Key developments
- Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW)
- Commonwealth legal assistance funding
- Australia’s Universal Periodic Review
- Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth)
- Electronic conveyancing
- Removal and use of gametes from deceased persons
- Australian Securities and Investments Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014 (Cth)
- Motor Accidents Compensation Regulation 2015 (NSW)
Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW)
The Law Society’s Criminal Law and the Juvenile Justice Committees wrote to the Attorney-General in relation to the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014, which received assent on 28 November 2014 but has not yet commenced.
The Act enables the use of recorded interviews with complainants in domestic violence proceedings instead of written statements or oral evidence. The Department of Justice will monitor the operation of the Act for six months following the commencement of the legislation.
The committees expressed concerns is a concern that complainants appear to have no discretion about whether their recorded evidence is used in proceedings.
The committees noted that they understand that recorded statements will be taken at (or shortly after) domestic violence incidents, which is often a highly emotive, and likely fraught, time.
While the committees appreciate the need to deter false claims, the committees are concerned that sections 85(1A) and 189(1A) may expose genuine complainants to prosecution and to very serious consequences.
The committees noted their concern that this may result in some domestic violence victims choosing not to report instances of violence.
The committees acknowledged that, under the Criminal Procedure Amendment (Domestic Violence Complaints) Act 2014, the prosecutor must take into account the wishes of the complainant in deciding whether or not to use the recording as evidence in chief. However, in the committees’ view, this does not go far enough. The committees submitted that the Act should be amended in a number of ways.
The committees also noted that policy and legislative changes relating to domestic violence often are based on domestic violence incidents between two adults.
This can lead to unintended consequences where Apprehended Domestic Violence Orders (ADVOs) are taken out by parents or carers against children.
Parents often change their minds in relation to taking action against their children, and the recording procedure in the Act could disadvantage children who already face a power imbalance where parents or carers have taken out the ADVO.
