Crimes (Domestic and Personal Violence) Amendment (Information Sharing) Bill 2014

This speech was delivered on 28th May 2014 in the NSW Upper House. You can read the full debate online here.

Mr DAVID SHOEBRIDGE [9.27 p.m.]: I will make an initial contribution to the Crimes (Domestic and Personal Violence) Amendment (Information Sharing) Bill 2014 on behalf of The Greens. I make this contribution having only been in possession of a copy of the bill for slightly less than 24 hours. The contribution made by the Deputy Leader of the Opposition was also somewhat constrained because there has not been the ability to engage with extremely important stakeholders such as Women’s Legal Services and Wirringa Baiya Aboriginal Women’s Legal Centre. Both of those organisations have previously made very important contributions to the committee from which much of the thought behind this bill originated. They contributed to the earlier version of this bill that came before the House one year ago today. My colleague Dr Mehreen Faruqi will make a further contribution to this debate at another time, hopefully with the benefit of detailed consultation with those essential stakeholders. All members should undertake that consultation before they vote one way or another on this bill.

The overview of the bill states that the bill provides for three basic things: First, it permits dealings with information about what is defined as a “primary person”, which is a person who is or is alleged to be subject to or threatened by domestic violence and any associated respondent being a person who is or is alleged to be the perpetrator of the violence or the cause of the threat without the consent of the primary person or associated respondent but only to seek the primary person’s consent, first, to the provision of domestic violence support services to the primary person or, secondly, to further dealings with the information in relation to the provision of those services.

The second object of the bill is to permit dealings with information about the primary person—that is, the person who is or is alleged to be subject to a domestic violence threat—and any associated respondent without the consent of the associated respondent for the purposes of providing domestic violence support services to the primary person. Finally, the bill sets out the circumstances in which an agency may deal with information about a person without the person’s consent where the agency believes domestic violence poses a serious threat to the life, health or safety of any person. It is that third element that is most controversial. It was that element in the 2013 bill that created real difficulties. The Greens will be seeking substantial guidance from stakeholders on that point before adopting a final position on this legislation.

This bill allows not only for the sharing of information with the consent of the alleged victim of domestic violence and free from concerns about the privacy of the alleged perpetrator but also for the sharing of information about the victim and the alleged perpetrator even in circumstances in which the victim does not give consent—in fact, when the victim expressly requests that the information not be shared. In doing so, this bill establishes a new regime by providing for a central referral point and safety action meetings. Much of how these central referral points and safety action meetings operate will be determined not by the legislation but by protocols that we have been told the Government will introduce in due course. We not seen a draft set of protocols.

The Hon. Adam Searle: It has been only a year.

Mr DAVID SHOEBRIDGE: I note the Deputy Leader of the Opposition’s interjection. Despite it being more than a year since the previous bill was passed there does not seem to have been much meaningful work on the development of those protocols. No draft protocols have been taken to stakeholders or provided to members of this House. However, the Attorney General stated yesterday in his second reading speech in the other place:

The domestic violence reforms establish a central referral point, which will receive referrals from agencies, including the NSW Police Force and the local court, under the framework. The central referral point will be an electronic platform which receives and processes referrals and passes on information to local coordination points in the victim’s local area. The local coordination point will contact the victim seeking consent in order to provide domestic violence support services and for further sharing of information. As part of the domestic violence reforms a new risk assessment tool has been developed. This will be used by agencies that come into contact with victims of domestic violence to assess the level of threat experienced by the victim to determine the appropriate support response.

That central referral point is proposed to be established under new section 98F, which allows for the central referral point to collect personal and health information. I understand from the Attorney General’s contribution that an electronic database will be created in the office of the secretary of the Department of Attorney General and Justice. How that will operate in practice is not known. How the information will be provided from the central referral point to the local coordination point also is not known. Will it be provided to specific service providers at the local coordination point or to some central referral person at the local coordination point? How it will operate in practice is important because messages about a safety threat may well contain deeply personal information. The Greens want to know how the Government will protect that information when it is transmitted from the central agency to the local coordination point. The other aspect of these reforms is the establishment of safety action meetings. The Attorney General stated in the other place:

These are designed to coordinate an integrated agency response for victims identified as subject to serious threat in relation to domestic violence. These meetings will bring together representatives from key government agencies and non-government agencies that provide services to victims experiencing domestic and family violence in the local area. These safety action meetings will develop and implement multi-action safety action plans for victims.

