New family violence restraining orders provide 21st century victim protection
Revenge porn to be included on new orders
Up to 20 years jail for intentional foetal homicide
Breaches of restraining orders tightened on third strikes
Unlawful assault causing death to attract a 20-year maximum jail term
Anyone who cyber-stalks or posts 'revenge porn' online to blackmail or humiliate their current or former partner could face a two-year jail term under landmark laws which form part of the biggest overhaul of family violence legislation in the State's history.
Attorney General Michael Mischin said the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 was part of the Liberal National Government's push to better protect victims of family violence while holding perpetrators of family violence to account for their actions.
Mr Mischin said the legislation introduced Family Violence Restraining Orders (FVROs) into the court system, which a court must issue unless it was inappropriate to do so, such as if the primary aggressor in a relationship was seeking an order against a victim.
The Attorney General said the FVROs would enable the court to order an offender to attend a behavioural change or intervention program to prevent further family violence from occurring. It would also empower the court to restrain a person from distributing or publishing intimate images of a person and from cyber-stalking.
"On its own, the justice system cannot eliminate family violence. However, we can encourage and support victims of violence in the home while seeking to deter, and punish, those in the community who choose to offend, and that is what this law does," he said.
"In particular, those who breach the conditions of a FVRO by posting 'revenge porn' on the internet or by using technology to stalk the subject of the order online will face serious criminal charges, which could send them to jail for two years."
Deputy Premier and Police Minister Liza Harvey said the overhaul of the legislation was primarily about supporting and protecting victims of crime.
"Not only do the proposed punishments reflect community expectations, the changes will also protect vulnerable people and give victims confidence, perpetrators will be held to account," Ms Harvey said.
Mr Mischin said the Bill also addressed a 2012 commitment made by the State Government to clarify and strengthen Western Australia's criminal law in relation to unlawful acts which caused harm to a woman's unborn child or the loss of her pregnancy.
"While nothing can ever undo the loss of a pregnancy or harm to an unborn child that an expectant mother and her family will suffer as a result of a criminal act, this Bill confirms that violence to an unborn child is violence to the mother, and that such actions are unacceptable and will not escape an appropriate punishment," he said.
"If a person intentionally causes grievous bodily harm to a pregnant woman which results in the loss of her pregnancy, that person will face up to 20 years' imprisonment, while a person who causes grievous bodily harm to a woman's unborn child in other circumstances could be jailed for up to 14 years."
Other key aspects of the Bill include:
- increasing the maximum sentence for the offence of unlawful assault causing death from 10 years to 20 years. While the offence was originally introduced to deal with 'one-punch' homicides in the context of drunken violence, it has also been used in family violence cases when more serious charges cannot be proven due to lack of witnesses
- introducing a contemporary definition of 'family violence' in the legislation to include not only physical injury, but also behaviour which 'coerces, controls or causes fear' such as assault, damaging or destroying property, causing a child to be exposed to family violence, killing or injuring the family pet, stalking, or withholding financial support from the victim. This definition - the basis for making a FVRO - would replace the current system where the victim needs evidence of a specific 'act of abuse' to obtain a restraining order
- preventing family violence perpetrators facing multiple breaches of a restraining order to 'game the system' in court by repeatedly using remands and adjournments to delay sentencing and avoid jail after 'three-strikes'
- allowing victims who have a FVRO against a jailed offender to be heard when the offender is considered for release from prison, even if the offender is in jail for offending unrelated to the family violence. Such victims will also be able to make a submission to the Prisoners Review Board about protective parole conditions
- clarifying that FVROs can, and should, where appropriate, be made for a period of longer than the current default two-year period. Courts will be required to prioritise victim safety, and to have regard to the views of the victim, when determining the duration of an order. In cases where the respondent has been jailed, the duration of the FVRO will be for the period of incarceration plus two years in order to avoid the victim having to re-apply for a FVRO when the respondent is released from prison
- requiring courts to have regard to any 'risk relevant' information in making decisions about FVROs, such as police incident reports, as well as its own records on a perpetrator's previous criminal convictions, restraining orders and legal proceedings
- making it tougher for family violence perpetrators to avoid being served with restraining orders, by requiring courts to consider whether the safety of the victim requires the order to be served over the telephone, for instance, and introducing a new criminal offence if a person who is to be restrained by a FVRO refuses to accompany a police officer to a police station to be served with the order.
In addition to the two-year maximum sentence for those who breach an FVRO by cyber-stalking or distributing/threatening to distribute 'intimate personal images of the person protected by the FVRO, the Commonwealth Criminal Code makes it an offence to use a 'carriage service' (which includes a telephone or internet service) in a way that is menacing, harassing or offensive. The maximum penalty for this offence is three years' imprisonment
The Liberal National Government is also introducing the Sentencing Legislation Amendment Bill 2016 into State Parliament this week, which proposes stricter controls for serious offenders through two-year post-sentence supervision orders, including via GPS tracking
The Bill also broadens the definition of a victim of crime to include both the primary victim and that person's immediate family, which will give a voice to a greater range of victims, both at the point of sentencing and if a prisoner is being considered for parole
Attorney General's office - 6552 5600
Deputy Premier and Police Minister's office - 6552 5900