Thursday, 4 August 2022

Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022

Statement of compatibility

Ms KILKENNY (Carrum—Minister for Corrections, Minister for Youth Justice, Minister for Victim Support, Minister for Fishing and Boating) (10:13): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to protect and promote the rights of victims of sexual offences by implementing the following reforms:

Expanding the definition of consent in the Crimes Act 1958 and the circumstances where consent is deemed not to be given

Amending the Crimes Act 1958 to include a requirement that a person must say or do anything to find out if the other person was consenting in order to have a reasonable belief in consent

Relocating relevant image-based sexual offences from the Summary Offences Act 1966 to the Crimes Act 1958, making them indictable offences triable summarily and improving their operation

Amending the definition of ‘sexual offence’ in the Criminal Procedure Act 2009 to extend protections such as alternative arrangements for giving evidence to complainants of image-based sexual offences

Amending the Jury Directions Act 2015 in relation to sexual offences, including with regard to consent and reasonable belief, and explanations of ‘beyond reasonable doubt’ in criminal trials

Amending the Criminal Procedure Act 2009 to limit the circumstances in which vulnerable witnesses can be cross-examined and to expand the use of ground rules hearings; and

Expanding the confidential communications scheme in Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 in criminal proceedingsto better protect complainants’ health information.

The Bill will also extend certain temporary provisions in the Court Security Act 1980 and the Open Courts Act 2013 to assist the courts to operate effectively and efficiently.

Human Rights Issues

The following rights are relevant to the Bill:

Equality (s 8)

Right to life (s 9)

Freedom of movement (section 12)

Privacy and reputation (s 13)

Freedom of expression (s 15)

Rights of children (s 17(2))

Property rights (s 20)

Fair hearing (s 24)

Rights in criminal proceedings (s 25)

Retrospective criminal laws (s 27)

Affirmative consent (Part 2)

The Bill will implement the Government’s commitment to legislate a stronger model of affirmative consent and to clearly prohibit the removal of, tampering with or refusal to wear a condom without consent (a practice sometimes known as ‘stealthing’).

The Bill amends the definition of consent in the Crimes Act 1958 (Crimes Act), to clarify what consent is and the circumstances where consent cannot be assumed. It also clarifies what consent is not, by drawing attention to the non-exhaustive list of circumstances in which a person is deemed not to have consented. While some of these consent vitiating circumstances replicate existing law (in current section 36(2)), the Bill adds new circumstances (for example, to effectively codify the conduct often referred to as ‘stealthing’ as a circumstance vitiating consent) and amends some others.

The Bill also provides that a person’s belief in consent is not reasonable if ‘within a reasonable time before or at the time the act takes place’ they do not do or say anything to find out whether the person is consenting to the act. There is an exception to this requirement for those with a cognitive impairment or mental illness that is a substantial cause of them not saying or doing anything to find out whether a person consents to the act. The onus of proving the matters relevant to the exception is on the accused, to the balance of probabilities.

General promotion of rights

The new consent provisions implement recommendations of the Victorian Law Reform Commission report ‘Improving the Justice System Response to Sexual Offences’ (the VLRC report) to deliver a stronger model of affirmative consent. Key to this is requiring a person to have said or done anything to ascertain consent. By requiring participants in sexual acts to take active steps to confirm the other party is consenting, and by focusing on the actions of the accused, rather than the victim-survivor, the reforms will promote victim-survivor’s rights, and aim to reduce the prevalence of sexual offending through improved community understanding about consent in this context and the risk of traumatising victim-survivors through the criminal process. It is hoped that this will lead to fairer and more effective sexual offence prosecutions.

The provisions also promote the right to equality under section 8 of the Charter by using gender inclusive language, and by providing an exception to the requirement to say or do anything to ascertain consent for persons with a cognitive impairment or mental illness. I consider new subsections 36A(3) and (4) to be special measures under section 8(4) of the Charter, in that they are measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination, being persons with a cognitive impairment or mental illness who are overrepresented in the criminal justice system and may otherwise be disproportionately and unjustly impacted by these changes to consent laws.

As such, I consider these measures promote equality and do not constitute discrimination under section 8(3).

Limitation of rights

The Bill engaged the right to the presumption of innocence (section 25(1)) and the right against self-incrimination (section 25(2)(k)) under the Charter through the following provisions:

the requirement of new section 36A that an accused must have said or done anything to find out if the other person consents in order for them to have a reasonable belief in consent (the absence of which is the key fault element of many sexual offences), and

the requirement for an accused to establish evidence of a cognitive impairment or mental illness in order to avail themselves of the exception in new subsection 36A(3)

Rights to be presumed innocent and to not be compelled to testify against oneself

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence. This includes where a provision deems a fact to be proved in certain circumstances.

The right to be presumed innocent is closely related to the protection against self-incrimination contained in section 25(2)(k) of the Charter. This right provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

Both the presumption of innocence and the protection against self-incrimination encompass the right to silence, which includes the right of an accused to be free from adverse inferences drawn from their silence. It is considered a fundamental rule of the common law.

Affirmative consent provision (New section 36A(2))

Under new section 36A(2), if it is established that an accused did not say or do something to ascertain consent, they will be deemed to not have a reasonable belief in consent (the fault element of Victorian sexual offences where consent is relevant). This is effectively a ‘deeming’ provision. While the prosecution must prove beyond reasonable doubt the accused did not say or do anything, this may be easier in the absence of any evidence from the accused and the accused may deemed to have the requisite fault element as a result.

This may limit the right to be presumed innocent and the right against self-incrimination because the practical effect of the provisions may be that, even though not required by the legislation, an accused may need to lead evidence of certain matters as part of their defence—in this case, whether they said or did something to ascertain consent. This may in turn abrogate their right to silence and freedom from adverse inferences being drawn from their silence, as well as expose them to broader cross-examination, including in relation to other elements of the relevant offence.

While I accept that these provisions may limit what are considered fundamental criminal process rights of the common law, I am satisfied that these limits are reasonably justified, for the reasons that follow.

The nature of the right

As discussed above, the right to be presumed innocent until proven guilty according to law reflects a fundamental principle of common law that imposes on the prosecution the onus of proving the elements of an offence beyond reasonable doubt. Section 25(2)(k) of the Charter then outlines the specific right of an accused not to testify against or incriminate themselves, which the High Court has found reflects not only the privilege against self-incrimination, but is an aspect of the fundamental common law principle that the onus is on the prosecution to prove a criminal offence, and is an important feature of the accusatorial system of criminal justice. The rights are considered fundamental due to the gravity of consequences faced by an individual charged with a criminal offence, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social psychological and economic harms.

