to avoid service.

An order is only enforceable once it has been served or an explanation provided to the respondent. Unless otherwise ordered by the court, all documents under the Family Violence Protection Act, including FVIOs, must be personally served on a respondent. In practice, personal service is generally effected by Victoria Police members.

Personal service is an important opportunity to ensure respondents receive and understand an order, increasing the likelihood of compliance and therefore better supporting the protected person’s safety. However, personal service can be time consuming and resource intensive, particularly when a respondent is deliberately avoiding service. The Family Violence Protection Act provides ways to overcome this by allowing the court to make orders for alternative or substituted service. The Bill strengthens these options where it is appropriate to do so, while still prioritising personal service.

Providing legislative guidance for substituted service

Substituted service allows for non-personal service in certain circumstances, such as where a respondent is intentionally evading personal service. This may include leaving the documents with a person other than the respondent or at a specific location.

The Bill provides a list of factors that may be considered when the court is deciding whether to make an order for substituted service. This list is intended to support police in preparing applications and improve consistency in decision-making, while ultimately retaining court discretion to determine the appropriate method of service.

The Bill also changes the threshold for making an order for substituted service from ‘not possible’ to ‘not practicable’ and enables courts to make such orders on their own motion, without requiring police or an affected family member to make an application, to ensure FVIOs may be served as quickly as possible in appropriate cases.

Streamlining service on respondents in prison

The Bill streamlines service of family violence documents for respondents in prison who frustrate service by deliberately avoiding service. Like other personal service practices in the community, Victoria Police members are given responsibility to serve respondents in prison. If a respondent in prison refuses to accept a visit from police or service of a family violence document during a visit, police are required to attempt service at further visits or apply to the court for substituted service, delaying protection for affected family members.

The Bill establishes a new process for service by deeming family violence documents to be served on adult respondents in prison by leaving the documents with the prison’s Governor in certain circumstances. Police must attempt personal service in the first instance and arrange to visit the prisoner, including confirming the prisoner is being held at the prison, and the prisoner must be aware of the purpose of the visit. Once the documents have been left with the Governor, service is taken to have been effected.

The Governor must then arrange for the document to be provided to the respondent as soon as reasonably practicable. This is not a service responsibility but a critical safeguard to ensure the respondent has a copy of their documents.

The Bill also provides that if a respondent has been released from prison before the document could be delivered, the Governor must notify the Chief Commissioner of Police to arrange for the documents to be delivered to the respondent in the community. This situation is expected to be rare but will ensure documents are delivered to the respondent as expeditiously as possible, noting that exit from custody can heighten the risk of family violence occurring.

Streamlining service by other prescribed persons in the future

While the Family Violence Protection Act does not prohibit other agencies from serving FVIOs, the responsibility generally falls to police. The Bill lays the groundwork for allowing other prescribed classes of persons to serve documents in the future. The Bill will also allow the prescribed persons to provide proof of service in the same streamlined manner as courts and police, rather than the more onerous affidavits that are currently required.

Extending the time for serving counselling orders

The Bill extends the timeframe for respondents to be served with counselling orders from 10 to 15 days. This addresses concerns from stakeholders that the current timeframe is difficult to meet, which may result in respondents not engaging in court-ordered counselling to take responsibility for their behaviour and make positive changes.

Extending the reach of Family Violence Intervention Orders outside Victoria

The Bill amends the Family Violence Protection Act to provide that courts may make interim and final FVIOs regardless of whether some or all of the alleged family violence occurred outside Victoria and the affected family member was outside Victoria. Currently, the Act provides that orders can be made where either family violence occurred outside Victoria or the affected family member was outside Victoria, but not both.

This amendment will enable a broader range of victim-survivors to quickly and effectively seek protection in Victoria, in particular, people living in border towns where the closest court may be in Victoria, or victim-survivors who have come to Victoria fleeing violence that has occurred in other jurisdictions.

Extending legal representation for parties in contested FVIO proceedings

The Bill expands the circumstances where legal representation must be offered or provided to self-represented parties during cross-examination in contested FVIO proceedings.