That is the sum total of the detail that has been provided to the Parliament. It is likely that the safety action meetings will involve officers from the Department of Family and Community Services, members of the Police Force and potentially non-government service providers. Again, The Greens want further detail from the Government. We want the Government to put some meat on the bones about how the meetings will work in practice. One of the two most substantive provisions in the legislation is in new section 98D, which as the Deputy Leader of the Opposition noted largely mirrors the existing provision. That new section provides for the disclosure of information by agencies in the case of threat. It states:

(1) This section applies if an agency believes on reasonable grounds that a person (the threatened person) is subject to a domestic violence threat.

(2) The agency may disclose personal information and health information about the threatened person and any person that the agency reasonably believes is a cause of the threat (the threatening person) to the central referral point or a local co-ordination point for contact purposes.

(3) Any such disclosure requires the consent of the threatened person. No consent is required from the threatening person.

(4) In such a case:

(a) the threatened person is taken, for the purposes of this Division, to be a primary person, and

(b) the threatening person is taken, for the purposes of this Division, to be an associated respondent.

That provision, which allows for the sharing of information only with the consent of the threatened person, is relatively non-controversial and is almost wholly embraced by the agencies that made submissions to the Standing Committee on Social Issues and about the 2013 bill. The more contentious provision is new section 98M, which deals with serious domestic violence threats and which provides:

(1) In this section:

dealing

 with information means the collection, use or disclosure of the information.

(2) An agency may, despite the privacy legislation, deal with information about a person without the consent of the person if the agency believes on reasonable grounds that:

(a) the particular dealing is necessary to prevent or lessen a domestic violence threat to the person or any other person, and

(b) the threat is a serious threat, and

(c) the person has refused to give consent or it is unreasonable or impractical to obtain the person’s consent.

In that regard I note that the contribution of my former colleague the Hon. Cate Faehrmann to this House when speaking to the 2013 bill. She referred to the very strong reservations voiced by both the Women’s Legal Service NSW and the Wirringa Baiya Aboriginal Legal Centre. She also referred to correspondence received from a Sydney-based domestic violence service solicitor and stated:

While we support efforts made to improve the system’s responsiveness to disclosures of family violence, we believe information sharing is a very complex issue and requires careful consideration, particularly regarding the many and potentially serious implications of such information sharing. We are not convinced that the Bill is providing a solution that meets a distinct and articulated problem or that the benefits in information sharing without consent outweigh the risk. Our experience tells us that it is unlikely to achieve its intended benefits for many victims of domestic violence and it has inherent safety and breach of privacy risks which are not adequately addressed when consent is dispensed with. Further, many women may be reluctant to report domestic violence to police as a result.

It is that reluctance that may operate if a woman, who has been the subject of domestic violence, is concerned about going to a service provider, a shelter or an agency to seek protection. She could be told that, having sought protection, the provider, the shelter or an agency may provide all the information it collected on her to the NSW Police Force, without her consent, in order for a criminal prosecution to be mounted against the violent perpetrator. There are many conceivable circumstances where that might deter women from taking a first step to seek protection.

Another concern raised by the Women’s Legal Service was that sharing information without consent may lead to the sharing of inaccurate personal information about the alleged victim, and that information being circulated to the NSW Police Force and support agencies. In that regard I note that the supplementary submission by the Women’s Legal Service to the Standing Committee on Social Issues identified, in particular, statements to the police are prone to error. The service said in its submission:

… there are many instances where a woman in calmer circumstances might provide a more thought-through statement to include a pattern of previous abuse or to recall the details of the incident, in particular dates and times. This evidence is often critical in hearing and the subject of cross-examination regarding credibility.

