Thursday, 30 November 2023

Bills

Crimes Amendment (Non-fatal Strangulation) Bill 2023

Second reading

Debate resumed on motion of Lizzie Blandthorn:

That the bill be now read a second time.

Samantha RATNAM (Northern Metropolitan) (10:35): I rise to speak on the Crimes Amendment (Non-fatal Strangulation) Bill 2023. The bill introduces non-fatal strangulation laws as specific criminal offences in recognition of the seriousness of these acts. This amendment to Victoria’s Crimes Act ‍1958 will finally bring our state’s laws into alignment with the rest of the country. The Greens are pleased to be supporting this important reform. Family violence advocacy groups have been calling for this reform, and it is in alignment with recommendations from the Royal Commission into Family Violence. The royal commission noted that strangulation in intimate partnerships is often a precursor to serious abuse and death but is not treated differently or more seriously by police and courts than other less serious offences such as assault. It is imperative that we act to strengthen protections for victim-survivors of gender-based violence and ensure the consequences for perpetrators appropriately reflect the seriousness of their actions.

We acknowledge that this is a complex area of law. Domestically and internationally non-fatal strangulation laws vary in the way they are crafted. Some provide definitions of ‘strangulation’ while others rely on common-law interpretations. Some restrict the application of the law to a domestic relationship context while others apply the law more broadly. The element of mens rea also varies, with some laws requiring an intention to harm and others not. I note that concerns have been raised by sexual violence services that the proposed laws would exclude sexual strangulation outside the context of family violence. I also note concerns that the new offences could inadvertently capture people in the BDSM community. Given these complexities, it will be important to monitor the application of these laws to ensure they are capturing all undesired behaviour and not criminalising people unduly.

Reforms such as this bill are crucial as we know how dire the reality of family violence is across Australia and that there is impetus for change. Every nine days a woman is killed by her current or former partner. Despite ongoing efforts, reports of family violence are on the rise. In part this is due to better reporting as more victim-survivors feel empowered to seek assistance. However, it also means that we must collectively do a lot more to stop all forms of gender-based violence. Recent research on family violence services demand by the sector peak body Safe and Equal shows that services constantly operate above capacity and wait times are lengthy for victim-survivors seeking case management and support. The result of under-resourcing is increasing risk for people seeking help and greater risk of burnout for staff. We must appropriately fund services which are on the front lines of this crisis.

It is apt that we are talking about this issue today, as we are currently in the midst of the United Nations campaign 16 Days of Activism against Gender-Based Violence. Over these 16 days people from around the world are taking action to show their support for an end to violence against women and girls. Last Friday I joined the 15th annual Walk Against Family Violence as thousands of Victorians marched and called for change. The sheer number and scale of actions planned worldwide for these 16 ‍days demonstrates the urgency with which we must act. This year as part of this campaign the UN is calling on governments worldwide to share how they are investing in gender-based violence prevention. Primary prevention work is complicated, and it takes place over the long term. It involves collaborative work across many sectors, including education, health and community services, to change the gendered social norms and structures that drive inequality. I commend all the teachers, social workers and healthcare professionals who are doing this incredibly hard and necessary work.

As we fight for the right of women to be safe it is critical to know that intersecting forms of disadvantage can exacerbate people’s experiences of family violence. Women with disabilities, First Nations women, LGBTQIA+ people and refugee and migrant women experience family violence at far higher rates than the rest of the population. I must stress that this is not due to any deficiencies within these communities but rather it is a result of structural inequalities which create stigma, discrimination and marginalisation. The lack of availability of appropriate services further marginalises these groups.

I want to commend the important work of organisations like the Multicultural Women’s Alliance Against Family Violence, which are passionately advocating for improved access to culturally responsive family violence services in Victoria. This is a grassroots organisation run by women which has brought to the fore the lack of funding in this space and how this is shutting down important community organisations. Culturally appropriate support services not only provide culturally safe services, they also play an important role in providing expert advice to governments about how best to support multicultural communities. Without funding for organisations such as these, Victoria simply cannot support its growing multicultural population.

It was an honour to attend the AGM of the Multicultural Women’s Alliance against Family Violence in the last week. As mentioned, these are a powerhouse of women from culturally diverse communities advocating for more resources for grassroots culturally diverse services providing support for family violence, and they are advocating for culturally responsive family violence refuges. There are not enough refuge beds in Victoria for women fleeing violence. We have been hearing horrific stories of women having to stay in refuges for months on end, for much longer than is recommended, because there are just not enough homes for these women to move into to be safe from their violent perpetrator partners.

If you are wondering why the Greens will not stop talking about solving the housing crisis and building more public housing, it is because of situations like this, which are getting worse. It is unacceptable that women cannot find adequate housing that will keep them safe and protect their lives. We must solve the housing crisis if we are to address the family violence crisis also. In order to truly address gender-based violence in our homes and public spaces we must not condone violence against women, we must change societal attitudes towards women and we must dismantle the systems of inequality which oppress vulnerable members of our community. This bill sends a strong message that family violence is absolutely unacceptable, but the work to end violence against women is far from over. The government must increase funding for services on the front line, especially those that are working to support marginalised communities.