Further, the High Court has found in a related context (in X7 v Australian Crime Commission (2013) 248 CLR 92) that a change in the legal system which did not directly abrogate the right to silence in a criminal proceeding, but merely affected the decisions an accused would make about how to defend a charge, gave rise to a fundamental alteration of the accusatorial process of criminal justice. This illustrates that even indirect effects on how an accused conducts their defence may limit their right to the presumption of innocence and the right against self-incrimination.

Relevant matters to assessing the proportionality of any limits on these rights include the seriousness of the sentence likely to be imposed on conviction for such an offence, whether the nature of the offence makes it very difficult for the prosecution to prove an element of the offence, the gravity of the social problem or the extent of suffering caused by the offence, and whether the provision requires the accused to prove or lead evidence to support an exception, proviso or excuse (rather than an element of the offence) that is within the accused’s own knowledge. To be justified, there must be a compelling reason advanced as to why it is fair and reasonable to deny an accused person the protections normally guaranteed to everyone by these rights.

The importance of the purpose of the limitation

I consider that a compelling justification exists in this case. These measures serve an important and pressing objective of addressing the prevalence of sexual violence in Victorian society, and its devastating and lifelong impact on the safety of women and children in particular. The VLRC report found that sexual violence is serious, and widespread, and is estimated to affect one in five women, and one in 20 men, although such figures are considered to understate how common sexual violence is in the community due to under-reporting. In relation to the most serious of sexual offences, only one in 23 rape cases that are reported result in a conviction. Sexual violence has the capacity to cause long-term negative impacts for victim-survivors, including serious emotional and psychological distress. It affects people’s relationships, sense of wellbeing and lifestyle, trust in others, ability to engage in education and work, and their financial status.

The VLRC report also found that the justice gap in relation to sexual offences is real, and that charges were laid for only one-quarter of all incidents recorded by police. For many sexual offences involving adults, a lack of consent is a key part of the offence. The VLRC report found that there were challenges with how consent laws were interpreted and operate in practice, and that victim-survivors are still often required to demonstrate they did not consent through ‘active resistance’. This is reflected both in the decisions to continue investigations and in court processes, especially cross-examination. The VLRC report considered that recent case law has set a low bar for communicating consent that is arguably not within the spirit of the sexual offences legislation.

Having clearly defined sexual offences supports an effective justice system response to sexual violence. The way sexual offences are defined also sets standards for behaviour, shapes the community’s understandings of sexual violence and sets the boundaries for what sexual interactions are acceptable in society.

By providing for this deeming provision the reforms legislate a strong model of affirmative and communicative consent and send a strong message about what consent means and how it must be obtained by participants in a sexual act. The reforms in this Bill urgently address continued societal misconceptions and myths about sexual violence that have affected the effectiveness and fairness of prosecutions of sexual offences. Consistent with the recommendations of the VLRC report and reflective of a contemporary and holistic understanding of consent, the new model focuses more squarely on the actions of an accused (“What did the accused person do to make sure they had consent?”), rather than those of the victim-survivor (“What did the complainant do to say no?”), the latter of which is so often the focus currently. These reforms will collectively strengthen and clarify the provisions of the Crimes Act that relate to consent and reasonable belief in consent, and align Victoria’s laws with contemporary understandings and expectations of sexual consent—namely, consent can never be assumed, consent must be actively sought and positively expressed.

Nature and extent of the limitation

I accept that the nature and extent of the limitation is serious, in that it limits the criminal process rights of an accused in relation to serious offences which attract consequences of high gravity, including, in the case of the sexual offence of rape, Level 2 imprisonment (of up to 25 years maximum).

However, the extent of the limitation is mitigated by the fact that the Bill does not place any burden on an accused in relation to disproving the essential elements of the offence. New section 36A(2) still requires the prosecution to establish the negative proposition that an accused did not say or do something to ascertain consent. The provision does not require the accused to testify, and any evidential burden on them is voluntary; it remains open to them not to give evidence, and to test the prosecution’s case by other means.

I do accept that the effect of the affirmative consent provision may in practice result in an accused, who is intending to claim they mistakenly believed a victim-survivor was consenting, to be compelled to lead evidence that they did or said something to justify that belief, contrary to their right to silence, and leaving them subject to cross-examination. However, I do not consider this to be too burdensome a requirement given the pressing objective it serves. Once such evidence is adduced by an accused (evidence which will often be peculiarly within their knowledge), the burden remains on the prosecution to prove the elements of the offence to the legal standard. Courts in other jurisdictions have generally taken the approach that an evidential onus on an accused does not limit the presumption of innocence. There is legislative precedent for an evidential onus on accused person in Victorian law. For example, section 16 of the Crimes Act, which provides for the offence of causing serious injury intentionally, imposes an evidential burden on an accused person with respect to ‘lawful excuse’. I also note the Queensland Women’s Safety and Justice Taskforce considered that a similar affirmative consent deeming provision was not too onerous and constituted a justifiable limit on the human rights of an accused.

The relationship between the limitation and its purpose

The consent reform provisions of the Bill and the associated potential limitation on the right to the presumption of innocence and the right against self-incrimination under sections 25(1) and (2)(k) of the Charter, is directly connected to the purpose of the provisions. This purpose is to legislate a strong affirmative consent model for sexual offences that focusses on the actions of an accused, rather than those of the victim-survivor.

Availability of less restrictive means

In my view there are no less restrictive means available to achieve affirmative consent and make the new fault element in respect of reasonable belief in consent clear and robust. The reforms have been the subject of significant consultation to ensure they reflect community attitudes about sexual relationships and the broad range of contexts in which sexual activity can occur. The VLRC received 71 written submissions and conducted 99 consultation sessions across a range of issues, including consent. The Department of Justice and Community Safety has conducted an additional 40 consultation sessions with over 120 different stakeholders specifically on the consent reforms, including with victim-survivor groups, advocates, and legal stakeholders and service providers.

The requirement for an accused to say or do anything to ascertain consent is the clearest and simplest method for objectively establishing whether there is in fact a reasonable belief in consent on the part of an accused. The requirement to merely say or do anything maintains flexibility as to the steps an accused may take in the relevant circumstances.

I consider alternative means that might place fewer restrictions on the rights of an accused would leave open the possibility that an accused can maintain a reasonable belief in consent, despite not have taken any steps to ascertain such consent. This runs counter to the central tenet of these reforms, which is that consent cannot be assumed. It will not reflect community expectations and be insufficient in shifting the focus of onto the behaviour of the accused.

The amendments do provide exceptions to prevent disadvantage to persons with cognitive impairment and mental illness, which I discuss further below. As such, I am satisfied that new section 36A(2) is compatible with the Charter, in that, although it may limit rights in the Charter, those limits are moderate and reasonably justified to achieve a critically important aim.