In other words, a half-thought-out, emotional concern disclosure made when a woman is under extreme emotional pressure ends up being presented to the police and recorded in police records. If there is a criminal trial, that partial, emotional disclosure that has not been carefully thought through can be used against the woman in the course of cross-examination. Her credibility can be torn apart because key facts she would have included, had she been given the opportunity to make a careful statement when not in the throes of domestic violence, are often missed. Far from protecting women, this kind of rapid, non-consensual sharing of information can leave women with less protection. If the matter comes to court the initial partial disclosure, having being passed through the agencies, forms part of the police record which can destroy her credibility.

The Wirringa Baiya Aboriginal Legal Service noted that Aboriginal women are particularly sensitive and concerned about information they provide being shared with other agencies without their consent. Cate Faehrmann, in her second reading contribution on the 2013 bill, spoke of what Ms Martin, the solicitor from Wirringa Baiya Aboriginal Legal Service, said in a letter to her office:

… this susceptibility emanated from the “long sad history of government agencies controlling their lives.” It is important for members to hear what Ms Martin wrote and for the Government to consider supporting a couple of my amendments that address this issue. Ms Martin said:

The Aboriginal population is small and community networks and links are tight, especially in rural communities. There is a significant risk that information about an Aboriginal woman victim could be given to a service that has worked [or is] known to the victim and/or the alleged perpetrator. This will cause embarrassment and shame to the victim with other people knowing her business, and potentially create a risk for her if the worker is a friend, family or kin of the perpetrator. We are thus concerned that these amendments will create a further disincentive for Aboriginal Women to seek assistance from police.

That is deeply concerning and we intend to continue to consult with stakeholders on this matter. I have not heard this concern addressed by either the second reading speech or the contribution from Government members to this bill in this House. I note that we are having this discussion on a night when the State of Original match is being played. Many women in both New South Wales and Queensland hope their team wins, not because they love rugby league but because they are concerned about the potential for violence by an angry spouse who has consumed alcohol. We should be mindful of the real impact of domestic violence when we pass such legislation. It has been said that one woman a week loses her life to domestic violence.

There was a rapid response to the tragic loss of a few lives from alcohol-fuelled violence in public but not the same rapid commitment of money and legislation to deal with domestic violence. In fact, as we are having this debate and listening to Government members’ concerns about domestic violence the Government is introducing Going Home Staying Home reforms.

The Hon. Sophie Cotsis: And it is closing down the refuges.

Mr DAVID SHOEBRIDGE: We know that half a dozen women’s refuges within a five-kilometre radius of this place will be shut down as a result of those reforms. In particular, some crucial women-only services are being shut because they will not meet the tender process for the Going Home Staying Home reforms. One example, Detour House Inc., is in the electorate of Balmain, where it has been operating for 30 years. The member for Balmain, Jamie Parker, said:

Detour provides care for women and girls who have experienced drug and alcohol dependency. It offers supported accommodation to young women aged 13 to 17 who are homeless or at risk of homelessness, but the organisation’s Young People’s Refuge for girls at Leichhardt has been forced to tender on the basis it offers services for both males and females aged 12 to 25. The known and inherent dangers of putting at-risk girls and boys together—given the history of sexual abuse in institutional settings—is being shamefully ignored.

While we are considering this legislation, we know the Royal Commission into Institutional Responses to Child Sexual Abuse is looking at these very issues and saying, “Do not repeat the mistakes of the past”. What do we get? We get programs from this Government that repeat the exact mistakes of the past. Today the Federal Government, of the same political colour as the State Government, cut $7 million from the royal commission, which is doing crucial work. Mr Parker also said:

Other services under threat include the Stepping Out Housing Program based in Leichhardt, which opened in 1986. Stepping Out works with women and women with children who are homeless and survivors of childhood sexual abuse.

Because this service deals only with women it is not meeting tendering processes. Going Home Staying Home reforms are deeply destructive of these kinds of services. Mr Parker said B Miles Women’s Foundation, Women’s and Girls’ Emergency Centre and others are also at risk. This bill is one small part of dealing with domestic violence. My colleagues will have further contributions on it. It is one thing to say things about domestic violence; it is another thing to put in place money and services.

Debate adjourned on motion by Mr David Shoebridge and set down as an order of the day for a future day.