Rachel PAYNE (South-Eastern Metropolitan) (10:41): I rise to speak to the Crimes Amendment (Non-fatal Strangulation) Bill 2023 on behalf of Legalise Cannabis Victoria. This bill introduces two new offences of non-fatal strangulation into the Crimes Act 1958. The first offence, of intentional non-fatal strangulation against a family member, carries a maximum penalty of five years imprisonment. The second offence, where strangulation of a family member causes injury and where no consent defence is available, carries a maximum penalty of 10 years imprisonment. The bill will also ensure non-fatal strangulation is recognised as an act of family violence for the purposes of family intervention orders, in protections for witnesses giving evidence and in the consideration of bail applications. These changes bring Victoria into line with many other Australian states, and we hope they will have the effect of improving knowledge among frontline workers of the risks of strangulation as an indicator of escalating patterns of violence and coercive control.

Those who are subject to non-fatal strangulation by a current or former intimate partner are seven times more likely to be seriously injured or murdered by that same partner. This is the dangerous fact that underpins this reform. Family violence is an epidemic, and something that we as members of Parliament should be up in arms about. Sixty-four women have lost their lives this year, having been violently murdered by someone they know – men they have been in intimate relationships with, have had children with, once loved. It is absolutely tragic. Family violence impacts so many directly and indirectly. I know within my own family my mother and her sisters are completely traumatised by growing up in a violent household, seeing their mother beaten, fearing their father and copping beatings themselves. The abuse was insidious, ongoing and harmful both physically and emotionally.

This bill takes a step in recognising the complexity of family violence and how perpetrators operate. However, it would be remiss of me not to review this legislation for all unintended consequences, and there are some. At law ‘causes injury’ is a relatively low threshold. At its lowest it could mean temporary pain. Paired with a broad definition of ‘strangulation’ in the bill – applying pressure to one’s neck – this could unintentionally capture consenting family members who are not at all engaged in family violence. It could be two siblings who are involved in the ever-increasingly popular sport of jujitsu practising their chokeholds, which is a central part of that popular sport. Choking and strangulation techniques are quite common in this sport, as in many other martial arts.

Or it could be a couple who are engaged in completely consensual BDSM in the bedroom, and we are not necessarily talking about a small minority of the population here. For those unfamiliar, BDSM stands for bondage, discipline or domination, sadism and masochism. It is sexual activity involving such practices as the use of physical restraints, the granting and relinquishing of control and the infliction of pain. Most generically think of Fifty Shades of Grey, which was the fastest selling paperback of all time. At its peak two copies of that book were being sold every second. Worldwide by 2015 more than 150 million copies had been sold. This phenomenon brought BDSM into the mainstream, and you cannot tell me this has not led to widespread experimentation in many Victorian homes, at least. There is minimal data on the prevalence of the BDSM community in Australia, and what data does exist is becoming increasingly outdated as our society moves towards a more tolerant and sex-positive place. But 2003 figures suggested that over half a million Australians had engaged in BDSM in the last 12 months. The reality is that in the course of many sexual relationships, parties may desire the intentional infliction of pain and consensual sexual choking and not necessarily in small numbers. This means that in its current form this bill could unintentionally criminalise thousands of members of the Victorian community for consensual sexual activity that is not family violence.

I would like to thank the government for taking the time to meet with us on this aspect of the bill and for listening to our concerns on the potential for this bill to capture activities outside of its intended scope. We know the BDSM community is one for all ages. It is a community that engages in informed conversations and understands consent, often in a much more nuanced and understanding way than the wider community. As kink educator Roger Butler puts it, what is often neglected in mainstream media depictions of BDSM is:

… the incredible negotiation and consent-giving process that goes into the scene before it even starts. How to look after each other, how to keep each other safe. All that communication doesn’t make for good television, but it does make for great sex.

There is also the potential for this bill to unintentionally criminalise a much wider group of consenting adults. To that point – and thank you to my zoomer staffers for pointing this out to me – currently at the top of the ARIA singles chart is Jack Harlow’s Lovin On Me. In this song Jack says:

I’m vanilla, baby (I don’t like no whips and chains and you can’t tie me down)

I’ll choke you, but I ain’t no killer, baby …

For those unfamiliar with the term ‘vanilla’, in a sexual context it describes someone with a conventional approach to how they have sex. I am quite enjoying how red-faced everybody is getting in this room. Now, I do not know about the research methodology Jack Harlow used when writing this song, but the message is clear. Even someone who has self-proclaimed vanilla sex says he includes consensual choking in his sexual repertoire. As I said, that is the most popular song, thanks to my staff informing me of this, on the ARIA charts right now, which is as mainstream as you can get.

I make this point to stress that the unintended consequences of making these laws could be broader than this Parliament realises, and perhaps there is a wider conversation to be had here about the need for comprehensive sex education to enable sexual empowerment and to reduce harm. But my point is that the potential unintended consequences of this bill are far from niche. This legislation is so important, but it is important that we fulfil its intention without the government stepping into the bedrooms of consenting adults.

We, like the government, are supportive of amendments to insert a review clause for no later than two years after this bill commences. I would suggest that the review considers a consent defence for both new offences, a more precise definition of ‘injury’ or possibly a higher threshold for ‘serious injury’. A review of this kind will help ensure that the bill is operating as intended, and we do take comfort in that. In the meantime I look forward to some assurances from the Attorney-General in the committee of the whole as to the intention of this bill and, importantly, what it is not intended to do, and we urge the government to bolster this reform with well-funded education.