Cognitive impairment or mental illness exception (New section 36A(3) and (4))

New section 36A(3) and (4) require an accused to prove, on the balance of probabilities, that they have a cognitive impairment or mental illness that was a substantial cause of their failing to say or do anything to ascertain consent.

By creating an exception, these provisions place a legal burden on the accused, in that they require the accused to prove they have a cognitive impairment or mental illness and that it was a substantial cause of them not saying or doing anything to ascertain consent. As the provision only places the burden on the accused to establish an exception, and does not transfer to the accused the legal burden of proof to establish the elements of the relevant sexual offence, I do not consider that the right limits the presumption of innocence under section 25(1) of the Charter.

In the alternative, if this provision is considered to limit the right of an accused, I am satisfied that this limit is reasonably justified under section 7(2) of the Charter. This provision ultimately serves an important protective purpose of ensuring that persons with a cognitive impairment or mental illness are not disadvantaged by the requirement to say or do anything to ascertain consent, in circumstances where they are unable to meet this requirement due to the impact of their illness or impairment. This seeks to avoid the criminalisation of persons with a cognitive impairment or mental illness, groups that are already overrepresented in the criminal justice system. In doing so, this promotes the right to equality under section 8 of the Charter, as discussed above.

While imposing a legal burden, as opposed to an evidentiary burden, is more onerous to an accused, I consider it appropriate in this circumstance. The subject matter which the accused must prove is one peculiarly within their knowledge and within their capability to adduce supporting medical evidence. An evidential onus would be too easily discharged and then require the prosecution to prove an absence of a cognitive impairment or mental illness beyond reasonable doubt, where the required evidence to do so would not be readily available or ascertainable by the prosecution. This would in turn risk obstructing the overall aims of the Bill to strengthen consent provisions. I note that this burden is also consistent with the burden on an accused to establish existing defences at law, such as the defence of mental impairment.

While an accused person will bear the legal burden of proving the matters outlined in section 36A(3), there is no legislative requirement for them to give evidence as to all the events and circumstances surrounding the alleged offence. Their evidence will only need to relate to their condition and its impact on their ability to say or do anything. While this burden can be discharged through adducing medical expert evidence, I accept there may be instances where an accused may need to testify to establish these matters or as part of the expert evidence, and this may engage the right not to be compelled to testify. However, for the reasons above, I consider that there is no less onerous manner in which this protective provision can be provided for without obstructing the overall aims of the Bill.

Accordingly I am satisfied that new section 36A(3) and (4) are compatible with the Charter.

Image Based Sexual Abuse Offences (Part 3)

The Bill will strengthen the justice system’s response to the growing problem of image-based sexual abuse (IBSA) which includes the production or distribution of intimate images without consent, and can include revenge pornography and the production or distribution of digitally altered or manipulated intimate images (also known as ‘deepfakes’).

The Bill will relocate four IBSA offences from the Summary Offences Act 1966 to the Crimes Act, and consolidate them into three new indictable offences triable summarily, each with a maximum penalty of three years imprisonment. This will better reflect the seriousness of this behaviour and remove the 12-month limitation period that applies to commencing proceedings for summary offences. Moving the offences to the Crimes Act, thereby making them indictable, will also give police more powers to investigate these offences, which again better reflects the seriousness and prevalence of this type of offending. Additionally, the Bill improves these provisions e.g. by broadening the definition of an ‘intimate image’ to be more gender diverse.

General promotion of rights

As well as promoting the rights of victim-survivors, and implementing the VLRC recommendations on IBSA offences, this Part of the Bill promotes a number of rights under the Charter, including:

the right to equality (s 8), to be discussed in more detail below;

the right to life (s 9), which encompasses a general obligation on the State to take positive steps to protect life, including by enacting legislation that upholds public welfare and safety. The Bill does this by strengthening the IBSA offences to deter and punish this particularly intrusive and anti-social behaviour, which can affect a victim-survivor’s quality of life. It also does so by providing procedural protections to victims and witnesses when giving evidence in criminal proceedings for an IBSA offence;

the right to privacy and reputation (s 13), which is wide in scope, and includes protecting a person’s interest in the freedom of their personal and social sphere, including their personal development, identity, social relations and psychological integrity, personal security and mental stability, as well as informational privacy such as an individual’s control over their own image. This right is promoted by the strengthening of IBSA laws to better deter and punish the taking and/or sharing of intimate images without consent, and to empower courts to order the disposal of intimate images; and

protection of children (s 17(2)), to be discussed in more detail below.

Equality

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Clause 22 of the Bill inserts a new subdivision (8FAAB) into Division 1 of Part I of the Crimes Actwhich concerns the offences of producing, distributing or threatening to distribute intimate images. New section 53O(d) broadens the definition of ‘intimate image’ to include an image of the breasts of a transgender or intersex person identifying as female. This promotes the right to recognition as a person before the law under section 8(1) of the Charter, by ensuring that transgender and intersex people are included in, and protected by, the legislation. The use of gender inclusive language also promotes the right of every person to enjoy their human rights without discrimination, and to protection from discrimination (sections 8(2)–(3)).

Clause 24 of the Bill amends the definition of ‘sexual offence’ under the Criminal Procedure Act 2009 (CPA) to include the new IBSA offences in the Crimes Act. This promotes the right to equality as it allows complainants and witnesses in proceedings relating to an IBSA offence to access the same procedural protections, such as alternative arrangements for giving evidence, that other sexual offence complainants currently possess.

Rights of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children, and requires states to adopt social, cultural and economic measures to protect children and to foster their development and education. The scope of the right is informed by the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

As noted by the VLRC, children and young people use technology often, so are therefore at considerable risk of falling victim to IBSA offences. Further, IBSA offences are often linked to family violence, cyber-bullying and child sexual offences such as child pornography. The consequences for victim-survivors can be devastating and lifelong, resulting in complex trauma and broader impacts affecting a victim-survivors future employment and other pursuits, social interactions, family, and relationships. Accordingly, I consider that the Bill, in strengthening and emphasising the seriousness of IBSA offences, promotes the protection of children under section 17(2) of the Charter.

Limitation of Rights

The new IBSA offence regime further engages the right to equality (section 8) and the rights of children (section 17) as discussed below, as well as engaging the right to privacy (section 13), the right to freedom of expression (section 15) and property rights (section 20) under the Charter.

Equality

As discussed above, section 8(3) of the Charter protects the right to equality before the law and ensures equal protection of the law without discrimination. Discrimination may be direct or indirect and must be because of a protected attribute.

New section 53V will require the DPP to consent to the prosecution if the accused is under the age of 16 years at the time of the alleged commission of an IBSA offence. This may limit the right to equality on the basis of direct discrimination as persons aged over 16 may be treated unfavourably because of their age, by not benefiting from this additional safeguard prior to prosecution for an IBSA offence.