To avoid the respondent personally questioning the affected family member, the Family Violence Protection Act provides for Victoria Legal Aid to conduct cross-examination of the affected family member on behalf of self-represented respondents in contested hearings. The Act does not currently provide for representation for a self-represented affected family member to cross-examine the respondent. While the majority of FVIOs are taken out by Victoria Police on behalf of victim-survivors, if an affected family member has made the application themselves without legal representation, they face the prospect of personally cross-examining the respondent despite other protections designed to reduce contact between affected family member respondents, and to protect victims and vulnerable individuals. To address this gap, the Bill requires the court to order legal representation for self-represented affected family members in these circumstances.

The Bill also provides for representation of a self-represented respondent for the purpose of cross-examination by an affected family member’s legal representative. This promotes procedural fairness, enhances the efficiency of contested hearings and provides a protective measure against perpetuating misidentification of the predominant aggressor.

PERSONAL SAFETY, STALKING AND SEXUAL OFFENCE REFORMS

Allowing own motion interim Personal Safety Intervention Orders

The Bill implements a recommendation from the VLRC’s 2022 Stalking: Final Report to allow interim PSIOs to be made on the court’s own motion (recommendation 26). This reform is modelled on similar provisions in the Family Violence Protection Act and will allow courts on their own motion to make interim PSIOs against adult respondents in high-risk criminal or bail proceedings relating to alleged stalking, sexual offences and violent offences where appropriate.

This will ensure interim PSIOs can be made in appropriate cases without requiring a person to make a separate application, increasing the courts’ ability to protect victims of stalking and interpersonal violence.

Improving the stalking offence

Stalking is a long-standing criminal offence in Victoria and applies in both family violence and non-family violence contexts. The VLRC’s Stalking report was informed by broad consultation with community groups and victims. The report found that the core elements of the stalking offence were appropriate and did not need to fundamentally change, and that the offence was sufficiently broad to cover a range of conduct. However, it recommended amending the offence to improve its clarity. In response to the report and following further consultation with justice system stakeholders, the Bill improves the stalking offence so it is clearer and easier to understand and apply in practice.

The current offence in section 21A of the Crimes Act 1958 can be established where an accused engages in a ‘course of conduct’, which can encompass a range of behaviours such as following or contacting a person, where the accused intends to cause physical or mental harm or arouse apprehension or fear in the victim for the safety of themselves or another person. It contains three possible fault elements – intention, recklessness or objective fault (when the offender ought to have understood that their conduct would be likely to cause such harm, etc and it actually did have that result). The Bill re-structures the stalking offence to more clearly set out the elements of the offence, including these three different fault elements.

The Bill also improves the clarity of the offence. It updates the language used in the recklessness element, so it is consistent with how recklessness is interpreted and applied in other Victorian offences, as recommended by the VLRC in its 2024 Recklessness report. It acquits recommendation 33(a) of the Stalking report by reflecting established case law principles in the meaning of ‘course of conduct’. A ‘course of conduct’ will be defined to mean conduct that shows a continuity of purpose in relation to the victim which the accused engages in on more than one occasion (such as making persistent phone calls or attending the victim’s workplace on multiple occasions) or that is protracted, such as tracking the victim’s movements for a prolonged period. The Bill also provides that harming or threatening to harm animals may constitute stalking. For example, harming an animal in front of the victim or bringing it to the victim’s attention in a way that could cause mental harm to the victim or arouse apprehension or fear for their safety.

Together, these changes will improve the stalking offence so that it is clearer and better understood by those who apply it in practice. This will complement other non-legislative recommendations made by the VLRC which focus on improved training for agencies, public education and pathways for support to better respond to stalking.

Improvements to criminal proceedings and processes

Expanding witness protections to stalking cases

The Bill extends certain protections in the Criminal Procedure Act 2009 that currently apply in sexual offence and family violence cases to stalking cases. For example, complainants and witnesses in stalking cases who are children or persons with a cognitive impairment will be able to use certain pre-recorded evidence procedures, minimising the need for them to give evidence in front of the jury. This category of witnesses and complainants will also benefit from ground rules hearings being made available in stalking cases, to allow courts to consider how to meet their communication, support or other needs in the proceeding.