To return to the central purpose of this bill, these are very important reforms, and we unequivocally support the policy intent of the bill to address dangerous family violence and coercive control.

David LIMBRICK (South-Eastern Metropolitan) (10:50): The Libertarian Party will support this legislation to address family violence, because our philosophy is fundamentally a philosophy about respect for others and we oppose coercion of all kinds. What kind of person puts their hands around the neck of a partner or family member with the intent to cause harm? I could use all kinds of names, but the evidence tells us they are dangerous. There is a strong correlation between choking behaviour and escalating family violence. These people need to remove themselves from intimate relationships and get help immediately, or else they should be locked up. Unfortunately the worst family violence is perpetrated by men against women. Some of these men may have been socialised in violent households, but that is no excuse. We know this because, to their credit, many men from rough upbringings leave their violent past behind them and become great partners and fathers.

Forgive me if I inject a little scepticism into this debate. I am old enough to remember people here who voted against an inquiry into whether women should be allowed to carry pepper spray. Some here not only believe women should not be allowed to defend themselves, they believe we should not even talk about it. I remember in 2019 attending a 420 cannabis legalisation rally in Flagstaff Gardens where a 15-year-old girl was handcuffed and appeared to be hit in the head by a police officer. This footage can still be seen on the Age newspaper website. I spent nearly a year asking questions about this in Parliament and getting no good answers. Somebody finally slipped a note onto the desk of my empty apartment office declaring that the police had investigated the incident and found themselves innocent.

Others here were silent when the pandemic came and the standard they walked past became the standard they accepted. They accepted it when police choked a woman in the street and arrested a pregnant woman in her house. They said nothing when a 70-year-old lady was pepper sprayed at a protest, and they immediately believed false media reports that she was really a man because she was wearing a wig. These are just a handful of incidents caught on camera. For every one of these we saw on film, there must have been many, many others. For a very long time Parliament enabled this violence. Despite my scepticism, let us hope that this bill works as intended to prevent family violence. I commend this bill to the house.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (10:53): It is a pleasure to sum up on a really important bill, and I thank members for their really thoughtful contributions. Nearly everyone has referred to this legislation as complex, and that is certainly an understatement for someone in my office who has been involved in the development of this policy for some time. To be here today is an achievement.

I want to acknowledge the tireless and powerful advocacy for the creation of a standalone offence of non-fatal strangulation by the family of the late Joy Maree Rowley. Joy was tragically murdered by strangulation and suffocation in 2011 after being subjected to non-fatal strangulation by her former partner prior to her tragic death. Joy’s children Aaron, Nadine and Renee and their father Les have campaigned tirelessly for the creation of an offence which better responds to and better identifies the risks of non-fatal strangulation. I deeply thank them for their patience, for their time, for their contribution. I am just so grateful for their advice on what this law needs to practically achieve. Thank you to Les, Annalisa, Nadine, Renee and Aaron. I know that you guys have joined us today. I extend my thanks to everyone who has participated in the process of the development of these laws. I acknowledge that it has taken some time, but I am proud to finally be delivering on the reforms and progressing our strong women’s safety and family violence agenda through this bill today.

Shockingly we know that weekly, often daily, we wake to news of yet another woman being killed, very often at the hands of a partner or former partner. It is happening across Australia, and sadly, it is happening here in Victoria. Family violence is such a pervasive issue in our community. Coercive control underpins this behaviour, and it can lead to violent assaults and, as we know, murder. Reporting yesterday indicated that the number of Australian women who have died by violence in Australia in just 2023 has reached 53. This constant reminder of the awful reality should motivate all of us in this place to push for change and keep looking for solutions. I am sure this is what motivated the thousands of people that participated in the Walk Against Family Violence in Melbourne last Friday.

The opportunity to progress women’s safety reforms is one of the key reasons many of us are in this place and is one of the reasons that motivates us. The bill before the Parliament today is part of our government’s women’s safety agenda. As people have outlined, it will introduce two new offences of intentional non-fatal strangulation of a family member into the Crimes Act 1958. With this bill we want to acknowledge that non-fatal strangulation is particularly prevalent and concerning in the context of family violence. Non-fatal strangulation is highly dangerous and potentially life threatening. When it is committed in the context of family violence it is very often an indicator of significant future risk of serious harm, including homicide. Non-fatal strangulation, we know, is rarely an isolated event. It is a means of terror and control. It can intimidate and will also be an indication of an escalation of violence and coercive and controlling behaviours in family violence contexts. Research indicates that women who survive a non-fatal strangulation incident are seven times more likely to be seriously injured or murdered by that perpetrator.

Of course one new law will not end family violence or violence against women – laws do not necessarily change behaviour – but it is an opportunity to look at consequences and have a really important conversation, which we hope leads to better behaviour. Family violence is a deep-seated societal problem embedded in often gendered cultural norms, but it is incumbent on us as a Parliament to keep trying and to use the levers we have to highlight the issues and reform the system so that we can better identify and manage the risks and indeed use our voices for education. The absence of a standalone offence in Victoria has represented a barrier to identifying, reporting and prosecuting this type of offending. This has made it harder to monitor its impact and also assess its risk.

