Legislative Assembly for the ACT: 2005 Week 04 Hansard (Thursday, 17 March 2005) . . Page.. 1162 ..
consistent with the definition in the United Nations Declaration on the Elimination of Violence Against Women, which includes psychological violence.
The committee’s report goes on to state:
The notion of “domestic violence” is currently defined to include conduct which causes physical or personal injury to a relevant person, and which is a threat of such injury. By proposed section 9 (3), personal injury would now include “nervous shock”.
The Explanatory Statement equates the notion of “nervous shock” to “psychological violence”. Whether this is correct will be a matter of interpretation. Nervous shock is generally regarded as an “identifiable mental injury, capable of being recognised in medical terms as genuine ‘psychiatric illness’’’ (Balkin and Davis, The Law of Torts, 2nd ed, 1996, 243). It is a misnomer to speak of “shock”, in that a person might be recognised in law as having suffered the condition even though they were not shocked by anything.
I hear what the attorney says but, as a result of the committee’s report, we have some concerns about this matter; hence the amendment. I think that this is an important area. This is an extension of the act and I think that it is important to make absolutely certain that it will do as the attorney has indicated he intends it to do, that it is consistent with other laws, and it does mitigate and negate the potential for abuse or the potential perhaps for a subjective test as to what exactly is nervous shock, what exactly is personal injury. We would submit, as a result of the scrutiny report, that this provision needs to be better defined. It is something that we would want the attorney to take away and maybe bring back if it is important to have it in there.
I do note that this bill basically rehashes what is there already with the addition of the reference to threats against animals and personal injury. Indeed, paragraph (e), which relates to an act being harassing or offensive to a relevant person, is pretty broad and is capable of picking up quite a lot of the problems in the domestic violence area which would, quite rightly, cause actions to be a domestic violence offence which would not necessarily be physical in any way.
There are several issues there which do need a better look at and there is, I am submitting, a potential for consequences here which would not be fair in the circumstances, a potential for a very broad interpretation of what personal injury actually was, including nervous shock. My submission to the Assembly is that it should support these amendments. Indeed, we feel that the matter does need further explanation and we would welcome the attorney taking it away and coming back with something that alleviates the issues raised in the scrutiny report.
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (12.30): As I indicated, the government does not propose to support the amendment. The removal of personal injury, as proposed by Mr Stefaniak’s amendment, would result in the status quo being maintained. This would mean that where a victim has suffered mental distress but has not been subject to physical violence, the court would only be able to