CRIMES AMENDMENT (ABOLITION OF DEFENSIVE HOMICIDE) BILL 2014
Ms GARRETT (Brunswick) — I am pleased to rise on behalf of my electorate to make a contribution on the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014. As previous speakers have stated, Labor does not oppose this bill. As the house is aware, the offence of defensive homicide was introduced in Victoria by the Crimes (Homicide) Act 2005 as a result of recommendations following comprehensive analysis by the Victorian Law Reform Commission.
That act was designed to deal with the issue of women who feel they are compelled to act in self-defence when they kill domestic abusers. That situation was not adequately dealt with in the law at the time, and this was an attempt to acknowledge the traumatic and difficult circumstances that sadly many women and children in this state find themselves in.
Unfortunately, as sometimes happens when lawyers become involved with legislation and the law, a review of this offence by the Department of Justice showed that the vast majority of convictions for defensive homicide in Victoria were against men, many of whom did not have a family relationship with the victim, and that it had been used to invoke a lesser charge for those individuals. Clearly the legislative framework was not properly addressing the ill it was intended to cure. However, as the member for Macedon pointed out — very eloquently and clearly, I thought — the law reform process is a journey. The important thing is that proper law reform committees and commissions are in place — and I note with some disappointment that this government abolished the parliamentary Law Reform Committee — and that these institutions are available to assess and analyse and that reviews are undertaken of how laws are implemented, argued and dealt with through the court system to ensure that the intention of Parliament is reflected in practice.
This bill addresses some of those issues by abolishing defensive homicide and removing references to it from the Crimes Act 1958. As I said, Labor does not oppose this approach.
Of note and import is that the bill defines the term ‘family violence’ to include physical, sexual and psychological abuse against a family member. We know that insidious abuse can come in many different forms and that psychological and sexual abuse can be just as terrifying and distressing as other forms of abuse and can in a very serious manner diminish the capacity of women and children to live their lives to the full, so we applaud that definition.
Of note is that self-defence will be introduced into the act as a statutory defence and that the common-law defence will be abolished. It is worth quoting new section 322M, which provides:
- … a person may believe that the person’s conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them,
- (a) the person is responding to a harm that is not immediate; or
- (b) the response involves the use of force in excess of the force involved in the harm or threatened harm.
I am sure the Parliament will keep a close eye on how this new defence is interpreted and argued and on the results it delivers to ensure once again that the intention of the Parliament and the will of the people are reflected in practice.
The bill also introduces duress as a statutory defence and abolishes the common-law defence of duress. New section 322P provides:
- … evidence of family violence may be relevant in determining whether a person has carried out conduct under duress.
There are a range of provisions in the bill that relate to issues surrounding sudden and extraordinary emergencies. New section 322R provides:
- A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency.
That applies if there is reasonable belief and the like in relation to those. Although it is not defined further in the act, it is applicable in similar circumstances to the common-law defence of necessity, which this effectively replaces.
The bill contains provisions relating to intoxication, reasonable belief and reasonable response, and it introduces new laws around complicity in criminal offences relating to intentionally assisting, encouraging or directing the commission of an offence or intentionally assisting, encouraging or directing the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. There are a range of provisions relating to entering into agreements for the commission of offences.
The bill adds general discretion that will allow the court to exclude evidence where the court believes the probative value of that evidence is outweighed by the likelihood that it will unnecessarily demean the deceased in a criminal proceeding for a homicide offence, and Labor thinks that is particularly important. The bill creates new jury directions in criminal proceedings where there is self-defence or duress in situations of family violence.
The judge may, at his or her discretion, bring certain facts about that violence to the jury’s attention.
It is clear that family violence is a huge issue in Victoria; it is claiming lives on a weekly basis. It is destroying the health, wellbeing and sense of security of thousands upon thousands of women and children in the inner city, in the outer suburbs, in the regions, in every socio-economic band and in every walk of life. In a national emergency such as this, we as parliamentarians, being charged with a very serious and solemn responsibility, must respond in a manner that befits the scale of the problem.
If we are successful in November, the commitment of Labor and the Leader of the Opposition to implementing a royal commission into family violence to look at all facets of how we have previously dealt with this growing epidemic — from our law reform responses, to service delivery, to police resourcing and responses, to community engagement and the like — is absolutely critical. We note that groups that represent those who have suffered family violence have been calling for this and that piecemeal approaches, doing what has always been done, bandaiding issues and driving them underground have not worked and are not working because the problem is growing and the number of victims is growing.
It is completely unacceptable that on any given day or night such a large group of Victorians do not feel that their home is in any way a sanctuary. They do not feel safe in their homes; in fact they feel quite the opposite. The home is a place of terror, of torture and of fear. As for the innocent children involved, one can only stand here in horror at the thought of those small people going to bed every night in such horrific circumstances.
Labor does not oppose this legislation.
We welcome the law evolving and we welcome Parliament responding to issues that have arisen, but we do note that this issue requires a comprehensive approach, not just a legislative approach. It requires a resource approach, a cultural change approach and a law enforcement approach that addresses the heart of the issue — not just window-dressing.
Hansard, 3 September 2014