In terms of the summary of the bill, many people have spoken in detail, so I will just summarise briefly. The bill will introduce two new offences, reflecting their relative seriousness: a five-year offence, which covers non-fatal strangulation committed against a family member, with a maximum penalty of five years imprisonment, and this offence does not require proof of injury; and a 10-year offence of non-fatal strangulation committed against a family member which intentionally causes injury, which has a maximum penalty of 10 years imprisonment. The offences broadly define non-fatal strangulation as ‘choking, strangling or suffocating, including applying pressure to the front or sides of the neck, obstructing or interfering with a person’s respiratory system or impeding respiration’. These offences will only apply to conduct between family members.

I will just take the opportunity to reflect on how we have landed here. This is the core rationale for the reforms. This is the behaviour and the context that we know is what we want to respond to and what the fundamental purpose of this legislation is. ‘Family member’ allows the penalties to be tailored to specifically respond to that heightened risk profile that I spoke of earlier and is a way of better holding family violence offenders to account. It also means the offences will enhance protections for victim-survivors by providing a clear indicator of risk to both the police and the family violence sector. The bill will use the same broad and flexible definition of ‘family member’ as contained in section ‍8 of the Family Violence Protection Act 2008. Whether the two people meet the ‘family member’ definition will be determined by the individual facts and circumstances of each case, but the definition can capture wide concepts of family and reflects community views about what ‘family member’ can mean.

During the consultation processes, stakeholders emphasised that the broad nature of the definition of ‘chokes, strangles or suffocates’ meant that offences with universal application could inadvertently capture lawful conduct that was not intended to be covered by the offences. Some of the examples that we spent many, many hours talking about in relation to how these laws would work were things such as massage, sports and genuine consensual sexual activity. We are not intending to criminalise lawful consensual behaviour that does not cause harm to people. That is not the intention here, and it is really hard to write laws that do not capture that, which is just one of the reasons that it took a very long time to land this in the way that we have.

We also did not want to disproportionally impact vulnerable community groups within Victoria. One of the examples that stakeholders were concerned about was capturing the touching of a police officer’s neck while resisting arrest, so somebody that perhaps was having a psychotic episode or somebody that had a cognitive impairment and the like – people were very concerned that that type of behaviour could be captured. Requiring the non-fatal strangulation to be of a family member significantly reduces or mitigates against those risks that people identified could be captured by the laws if we cast them too wide.

It has been a delicate balancing act. We had to look at achieving the policy goals with limiting the risk of inadvertently applying offences very broadly to conduct which is common, consensual and obviously not considered problematic. We decided to broadly define the conduct because we know that narrow interpretations have been a challenge in other jurisdictions. Jurisdictions including Queensland, South Australia and the ACT have standalone offences which have seen courts narrowly interpret the terms ‘choke’, ‘strangle’ or ‘suffocate’ because the terms were not clearly defined. These narrow interpretations have imposed inappropriately high evidentiary burdens on the prosecution, which could further traumatise victim-survivors. The broad definition in our bill aims to avoid that issue.

I am going to struggle with my time. I will keep going, but I might ask for more time at the end.

In relation to the 10-year offence, we required injury to be intentionally caused because we wanted to provide an important safeguard against inappropriately criminalising legitimate behaviours. When you combine the deliberately broad approach and the lack of consent defence, you need to be careful about the breadth of some of the other elements. For example, if the offence captured reckless conduct, it would be highly likely to capture a range of legitimate conduct that falls outside the intended scope, such as massage that a person knew could but did not intend to cause bruising.

We do want to target the most egregious forms of offending. That also justifies the significant maximum penalty in this case. Further, requiring intent is consistent with existing offences such as assault that carry a high maximum penalty. Adding ‘reckless’ as a possible mental element would require a third offence, and this would attract a maximum penalty of five years imprisonment, consistent with reckless assault. But we already have a better targeted five-year offence in this instance. Also, most non-fatal strangulation offences in other jurisdictions require that the injury be intentionally caused, which was an important consideration in developing our legislation. As I said, we do not want to create unnecessary confusion and complexity; however, we know that we will be closely monitoring this legislation for any gaps, and we are watching how they operate.

I briefly want to go through some of the defences and exemptions, because concerns have been expressed about potential unintended consequences of the new offences. We have tried to limit the impact of the offences on ordinary consenting behaviour, as I have outlined. While some ordinary conduct may technically fall within the elements of the offences, the impact will be limited by lawful excuses in defences and exemptions.

Existing statutory and common-law defences will apply to these offences, except for consent in the 10-year offence. Statutory defences of self-defence, duress and sudden or extraordinary emergency will apply for both offences. There has been a lot of discussion of examples of this in the other place, such as a family member having a medical episode and it being necessary to check their pulse, for example, or even parents having to break up a fight between their teenage children. It can be problematic to guess how a court will apply in all of these hypothetical situations, because it will always depend on the circumstances, but in those scenarios I am comforted by the existence of the sudden or extraordinary emergency defence, which may be relevant if a person reasonably believes that that exists and the conduct is the only way to respond. This will likely apply to medical emergencies, which we have thought is probably the most likely example.