However, I consider that any limit on the right to equality effected by new section 53V is reasonable and justified in accordance with section 7(2) of the Charter, because the provision is designed to protect children from being criminalised for mistakes made during their development and is the least restrictive means of achieving this legitimate and important aim. The age threshold reflects the greater vulnerability of younger children, as well as the fact that children and young people over the age of 16 have a greater capacity to make choices in relation to issues such as sexual relationships and technology. This is consistent with the recognition in the Convention on the Rights of the Child of the ‘evolving capacities of the child’ and that the level of protection required will differ depending on the age of the child.

Accordingly, I am of the view that new section 53V imposes a reasonable and justified limit on the right to equality under section 8(3), and therefore is compatible with the Charter.

Privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The new IBSA offence regime engages the right to privacy, in that it seeks to regulate and prevent certain private behaviours that could be considered part of someone’s personal identity and social relations, which are both aspects that are protected by the right to privacy under the Charter. However, the right will not be limited if any interference is pursuant to properly prescribed legislation that it sufficiently accessible, predictable and is not unjust or unreasonable. The new IBSA regime is appropriately precise and is proportionate to the aim of protecting members of society from having intimate images produced or distributed without their consent, which in turn would constitute a breach of their right to privacy.

Accordingly, I am of the view that the right to privacy is not limited by the new IBSA offences inserted by clause 22 of the Bill.

Freedom of Expression

The criminalisation of the taking, production and distribution of intimate images and the provision for the disposal of such images (new sections 53W–Z) engages the right to freedom of expression.

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

The purpose of clause 22 and the new IBSA offence regime is to protect the privacy rights of the public, and particularly women and children who may be particularly vulnerable to IBSA, by criminalising and punishing such conduct and deterring future harm being committed. I consider that this falls within the internal qualification of section 15(3) of the Charter, including the protection of the rights and reputations of others, public order and public morality, such that the right to freedom of expression is not limited by clause 22.

Protection of children

The amendments in the Bill are primarily intended to protect victim-survivors including children, however at the same time these offences will apply to children. Due to a child’s evolving capacity and maturity as they age, there is a risk of over criminalising the mistakes and misunderstandings children may make in developing their sexual identities alongside their prolific use of technology.

To appropriately reflect a child’s vulnerability and stage of development, and consistent with recommendation 54(a) of the VLRC report, new section 53V requires the consent of the DPP to commence a prosecution of a child under the age of 16 at the time of the alleged offending. I consider that this measure will ensure that the Bill does not unduly limit the rights of children under section 17(2) of the Charter, by ensuring that prosecutions against children under 16 years of age for the new IBSA offences only proceed with DPP approval.

While this safeguard is not afforded to children over 16 years, this is in line with the approach recommended by the VLRC report. It is also noted that there is no DPP consent requirement for children charged with a current IBSA offence. In addition, existing prosecutorial guidelines will still apply requiring any such prosecution to be in the public interest (taking into consideration the accused’s age). Accordingly, I am satisfied this reform strikes the appropriate balance.

Property

New sections 53W–Z (inserted by clause 22) allow for the court, on application of the DPP or a police officer, to make an intimate image disposal order to effect the destruction of a seized thing (such as a laptop computer) or the removal of an intimate image contained in a seized thing (such as the removal of an intimate image saved on a mobile phone). The Bill also amends the Confiscation Act 1977 in relation to the disposal of an intimate image if a person is convicted of an offence set out in Schedule 1 to that Act. These reforms engage the right to property under the section 20 of the Charter.

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, confined and structured rather than unclear, accessible to the public, and formulated precisely. To the extent that these provisions may result in the deprivation of property, I am of the view that they do not limit the right to property as the deprivation would be accordance with accessible and precise statutory criteria and subject to the oversight of a judicial officer.

Jury directions reforms (Part 4)

Part 5 of the Bill amends the JDA to reform jury directions in trials, particularly sexual offence trials, to assist juries in better assessing the evidence and reaching a verdict. These reforms promote the right to a fair hearing under section 24 of the Charter. They do so by introducing amendments and enhancing existing directions that will make it easier for juries to apply the law, particularly with regard to consent and the determination of a reasonable belief in consent.

For example, the Bill adds new directions to address misconceptions in relation to personal appearance and irrelevant conduct (new section 47G), and non-consensual sexual acts occurring between all sorts of people, such as those who know each other or are in a relationship with each other (new section 47H). These new directions reflect extensive research on common misconceptions about sexual offence victim-survivors, as discussed in the VLRC report.

Clause 51 amends section 51(1)(c) of the JDAto prohibit additional statements in respect of the credibility of complainants who provide commercial sexual service or, have a particular sexual orientation or gender identity. This promotes the right to equality under the Charter (section 8) by seeking to prevent unfavourable treatment on the basis of a protected attribute (such as gender identity), as well as the rights of victim-survivors in the criminal process more generally.

Clause 56 inserts new Divisions 4 and 5 into Part 5 of the JDA. Division 4 requires a judge, if appropriate, to give directions regarding the continuation of a relationship between the accused and the complainant after the alleged sexual offence. New Division 5 requires a trial judge to give a direction on the complainant’s distress or emotion while giving evidence, unless there are good reasons for not giving the direction. This will guard against a jury making incorrect assumptions as to these issues, promoting victim-survivors’ rights and achieving fairer outcomes in proceedings for sexual offences. Again, these new directions reflect extensive research on common misconceptions about sexual offence victim-survivors, as discussed by the VLRC.

Clause 57 of the Bill requires a trial judge to give the jury an explanation of the phrase ‘proof beyond reasonable doubt’ unless there are good reasons for not doing so, having regard to any submissions from parties. Currently, such a direction may only be given in response to a question from the jury. I am of the view that this promotes an accused’s fair hearing rights and rights in criminal proceedings (particularly the presumption of innocence) under sections 24 and 25 of the Charter respectively.

Limitation of Rights

Retrospective criminal laws

Given new Division 1A (inserted by clause 48), which relates to directions regarding consent and reasonable belief in consent, is applicable to offences before, on or after 1 July 2015, clause 48 may engage the right against retrospective criminal laws under section 27 of the Charter. The transitional provisions inserted by clauses 92 (new section 638 of the Crimes Act 1958), and clause 95 (new clause 6 to Schedule 1 of the JDA)also apply some of the amendments to proceedings where the offences may have been committed prior to the commencement of the new provisions.

