Legislative Assembly for the ACT: 2001 Week 10 Hansard (30 August) . . Page.. 3821..
MS TUCKER (continuing):
Consistent with the current legislative scheme, the Committee believes that domestic violence should be distinguished politically and conceptually from other types of violence, and consequently a separate Domestic Violence Act should be maintained:
to highlight the problem of domestic violence within the community;
to enable civil legislation and court procedures to be tailored to the relevant group;
to facilitate certainty in the application of the criminal law, and specifically the enhanced arrest and bail powers in relation to domestic violence offences, as recommended by the Committee in Part 1 of this report, by maintaining the relationship between the parties as the distinguishing feature for the purpose of both the criminal law and civil proceedings under the Domestic Violence Act;
for statistical purposes.
The government's proposed amendments have slightly re-emphasised the importance of domestic violence in the act, but it's a far cry from a separate act. I would need to be convinced that this change is being made having full regard to the domestic violence arguments. The lack of consultation does not bode well. It may be that the clarity can be maintained even with two separate acts.
On non-domestic violence orders, this bill is not only making the law clearer. It seems that the process of obtaining what is proposed to be called a personal protection order has been made easier, and so is harder on the alleged offender. As the explanatory memorandum put it, where there was a stronger version, the stronger version held. That sounds a bit like whittling away at justice. We need to have a better look at these changes, whether or not they are technical and complex.
If we are looking at how protection orders work, and it is not urgent-we know that the court has already retrained, reissued orders that were called into doubt, and created a procedures manual-let us look at the other questions.
How well would people with a disability be served by the system if it were changed by this bill? Concerns were expressed to my office about the definition of legal disability in this bill, and questions were asked about who would decide that someone was a person under disability when the definition expressly leaves it open. The department explained that the assessment of whether someone is legally competent is a standard process. However, there are differences in the definitions in the Magistrates Court (Civil Jurisdictions) Act where "person under disability" means a person who has not yet attained full age or a person who is not of sound mind. In this bill "person with a legal disability" means a child or someone with a "mental disability". This in turn means someone who is not legally competent because of a mental or intellectual disability.
What is the effect of this difference, Mr Speaker? People within the disability sector have raised these questions about the definition and whether it would be discriminatory.