Consent is a defence to the five-year offence. This partly mitigates the risk of unintended application to legitimate commonplace activities which could be captured by the broadly defined conduct of ‘chokes, strangles or suffocates’. The standard of defence will depend on the context. In most contexts ‍– that is, non-sexual contexts – the common-law defence of consent will apply. If the conduct occurs in a sexual context, a tailored statutory consent defence will apply. This adopts the affirmative consent model for sexual offending, which our government reformed in 2022. This different standard is appropriate given it has long been recognised that the common-law defence of consent is not appropriate in sexual contexts. As you can see, it is very complex legislation, so it is just important to get a couple of these things on the record.

Consent is not available as a defence for the 10-year offence. This reflects the seriousness of the risks ‍– that non-fatal strangulation that intentionally causes injury of any kind is unsafe and cannot be consented to. However, the bill is not intended to criminalise legitimate medical procedures or body modification. The bill includes an exception so that a person does not commit an offence where the relevant conduct occurs during a procedure or a medical procedure such as piercing or tattooing, for example. To ensure that this does not impact legitimate medical and other conduct, the offence contains an exception if these are carried out in good faith.

I acknowledge that there have been a range of views that have been brought to the government in the development of this bill. Some stakeholders hold concerns that the offences could have unintended application because ‘conduct’ is broadly defined and the 10-year offence could apply to ordinary consenting conduct as it requires injury as opposed to serious injury and there is no consent defence, which I know Ms Payne has been speaking about in her contribution as well.

The ACTING PRESIDENT (Michael Galea): Apologies, Minister. With leave of the house I will grant the minister extra time.

Leave granted.

Jaclyn SYMES: Thank you, I appreciate that. For example, I know that there are concerns that offences might capture siblings, participating in martial arts or those who practise BDSM. It is unlikely that such conduct would be reported to police in general – that would be our expectation – but I do acknowledge that it is possible. But what we have wanted to do is create laws that as much as possible do not criminalise behaviour that we would all accept is not criminal.

On the other hand, there are some stakeholders that are concerned that the offences are too complicated and difficult to prove, that causing injury recklessly should be added and that consent should be available in either offence or should not be restricted to family members. These are all legitimate concerns. They have all been ventilated over a long period of time. It has been difficult to land this legislation, but I can assure you that all of those considerations have been thoroughly examined and I have taken advice from a range of stakeholders and the department in relation to that. That is why it did take a long time to balance those divergent views.

We think we have got the right balance, but as I have said time and time again, I am never one to say I am right and others are wrong. We just think this is the best approach at this time. Reforming the justice system is a job that is never completed, and we are committed to reviewing the offences as they come into operation. But given the complexity, it is not my intention to oppose an amendment that will be put up in relation to a formal statutory review. Again, I think similar to some other pieces of legislation, it would not be my intention to wait for a formal statutory review in and of itself. We would continue to consult with police and the sector and victims in relation to how these laws work.

They have the potential to save lives, these laws, and I think we should really focus on the fact that that is their intention. They are complex; there is some clumsiness in it. It is really difficult to make these laws perfect, but fundamentally when you sit down with family members such as those of Joy Rowley, I keep coming back to that as the reason the laws look as they do. It addresses their issue. There are a range of other consequences for getting here, but fundamentally I wanted to say to that family that we are doing this because of what happened to them. We know that we want to make sure that, as best as possible, this does not happen to other families.

It is also really important to have a conversation about this behaviour and how risky it is and how damaging it can be. It is the reddest of red flags; I think I have described it as such before. If you are a victim of non-fatal strangulation, if you survive that conduct, you are in major danger. I would encourage anyone that knows of anyone they are talking to that has experienced this to reach out and seek help. As I said, it is conduct that can lead to dire fatal consequences. I think these are important laws, but this is also a very important conversation and education piece for the community.

Motion agreed to.

Read second time.

Committed.

Committee

The DEPUTY PRESIDENT: We are going to start with clause 1, but before I do that I might ask Mr Bourman to circulate his amendments.

Jeff BOURMAN: Could I get my amendments circulated, thank you.

Clause 1 (11:15)

Jeff BOURMAN: I move:

1. Clause 1, line 6, omit “2”.

I am going to be fairly quick with these. The amendments, to get down to the bottom line, are to include non-family members. There is a reason I am moving these. I was contacted by Sexual Assault Services Victoria (SASVic), and without putting words into their mouth, they were perplexed as to why this current bill does not cover non-family members. We had a good chat, and I agreed I would do the amendments. Now, I must admit that I do not think I have done the amendments justice. It took a long time to get them, through no fault of anyone. I did not get a chance to socialise them very well. I did attempt to have a chat with the Attorney-General about it and I got a less than positive response to that.

But there is a reason I am doing this, and it is not just because of Sexual Assault Services Victoria. Someone very close to me has had an experience that is not captured by this bill. It does not count for instances such as stalkers and people like that – people that are not family members but are known to people – and that is what the upshot of all this was. I have got a thick hide in this place, but I was pretty unhappy to be brushed off as I was. I am not going to have a division over these; I know they are not going to get through. But I think it needs to be raised that there are people outside the family context that are deserving of the same protection that this bill gives. I have moved an amendment, and that is pretty well all I have to say on this.