As above, section 27(1) of the Charter provides that a person must not be found guilty of a criminal offence because of conduct that was not an offence at the time the conduct was engaged in. Accordingly, while section 27 prohibits the imposition of criminal liability where previously there was none, it does not prohibit retroactivity in respect of procedural laws. This includes changes to the rules of evidence or other procedural elements such as, in this case, the content of jury directions, given they relate to how the trial is conducted, and do not themselves impose criminal liability. This is consistent with the operation of the equivalent provision of the International Covenant on Civil and Political Rights, whereby article 15(1) does not extend to changes in procedural law. This also reflects the statutory interpretation principle that the presumption against retrospectivity does not extend to laws that are merely procedural.

Accordingly, I am of the view that Part 5 of the Bill, and in particular clause 48, does not limit the right against retrospective criminal laws under section 27 of the Charter.

Ground rules hearings and cross-examination—(Part 5)

Part 5 of the Bill enacts various amendments to the CPA to improve the experience of complainants and other vulnerable witnesses in giving evidence in sexual offence proceedings.

Uncertainty about time when sexual offence occurred

Division 1 of Part 5 of the Bill seeks to address the difficulties that the prosecution faces when new sexual offences are introduced, and the laws do not explain how the prosecution should proceed when they cannot establish whether the alleged conduct occurred before or after the commencement of the new offences.

Clause 60 of the Bill inserts new section 7B into the CPA, which provides a substantive, interpretive provision to address these problems. New section 7B applies when conduct is alleged to have occurred at some time during a period; the conduct, if proven, would constitute a sexual offence at all times during that period; there is uncertainty as to when, during that period, the conduct allegedly occurred; and because of a change in the law during that period, the conduct, if proven, would constitute one sexual offence before the change and a different sexual offence after the change. It applies to any sexual offence as defined in section 4 of the CPA.

This provision implements recommendation 56 of the VLRC report. The VLRC found it unacceptable that a technical gap in the law has led to cases being discontinued, or charges not being filed, and people falling through the gaps of the laws designed to protect them.

As well as promoting the rights of complainants, the new provision also promotes the protection of children under section 17(2) of the Charter, which includes a positive duty on the state to provide measures to protect children and recognises their particular vulnerability. This is because uncertainty about when alleged offending occurred is a particular feature of historical child sexual abuse.

Limitation of Rights

While this provision will promote the rights of victim-survivors, it has implications for the criminal process rights of an accused, including their right to a fair hearing (section 24) and to protection from retrospective criminal laws (section 27).

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The Charter right under section 24(1) is in essence the right of an accused to know the prosecution case against them so that they can respond to that case. I am of the view that new section 7B does not limit the right to a fair trial under the Charter. The prosecution will still be required to inform the accused of their case, and to prove the elements of the offence to the criminal standard, including the particulars of the period in which the alleged conduct is said to have occurred. I consider that these particulars will enable an accused person to meet the case made against them. Further, the right to be informed of the particulars of a charge only extends to particulars that are available. Where the evidence does not enable the prosecution to provide more particularity, as is often the case with charges involving sexual offending over a period of time, the right is not considered to be engaged.

To the extent that this right may be limited by new section 7B, I consider that any limitation is reasonable and justified under s 7(2) of the Charter. This is because it is the least restrictive means of achieving the important and pressing aim, as identified by the VLRC, of addressing the obstacles to prosecuting a person for alleged sexual offending spanning a period of time where there has simply been a change in the laws. Importantly, it will ensure that prosecutions are not discontinued or not pursued for alleged criminal offending simply due to a technicality. Ultimately, this should result in fairer outcomes in the criminal justice system.

Retrospective criminal laws

Section 27(1) of the Charter provides a person must not be found guilty of a criminal offence because of conduct that was not an offence at the time the conduct was engaged in. Subsection 27(2) further provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty applied to the offence when it was committed.

New section 7B expressly provides that the provision relates to any ‘sexual offence’, which is defined in section 4 of the CPA and includes historical conduct. Accordingly, section 27 of the Charter may be engaged.

However, the new section does not, in my view, retrospectively impose criminal liability for conduct that was not criminal at the time it was committed. New section 7B(1)(b) specifically states that for the provision to apply, the conduct, if proven, would have to constitute a sexual offence at all times during the period that the conduct is alleged to have occurred. The provision provides a mechanism by which a prosecution can proceed in these very specific circumstances.

New section 7B(2) provides that, where the circumstances in subsection (1) are met, a person may only be charged with whichever of those sexual offences has the lowest maximum penalty; or if both of the sexual offences have the same maximum penalty, the offence that the conduct, if proven, would have constituted before the change. This ensures that an accused will not be disadvantaged in relation to maximum penalties due to the operation of the provision.

Accordingly, I am satisfied that new section 7B does not limit the right against retrospective criminal laws under section 27(1) or (2) of the Charter. However, to the extent that this right may be limited, such limitation is justified and proportionate to achieving the purpose of the provisions; namely to effectively charge and prosecute alleged instances of sexual offending, which have been difficult to prosecute where these very specific circumstances arise.

Cross-examination

Clause 62 introduces the concept of ‘specified witness’ into section 124(5) of the CPA, which is defined as a child, a person with a cognitive impairment or a complainant in relation to a charge for a sexual or family violence offence. In considering whether to grant leave to cross-examine a ‘specified witness’ in a committal hearing, the court will be required to have regard to certain additional factors, such as minimising trauma to the witness, an additional protection which currently only applies to child witnesses.

Clause 63 inserts new section 124A, which requires the Magistrates’ Court to give reasons for granting leave to cross-examine a witness at a committal hearing, including stating the reasons for granting leave and identifying each issue on which the witness may be cross-examined. This aims to improve the application of the test for granting leave and to therefore minimise the unnecessary exposure of vulnerable witnesses to cross-examination in committal proceedings.

Clause 66 amends section 198A of the CPA, to reflect that the considerations in section 124(5) must be applied to a ‘specified witness’, not only child witnesses, when determining whether cross-examination is to be ordered pre-trial under section 198A.

These amendments promote the rights of sexual offence complainants, as well as protecting children and persons with cognitive impairment from unnecessarily being exposed to the trauma of cross-examination in pre-trial proceedings.

Ground rules hearings

Clause 69 of the Bill provides that ground rules hearings are to consider the communication, support or other needs of witnesses and to decide how the proceeding is to be conducted to fairly and effectively meet those needs, and that ground rules hearing must be held if the witness is a complainant in relation to a sexual offence charge.

These amendments expressly promote the rights of complainants in relation to sexual offence charges. They seek to ensure that questioning is fair and appropriate, and that these complainants are supported to give their best evidence.

Limitation of Rights

Fair hearing and rights in criminal proceedings

Expanding the application of protections for the cross-examination of witnesses, including potentially prohibiting their cross-examination in pre-trial proceedings, will necessarily limit the rights to fair hearing (section 24) and rights in criminal proceedings (section 25).