Courts will also be provided with the flexibility to order alternative arrangements for any witness in a stalking case, such as giving evidence remotely or permitting witnesses to have a support person beside them while giving evidence.

These reforms will reduce the number of times that complainants need to repeat their story and minimise stress and trauma to complainants and other witnesses in stalking cases.

Clarifying alternative verdicts in certain sexual offence trials

The Bill clarifies the law on alternative verdicts in certain sexual offence trials. Recent Court of Appeal decisions mean that the general provision in the Criminal Procedure Act allowing for alternative verdicts does not allow certain alternatives to penetrative sexual offending.

The Bill makes clear that in trials for certain offences involving sexual penetration (e.g. rape) it will be open to a jury to find an accused guilty of an alternative offence involving sexual touching (e.g. sexual assault) without requiring the alternative offence to be listed on the indictment.

Requiring multiple alternative charges to be included on indictments creates unnecessary complexity in prosecuting cases involving vulnerable complainants and causes confusion for jurors. By clearly providing that offences involving sexual touching are alternatives to penetrative sexual offences, the Bill will streamline and simplify this aspect of sexual offence trials.

New statutory functions for intermediaries

The Bill provides new statutory functions for intermediaries to better reflect their current role in criminal proceedings. Intermediaries are impartial officers of the court who have specific legislative functions to help witnesses who are children or persons with a cognitive impairment to give their most reliable evidence. The Bill clarifies that, in addition to their existing functions, intermediaries can make recommendations to the court about effective communication with a witness and can otherwise assist the court or a legal practitioner to communicate with the witness. The Bill also provides that the court can have regard to intermediary recommendations when deciding whether to give a ground rules hearing direction. These amendments will not change or broaden the scope of existing intermediary practices, rather they reflect common intermediary practices that are discussed in the Multi-Jurisdictional Court Guide for the Intermediary Program: Intermediaries and Ground Rules Hearing.

Making jury directions on consent available in intimate-image and non-fatal strangulation offence proceedings

The Bill amends the Jury Directions Act 2015, including in relation to non-fatal strangulation, intimate image sexual offences and historic sexual offences.

Intimate image sexual offences were introduced into the Crimes Act in 2022 to better reflect their serious nature. As a particularly dangerous form of family violence, non-fatal strangulation was introduced as a stand-alone offence in 2023. A defence of consent based on Victoria’s affirmative consent model can be raised in relation to these offences.

Judges give directions on consent to the jury in certain sexual offence proceedings. The Bill will ensure that, where relevant, these directions can be given in intimate image sexual offence and non-fatal strangulation proceedings to address misconceptions that can arise in these trials and make it easier for juries to apply the law regarding consent.

The Bill also re-enacts repealed jury directions for historic sexual offences. We know that a delay in reporting experiences of sexual offending is common, particularly for child sexual abuse and these directions are still used in complex prosecutions for historic sexual offences. The Bill consolidates these directions in the Jury Directions Act for ease of reference and to give them greater visibility.

Expanding the classes of people who can receive notice of an application for confidential communications and protected health information

The Bill expands the classes of persons who may receive written notice of an application for leave to produce protected evidence in criminal proceedings relating to sexual offences, to ensure the rights of protected persons are properly understood.

Under the Evidence (Miscellaneous Provisions) Act 1958, protected evidence includes confidential communications made to medical practitioners or counsellors by, and protected health information about, a person against whom a sexual offence has or is alleged to have been committed (the protected person).

If an application is made for leave to compel production or adduce protected evidence in criminal proceedings, certain notice requirements must be complied with. This includes providing written notice to the protected person that they may appear in the proceeding, make submissions and obtain legal advice on the application. However, providing notice to a protected person who does not have the capacity to understand has little value and can cause undue distress.

Where the protected person is a child or person with a cognitive impairment, the reforms will allow the notice to be provided to a parent, guardian or other suitable person. This ensures the notice is received by someone able to understand it and its implications for the protected person.

I commend the Bill to the house.

 Tim McCURDY (Ovens Valley) (10:47): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned until Monday 17 November.