Jaclyn SYMES: Mr Bourman, I am not surprised by your amendments, because it is the position I started at three years ago. I would have liked to have been able to craft laws that cover conduct that is non-fatal strangulation in every instance. I am sorry that you felt brushed off. I had my 12-year-old and my 11-year-old right next to me, so I did not really want to get into an involved conversation about non-fatal strangulation in a sexual context in front of my children. The fact is that this bill has been in the Parliament for three weeks, and the fact that you chose to have that conversation in a hallway two days before the debate – perhaps there might have been a more appropriate way to engage with the government in relation to your amendments.

I see that you have described SASVic, in terms of coming to you, that they were perplexed that it did not cover non-family violence situations. I am surprised by that because I am not sure how they could be perplexed when they have been involved for many, many years in relation to the crafting of this legislation. They have been a stakeholder that has been engaged. I accept that not everybody agrees with where we have landed, but as I have sought to articulate, we have attempted to balance everyone’s views. Sometimes when a bill does not reflect your view, people think that they might argue that we have got it wrong. I would put on record that we have thoroughly consulted on this bill. It is the reason that it has taken so long to get here.

We had a proposal that looked at covering non-family members and all of the consequences. All the genuine non-criminal behaviour would all of a sudden have become criminalised. There just was not a way to land it. I know this law is not perfect, but expanding it to this situation that you are proposing is something that on balance is not the right way to go. We went over it again and again, so many meetings. Can we work this out? We just could not without it being bad law that would potentially pick up the hairdresser, the massager, the sports conduct – a range of things. That is not to say that some of the behaviours you have talked about in terms of non-fatal strangulation type behaviour in a context where it is not inflicted on a family member do not count for the purposes of the laws – there are other laws that can apply. There is intentionally causing injury. There is assault. There are many, many laws that can apply, but what we are trying to capture here is: what we know is that non-fatal strangulation when it has been perpetrated against someone in a family member situation has led to people being murdered. It is a precursor. It is a pattern of behaviour that has resulted in – we know it for a fact because we have spoken to families that it has happened to – the death of a woman. That is what we are trying to pick up here.

I know that there are instances that we would like to pick up outside that, but fundamentally that is the behaviour that we are most concerned about, that is the behaviour that we know of from the stakeholders and from families that have experienced this. The stats speak for themselves. If you are a victim or if you are a survivor of non-fatal strangulation, you are seven times more likely to end up very injured or dead. That is in the family violence scenario, so that is why these laws are targeted in that way and that is why we wanted to target that without capturing a broad range of other behaviours. In reality, who is going to make a legal complaint about the masseuse accidentally pressing too hard on the neck? I get that. But it still would have been possible. We have tried to avoid criminalising regular behaviour as much is possible, even though it is unlikely it would happen. It has been a very circular conversation. I do want to thank those in the box. We have people that have been working on this for so long trying to land this.

As I said, Mr Bourman, it nearly did not proceed because of how difficult it was to get good laws. I had Joy’s family come and see me, and when I was explaining to them all of the unintended consequences of a broad application of a non-fatal strangulation offence it dawned on me, ‘Let’s not try and fix that broader problem of creating a perfect offence that covers all of the potential behaviours that we are attempting to. Let’s just bring it back to why we’re doing this.’ And it is because of what happened to this woman and others. That is why it looks like it does, because I did not want to say to that family, ‘I can’t do it because it’s too hard and there are too many unintended consequences.’ I wanted to be true to the commitment we gave, which was in response to the murder of Joy Rowley, and that is why it looks the way it does.

I know lots of people have got different views on this, and I can assure you I have heard them all. I do not want to dismiss your concerns or your intentions, but I want you to understand that I get it and it would have been great if we could do that but we could not find a way to do it. What we are doing today is as best as this law can be. And coming back to the fundamental reasons of why we are doing it, we want to save women’s lives. It is the women that are subjected to family violence that are the ones that are being non-fatally strangled, and we want people to know that that is the most dangerous situation you can be in. We want the police to be able to act, we want people to know that we are taking it seriously and we want it to stop. It is not perfect, but that is where we are at today.

Evan MULHOLLAND: Just firstly, I want to pay tribute on behalf of the opposition to Renee, Aaron, Nadine and Les. I pay tribute to you particularly on behalf of my colleague Michael O’Brien as well and on behalf of the opposition.

Attorney, how does the government intend to build awareness of this law as intended by the coroner?

Jaclyn SYMES: I thank Mr Mulholland for his contribution and his question. I too extend my thanks to the opposition in the development of this bill. The Shadow Attorney-General has had a lot of conversations with my office and has been brought up to speed on the ins and outs of where we landed and has been really understanding in relation to this. He is a pretty detailed lawyer. So for him to land where he has in accepting where we are – I am pretty happy that he kind of accepts the challenges that we had, because as I said, it is not perfect, but to have opposition support from someone who understands these things better than a lot of people has been important.