The nature of the right

As outlined above, the right to a fair hearing encompasses the right to have a charge determined by a competent, independent and impartial court or tribunal after a fair and public hearing. The requirement for a fair and public hearing includes the principle of equality of arms, and the right of an accused person to obtain the attendance of, and examine, witnesses under the same conditions as the prosecution. This right is expressly provided for in section 25(2)(g) of the Charter, which guarantees an accused’s right to ‘examine, or have examined, witnesses against him or her, unless otherwise provided for by law.’

Importance of the purpose of the limitation

The purpose of the limitation on cross-examination through the requirement to seek leave to cross-examine, and via the broader imposition of ground rules hearings that may limit the subject matter and style of cross-examination, is to protect complainants in sexual offence proceedings from unnecessarily stressful or intimidating questioning, and irrelevant questioning.

The nature and extent of the limitation

Any limitation on cross-examination of witnesses occasioned by Part 5 of the Bill would be ‘provided for by law’ and therefore would not interfere with the express right to examine witnesses at section 25(2)(g). In relation to the broader impact on fair hearing rights under section 24, the broadening of the application of protective factors in the test for leave to cross-examine under sections 124(4) and (5) (as amended) does not equate to a blanket prohibition on cross-examination. The accused may still make submissions as to why cross-examination should be allowed, and the court must have regard to factors such as whether the prosecution case is adequately disclosed, the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged, that a fair trial will take place if a prosecution proceeds (including that the accused is able to adequately prepare and present a defence), and that the interests of justice are otherwise served.

The mandating of ground rules hearings for complainants in relation to sexual offence charges means that the style, parameters, and content of questioning for these complainants must be discussed by counsel for the prosecution, counsel for the defence and the judicial officer, prior to the complainant giving evidence. Following that discussion, the court will set ‘ground rules’. Both prosecution and defence are limited to examining the witness on the same topics, although the accused is limited in the manner and extent to which they may cross-examine the witness. The judge may make various directions, including to exclude the rule in Browne v Dunn that contradictory evidence must normally be put to a witness in cross-examination, although this may not result in any disadvantage to an accused, as they may still include such evidence as part of their defence.

Relationship between the limitation and purpose

The limits occasioned by Part 5 of the Bill are rationally connected to the purpose of minimising the traumatisation of complainants and certain witnesses in sexual offences proceedings in relation to giving evidence.

Furthermore, any limits on cross-examination imposed through ground rules hearings may assist in eliciting relevant and clear responses from sexual offence complainants at trial, thereby helping to establish the facts of a case and promoting fair and efficient hearings.

Availability of less restrictive means

In my view, Part 5 of the Bill enacts the relevant reforms via the least restrictive means; there is no blanket ban on cross-examination and no set rules in respect of how a witness’ evidence is taken following a ground rules hearing—these being agreed between the parties and the judge at the ground rules hearing. The accused has the opportunity to seek leave to cross examine and to make submissions with respect to the topics they would like to cross-examine a witness on in a ground rules hearing.

Accordingly, I am of the view there are no less restrictive means available to achieve the purpose of the reforms, which implement the recommendations of the VLRC report with respect to the treatment of sexual offences complainants in the criminal process.

I am therefore satisfied that Part 5 of the Bill in respect of ground rules hearings and cross-examination is compatible with sections 24 and 25 of the Charter.

Retrospective Criminal Laws

Clause 93 inserts section 462 into the CPA, with subsections (2) and (3) stipulating that the Bill’s changes to committal proceedings only apply to proceedings to which no committal mention hearing or committal hearing has been held prior to the commencement of the new provisions. Accordingly, the new changes will apply to some committal proceedings for offences allegedly committed before the provisions commenced. Similarly, new section 462 also provides that the amendments to section 198A of the CPA (regarding cross-examination) applies to criminal proceedings that have not commenced at the time Part 5 commences.

Section 27(1) of the Charter prohibits a person from being found guilty of a criminal offence because of conduct that was not an offence at the time the conduct was engaged in. However, as discussed above, the right does not extend to procedural changes that govern how a trial is conducted. Given Part 5 does not impose criminal liability for conduct that was previously not unlawful, and relates to procedural aspects of how a trial is conducted, I am satisfied that the right against retrospective criminal proceedings is not limited by this Part.

Confidential communications and protected health information (Part 6)

Part 6 of the Bill amends Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 (EMPA) which prohibits the production and admissibility of confidential communications in a sexual offence proceeding without leave of the Court. The Bill makes two main reforms to the scheme for the purposes of criminal proceedings only:

expanding the confidential communications scheme to include protected health information; and

strengthening the procedural protections in applications for leave to compel, produce or adduce a confidential communication and/or protected health information, including giving complainants a right to appear, requiring them to be notified of an application and advised of specified matters, and allowing them to submit a confidential statement to the court.

The Bill stipulates that protected health information will only be part of the scheme in respect of criminal proceedings, and defines protected health information as health information about a person against whom a sexual offence has been or is alleged to have been committed, and the health information (including an opinion) was recorded, collected or formed by a person in a professional capacity.

The strengthened procedural protections include requiring the prosecuting party to ensure notice is given to a protected person in criminal proceedings of such an application and that the protected person is given specified information, including that they may:

appear in the proceeding and make submissions;

wish to consider obtaining legal advice; and

provide a confidential statement (see new section 32CE).

The confidential statement will allow the complainant to describe the harm that is likely to be caused to them if the application is granted. Subsections 32CE(3)–(4) require that the court not disclose the confidential statement unless it considers that it is in the interests of justice to do so.

General promotion of rights

The effect of this expansion of the confidential communication scheme is to protect a broad category of documents and information from disclosure in criminal proceedings; namely protected health information. More generally, the purpose of the amendments is to better protect the right to privacy of sexual offence complainants in respect of sensitive health-related information. New section 32CE, in allowing protected persons to provide the court with a confidential statement in criminal proceedings, also aims to protect and promote the rights of victim-survivors and to ensure their views are taken into consideration by a court in deciding to grant leave for production or the admission of that information. These reforms implement recommendations made by the VLRC in respect of the rights of complainants of sexual offences in the criminal process.

Limitation of rights

However, the imposition of barriers to production and admissibility of potentially relevant documents and evidence in criminal proceedings, in respect of both the protected health information and the confidential statement by protected persons, engages the rights to fair hearing (section 24) and rights in criminal proceedings (section 25).

Right to fair hearing (s 24) and criminal proceedings rights (s 25)

As discussed above, the right to a fair and public hearing under section 24 of the Charter encompasses the right for each party to have a reasonable opportunity to present its case, and this includes being informed of the opposing party’s case and to respond.

This in turn overlaps with the section 25 of the Charter, including:

section 25(2)(b), which provides that an accused has the right to adequate time and facilities to prepare one’s defence; and

section 25(2)(g), which provides that an accused has the right to examine witnesses against them, unless provided for by law.