Education and conversations about these matters – I think it is similar to coercive control. These are behaviours that have not necessarily always been talked about in the open as much as they need to be. We will have no current campaign, but commencement of this is not until October 2024, which will allow us to work on training with police, and I know that a lot of media outlets are particularly interested in this law in responding to family violence concerns, coercive control and the like. As I said in my summing-up, laws are effective and laws are appropriate. It is a responsibility as the Attorney to bring these in, but you hope that these laws do not actually need to be used, because in crafting them, in introducing them in the Parliament, talking about them and the media reporting them, you get more and more awareness both from perpetrators, potentially, but also victims knowing that this is something that is very concerning behaviour and that they should be not only concerned but perhaps seeking assistance in relation to their concerns about this kind of underlying behaviour. So it is good to have the conversation, and we think that that will bring about better community education and better behaviour.

Evan MULHOLLAND: Thanks, Attorney, for your comments about my colleague Mr O’Brien and the opposition’s approach to this. I think many people on the outside of this place often only see all sides of politics going against each other, but I think it is a fitting tribute to draw in this particular bill that we are able to work together very constructively to achieve a good outcome. On to my question: what obligation is there on police and domestic violence hubs to notify each other where reports of non-fatal strangulation are made?

Jaclyn SYMES: Mr Mulholland, there is nothing in our bill that changes any standards of reporting, but I think coming back to the previous conversation we were having in relation to education and to calling this out, making it a standalone offence will empower social workers and those that are at refuges and family violence support services and the like to be able to use the laws as a way to have a conversation with a victim: ‘You’re a victim of family violence, but if this has happened to you, you’re at risk of being murdered, so you should report this to police.’ So I think in terms of it being a tool to have targeted conversations about the high risk that predominantly women are facing, it will be a good outcome for our service providers.

Evan MULHOLLAND: You might have already answered this, but I will ask it anyway: are there obligations on hospitals to make referrals to police or family violence hubs where presentations of non-fatal strangulation are made?

Jaclyn SYMES: There are no changes to any reporting requirements or mandatory reporting in relation to this, but you have identified an area where there are good partnerships between community legal centres and the health sector. For example, we know that our medical professionals are often the ones that are uncovering or receiving disclosures from victims because they are either receiving medical treatment for violence, or indeed a lot of women might be accessing maternity services. We know that that is where a lot of disclosures are made, and there are good networks between our health providers and our legal networks. Again, being able to have conversations about non-fatal strangulation as a standalone offence will strengthen that support.

Evan MULHOLLAND: Will police be educated that the new law is now available as an option?

Jaclyn SYMES: Yes. Police have been heavily involved in the development of this legislation. Obviously it is Victoria Police that will be determining charges under the new law, so it was very important to have all of their feedback. It is one of the main reasons that the consent defence argument kind of fell where it did in relation to how they want to be able to ensure that it is a law that they can apply. So they will undertake their normal training for their workforce when it becomes operational in October next year.

Evan MULHOLLAND: Just one final question, and I will move my amendment after Mr Bourman does later on: how will prosecutors and the courts understand what this bill will do and the intention of it?

Jaclyn SYMES: It is just normal practice in relation to when the Parliament passes laws – the courts adjust appropriately. They will have their practice notes et cetera, and as I said, this is a law that I really want to keep a close eye on. We have got a statutory review that we are happy to accept. Again, you do not want people charged with this, because you just do not want them doing the behaviour. To have a standalone offence that can apply is something that we think will make women safer, and hopefully through the debate and the legislation we have given the courts a good indication of what the intention is here.

Rachel PAYNE: Firstly, I would just like to thank the Attorney-General and her staff for assisting us with some of these questions. I really do appreciate that this is a huge body of work. It is such important legislation, and we are all here to make sure that this legislation passes the house. But it would be remiss of me not to talk about – and I know that the Attorney has mentioned consent defence in summary – my previous job where I was an advocate for the adult industry. I have had interactions with police regarding people in BDSM relationships where that consent was removed, and it was quite complex to deal with how we navigated that legislation at the time. My question concerns the offence of non-fatal strangulation against a family member intentionally causing harm. The reality is that many members of the BDSM and wider community desire the intentional infliction of pain and consensual sexual choking. That is not family violence. Can the Attorney-General confirm it is not the intention of this legislation to capture consensual sexual activity of this type?

Jaclyn SYMES: It is certainly not the intention, but I acknowledge that it could. Again, we have had many hypotheticals and conversations in consultation with sexual health stakeholders, and of course they have advised us similarly to your contribution. We know that non-fatal strangulation is becoming increasingly common as a consensual, legal activity in relation to what people do in their private time. Pressure on the neck and/or restriction of breathing is often referred to as ‘breath play’ and may be consensually engaged in by some members of the BDSM community. I guess I am comforted by the fact that it is not anticipated that people who engage in consensual sexual activities are going to make a police complaint; however, as I said, it could be captured if they did. In the conversations I have had with Mr Bourman we have tried to limit the laws as much as possible to not capture genuine consensual activity, but I will acknowledge that some BDSM practices could be considered to meet the elements of the 10-year offence, and we know that that is especially because we have removed the excuse of consent.

I acknowledge that this is not an unintended consequence. We know that it could happen, and as I said, we will keep an eye on these things, but removing the consent defence is consistent with the longstanding principle from the Brown case that a person cannot consent to being seriously injured. While that case relates to serious injury as opposed to injury in this instance, it provides a background rationale that the risk of harm is too great to render it a social, acceptable activity. Narrowing the offence to family members will avoid unintended consequences in a lot of situations, but I acknowledge that people from the BDSM community will very likely fall within the definition of ‘family member’. As I said, I am comforted that consenting adults would be unlikely to report these matters to police, and in the event that a matter is reported by a partner or someone else, police and prosecutorial discretion can act as a safeguard. Again, I know it is not a perfect answer; it is just as perfect as what we could make it.