I am of the view that any limits on the disclosure of material upon which an accused might then use in cross-examination of prosecution witnesses would not limit these rights, as any interference with section 25 is in accordance with provisions that are precise and accessible.

As these provisions may have the effect of limiting the disclosure or admissibility of evidence that may be relevant to a criminal proceeding, and which may adversely impact the accused’s defence in that proceeding, Part 6 of the Bill may impose a limit on the right to a fair hearing under sections 24 of the Charter.

The nature of the right

The Supreme Court has recognised that the right to a fair hearing under s 24 of the Charter incorporates the right of an accused person to know the case which the prosecution seeks to advance at trial and to seek information and documents from the prosecution as well as any exculpatory material.

Bound up in the fair hearing right is the duty of prosecutors to disclose relevant material to an accused in criminal proceedings that may assist in their defence, as well as through the subpoena process in seeking relevant information from non-parties.

However, the High Court has acknowledged that, in some circumstances, the requirements of procedural fairness may be qualified to protect important countervailing interests, including the protection of the privacy rights of sexual offence complainants.

Importance of the purpose of the limitation

As foreshadowed above, the purpose of the expansion of the confidential communications scheme, to include protected health information and to allow protected persons (that is sexual offence complainants) to provide confidential statements to the court to describe the harm that is likely to be caused if the application is granted, is to protect the privacy rights of these persons, and to ensure that complainants’ views are taken into account before such documents are disclosed or evidence is adduced.

The VLRC (in both its 2021 report and 2016 report on The Role of Victims of Crime in the Criminal Trial Process) highlights how criminal proceedings can be traumatising for complainants, particularly in the context of the intrusion of privacy occasioned by the subpoenaing and subsequent admission into evidence of their private medical records, which are often then used to undermine their credibility. The VLRC considered that the confidential communication scheme is not functioning in practice as intended, with victim-survivors rarely able to resist a subpoena despite the statutory protections, and often remaining unaware that an application under current section 32C is even on foot.

The Part 6 reforms are consistent with the VLRC’s recommendations that a broader range of health records be protected from production and admission into evidence and the need for complainants to have the opportunity to participate in the decision making about their confidential records.

The nature and extent of the limitation

The right to a fair hearing is context dependent, but ultimately would be infringed where the provisions would lead to a ‘substantial disadvantage’ for an accused in preparing their defence for a criminal proceeding.

Protected health information

In respect of the prohibition from production or admission of protected health information, this could include, for example, material such as hospital notes pertaining to a contemporaneous hospital admission which might contain inculpatory or exculpatory evidence (such as evidence of the complainant’s physical injuries), and might have more probative value than just the records of a doctor or counsellor taken during a consult for treatment of a victim-survivor’s mental health injuries resulting from an alleged offence.

While there is a risk that an accused might be prohibited from accessing information that could assist their case, the confidential communication and protected health information scheme (as amended) contains a significant safeguard in section 32C of EMPA, which allows an accused to seek the leave of the court for the production and/or admission of such evidence. The court must consider several factors in section 32D of EMPA (as amended) including whether the evidence has substantive probative value, and whether the public interest in preserving the confidentiality of the information is substantially outweighed by the public interest in admitting into evidence, evidence of substantial probative value. The court’s discretion in this regard, and the public interest balancing exercise it must undertake in considering an application under section 32C, affords considerable protection to the fair hearing rights of an accused. Further, the court must, in making a decision to grant leave under section 32C, apply and give effect to relevant Charter rights, including the right to fair hearing.

There are also additional safeguards in section 32E of the EMPA, which specifies that Division 2A of Part II EMPA will not prevent the production or adducing of protected evidence in certain circumstances, including for example with consent of the complainant or if the protected evidence was made or prepared for the purpose of a legal proceeding arising from the commission or alleged commission of the sexual offence.

Confidential statement

Despite its limited scope, a confidential statement from a complainant describing the harm that is likely to be caused by the grant of leave might also contain information that is relevant to an accused’s defence at trial. The inclusion of the ‘interests of justice’ exception will allow for disclosure of the confidential statement to the accused in limited circumstances and will require the court to consider the interests of the parties and larger questions of legal principle, such as the public interest and policy considerations. This will safeguard the accused’s right to a fair trial.

The relationship between the limitation and its purpose

The reforms in Part 6 of the Bill and the associated interference with fair hearing rights under section 24 of the Charter are rationally connected to the legislative purpose of protecting the privacy of sexual offence complainants, and minimising the harmful effects of criminal proceedings upon them.

Availability of less restrictive means

This Part seeks to protect and promote the right to privacy of sexual offence complainants, and to improve their experiences of the criminal justice process and justice outcomes more generally. This is effected by the Bill protecting a broader range of health information from production and use in criminal proceedings, and by giving complainants the right to be heard in decisions regarding the use of their sensitive material, including by provision of a confidential statement

I am of the view there are no less restrictive means available to achieve these important aims, given an accused may still seek leave to compel, produce or adduce the protected evidence and the court may disclose a confidential statement if it is in the interests of justice. This is the best way to balance the rights of complainants with the rights of the accused in criminal proceedings.

Accordingly, I am satisfied that Part 6 of the Bill is compatible to the right to fair hearing under the Charter.

Retrospective criminal proceedings

Clause 94 of the Bill provides that that amendments to Division 2A of Part II of EMPA apply to a proceeding irrespective of when the proceeding commenced, except where an application for leave under section 32C is already ongoing and has not been determined. While this would appear to give the changes to the confidential communications regime retroactive effect, there is a carve out; no information constitutes protected health information where the proceeding commenced prior to the amendments to EMPA taking effect.

The effect of these transitional provisions is that the EMPA reforms could apply to a proceeding for an offence alleged to have been committed prior to the provisions commencing. I am, however, satisfied that section 27 of the Charter—the right against retrospective criminal laws—is not limited, because the provisions do not retrospectively criminalise behaviour that was not previously unlawful, relating instead to procedural changes regarding the laws of evidence, which fall outside of the scope of the right.

Extension of temporary measures (Part 7)

Amendment of Court Security Act 1980

The Bill amends the Court Security Act 1980 (CSA) to extend the operation of temporary provisions that give courts and tribunals the ability to effectively manage their premises in response to the COVID-19 pandemic.

Right to life

The CSA amendments promote the right to life as the purpose is to ensure that courts and tribunals have the necessary powers to respond to the risks posed by the COVID-19 pandemic. These powers include restricting physical access to the court or giving reasonable directions for the health of persons at the premises. This will ensure that courts and tribunals can respond adequately and in-line with relevant public health advice. These measures protect the health of persons at the premises by minimising the potential of COVID-19 transmission, and thereby promote the right to life.