Rachel PAYNE: Given that that is the case, can you confirm that you expect the police and/or the Office of Public Prosecutions to exercise their discretion and not proceed with charges in these types of cases?

Jaclyn SYMES: What I will say, Ms Payne, is that application to ordinary, consenting BDSM conduct is not the intention of these reforms. While there is some risk, I do not want this bill to be taken as any judgement or discouraging of such behaviour. It is not the focus of this bill, and as I said, I would hope that police and prosecutorial discretion will act as an appropriate safeguard as much as possible in any of the conduct that may be captured.

Rachel PAYNE: My question again concerns the offence of non-fatal strangulation against a family member intentionally causing injury. The current definition of ‘injury’ at law includes mental and physical harm, whether temporary or permanent, with the definition of ‘injury’ including substantial pain – ‘substantial’ of course being quite a subjective word. With this broad definition of ‘injury’ and the potential for this offence to apply to something as simple as siblings playing jujitsu, my question is: do you expect the police to exercise their discretion and not lay charges where the injury suffered is insignificant, such as an injury where there is temporary substantial pain?

Jaclyn SYMES: I think my answer is pretty similar to the last one. This is targeted. The intention of this bill is to cover family violence situations – we know that these practices are leading to dire outcomes. As I said, it was in conversations with police to not have the consent defence – they were one of the supporters of that – but they acknowledged that that was to enable them to capture the behaviour they wanted to, not to broaden it out so that they could pick up non-intentional harmful behaviour, particularly between other family members – teenage siblings and the like. But again, we are conscious of those types of scenarios potentially being captured. We do not think they will be, but that will also be a situation where we can keep an eye on things for the review. We can continue to engage with stakeholders on any proportionate impacts.

Rachel PAYNE: I am going to continue on that similar theme. Given the leading authority around consent in this area, the UK case of R v. Brown, applies only to serious injury, is it injuries that only fall towards the more serious end of the injury definition that you expect should attract prosecution under this new charge?

Jaclyn SYMES: In relation to the Brown case, it was in reference to serious injury as opposed to injury, and it does provide the background to the rationale that the risk of harm from non-fatal strangulation intentionally causing injury is too great to render it a socially acceptable activity. Non-fatal strangulation can cause a range of injuries that may not be considered substantial and protracted or to endanger life, such as loss of voice, temporary memory problems, difficulty breathing or swallowing, or indeed bruising. These injuries may be difficult to prove, as they may not always leave visible signs. It is also difficult to measure what degree of impaired bodily function is dangerous, as even a brief deprivation of oxygen to the brain can be serious and lead to later complications, with a range of health issues such as pneumonia or embolisms. Setting the threshold at injury reflects this risk and strongly conveys the message that any intent to cause injury by choking, strangling or suffocating a family member is not acceptable.

Rachel PAYNE: This will be my final question for the Attorney, and I thank the Attorney for her responses. My final question concerns the definition of ‘chokes, strangles or suffocates’. The current definition includes ‘applying pressure to the front or sides of a person’s neck’. With stakeholder concern that this definition is too vague and can include merely the placement of a hand, my question is: would you expect the review of this bill to consider the potential benefits of reframing this definition for the purposes of reducing ambiguity and better fulfilling the policy intent of this bill?

Jaclyn SYMES: Ms Payne, the review is all about making sure the intent of the policy can be realised, so definitions such as what constitutes non-fatal strangulation will certainly be in scope.

Amendment negatived; clause agreed to; clause 2 agreed to.

Clause 3 (11:44)

Evan MULHOLLAND: I move:

1. Clause 3, page 11, line 27, omit ‘34AE.”.’ and insert “34AE.”.

2. Clause 3, page 11, after line 27 insert –

‘34AL Review of amendments made by Crimes Amendment (Non-fatal Strangulation) Act 2023

(1) The Attorney-General must cause a review to be conducted of the operation of –

(a) this Subdivision; and

(b) section 5(2)(ba) of the Family Violence Protection Act 2008.

(2) The review must be commenced no later than 2 years after the commencement of the Crimes Amendment (Non-fatal Strangulation) Act 2023.

(3) The review must be completed no later than 6 months after it commences.

(4) The Attorney-General must cause a copy of the review to be laid before each House of the Parliament no later than 14 sitting days after receiving it.”.’.

I think it is important to have a statutory review to see not just the change we implement through this bill and if it has had an effect legislatively but how police are responding to it, how family violence groups are responding to it, how hospitals are responding to it, and how the courts and the broader Victorian community are responding to it. Parliament did this recently with the bail reform changes, and I am very, very grateful that this appears to have received bipartisan support. I understand my colleague the Shadow Attorney-General Michael O’Brien has spoken to the family, who are very supportive of this review as well.

Amendments agreed to; amended clause agreed to; clauses 4 to 6 agreed to.

Reported to house with amendments.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (11:46): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (11:46): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council has agreed to the bill with amendments.