Right to freedom of movement and right to fair hearing

These amendments engage sections 12 and 24 of the Charter by clarifying that authorized officers may refuse a person access to, or to remove a person from, the court or tribunal premises. Refusing access may be seen as restricting access to a public hearing, thereby impinging on the right to a fair hearing and the principle of open justice. Further, refusing access may also prevent a person from attending their own hearing, thereby potentially restricting their right to a fair hearing.

However, the temporary provisions provide that authorised officers can only exercise these powers to protect the health of persons at court and tribunal premises during the COVID-19 pandemic, or to follow the relevant pandemic orders or public health directions in relation to COVID-19. In addition, the amendments aim to promote the right to life, by ensuring that persons who may present a health risk do not compromise the health of staff and other court users. Further, courts and tribunals currently have alternative measures in place to facilitate virtual hearings, which is likely to minimise the potential impacts of a person being refused physical access to court premises. Accordingly, any impact the right to freedom of movement and right to a fair hearing is reasonable and justified by the underlying intention to protect the right to life and to minimise disruption to the administration of justice by courts and tribunals.

Right to freedom of expression

These amendments engage section 15 of the Charter by clarifying that authorized officers can exercise their power to give reasonable directions for the health of persons on court or tribunal premises during the ongoing COVID-19 pandemic. As the forms of protected expression are broad, some directions (such as requiring a person to wear a face mask) may be seen to impinge on a person’s right to freedom of expression. However, the Charter provides that the right can be subject to lawful restrictions, including for the protection of public health. Any impacts on the right to freedom of expression are justified as they are reasonably necessary for the protection of public health while the effects of the COVID-19 pandemic are ongoing.

Amendment of Open Courts Act 2013

The Bill amends the Open Courts Act 2013 (OCA) to extend the temporary provision which clarifies that providing remote public access to proceedings (through contemporaneous audio or audio-visual broadcast or by subsequently providing an audio recording or transcript) does not contravene any rule of law relating to open justice, and to clarify that the provision applies if the remote method of access is in the interests of justice.

Right to life

The OCA amendments promote the right to life by enabling courts and tribunals to continue to limit the ongoing risk of COVID-19 transmission to judicial officers, staff and the community, during the administration of justice. The amendments provide for continuing clarity about the ability of courts and tribunals to provide public access to proceedings remotely, ensuring that the administration of justice continues while balancing the public health risks associated with physically open courtrooms.

Right to a fair hearing

The OCA amendments engage this right as the right to a public hearing may be limited where remote public access to proceedings is provided (such as when livestreaming proceedings).

The Bill contains safeguards to ensure that the right to a fair hearing is not unduly limited.

The amendment relating to providing audio or audio-visual broadcasts, audio or audio-visual recordings or transcripts, is temporary. This provides clarity on access arrangements used in place of physically open courtrooms, for a defined period, to limit the risk of COVID- 19 transmission when the pandemic is likely to have ongoing implications, and to enable courts and tribunals to efficiently manage the backlog of cases.

Further, the new ‘interests of justice’ requirement confirms the legislative intent that courts’ and tribunals’ discretion to provide remote access must be exercised compatibly with the Charter.

Any restriction of the right to a fair hearing is reasonably necessary and justified by the need to protect the right to life and to continue the administration of justice during the ongoing COVID-19 pandemic, and to enable courts and tribunals to efficiently manage the backlog of cases.

Right to freedom of expression

The right to freedom of expression includes the freedom to seek, receive and impart information about public and political issues (section 15 (2)). Part 15 engages this right as courtrooms may not be physically open where digital technology is used to provide public access to proceedings. This may impact the ability of the media and the public to seek and obtain information by physically attending court.

There are safeguards to ensure that this right is not unduly limited. The provision is temporary and, as noted above, the new ‘interests of justice’ requirement enhances Charter compatibility by confirming the legislative intent that courts’ and tribunals’ discretion to provide remote access must be exercised compatibly with the Charter.

This right may be subject to lawful restrictions reasonably necessary to protect public health (section 15(3)). The provision will protect judicial officers, court staff and the community from undue exposure to the ongoing risk of COVID-19 transmission during the pandemic, and enable courts and tribunals to efficiently manage the backlog of cases. To the extent that this right is limited, these amendments are lawful as they are reasonably necessary to protect public health.

Other rights

These amendments may also engage the right to freedom of movement (section 12), peaceful assembly and freedom of association (section 16) and rights in criminal proceedings (section 25).

To the extent the OCA amendments limit any of these rights, I consider the limitations to be necessary, justified and proportionate for the reasons outlined above.

Hon. Sonya Kilkenny MP

Minister for Corrections

Minister for Youth Justice

Minister for Victim Support

Minister for Fishing and Boating

Second reading

Ms KILKENNY (Carrum—Minister for Corrections, Minister for Youth Justice, Minister for Victim Support, Minister for Fishing and Boating) (10:14): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Sexual violence remains a prevalent social, criminal, and human rights issue in Victoria. It affects community safety, particularly the safety of women and children, and causes long-term, serious harm to victim-survivors. Conviction rates for sexual offences remain unacceptably low. Only 1 in 23 rape cases that are reported result in a conviction. The time for change is now. In the wake of reform in other jurisdictions, and strong and powerful advocacy for sexual offence reform from brave women such as Saxon Mullins, Grace Tame and Brittany Higgins, we must act decisively to protect the community from sexual violence and ensure the criminal justice system can respond effectively to these abhorrent crimes.

The reforms in this Bill will deliver critical improvements to the way in which justice is delivered for those who are the victim of sexual violence. It will strengthen our sexual offence laws, provide additional protections for victim-survivors, and ensure that those who perpetrate sexual abuse are held to account for their actions. In particular, it will deliver on the Government’s commitment to introduce legislation to deliver affirmative consent laws and make it explicit that stealthing is a crime.

These reforms represent the first stage of the Victorian Government’s legislative response to the Victorian Law Reform Commission’s 2021 Improving the Justice System Response to Sexual Offences report, which contains 91 recommendations to improve the way the justice system responds to sexual offences.

This Bill marks the beginning, rather than the end, of a reform journey. The Government acknowledges there is more work to be done and commits to continuing this reform process in consultation with victim-survivors, victim-survivor advocates and key stakeholders.

Affirmative consent and non consensual non-use, removal or tampering of a condom

Part 2 of the Bill will reform the consent and reasonable belief in consent provisions in the Crimes Act 1958 to introduce an affirmative model of consent. This will implement recommendations 50 and 51 of the VLRC report.

In some sexual offences, including rape and sexual assault, the prosecution must prove that the physical act occurred without consent and that the accused person did not have a reasonable belief that the complainant consented. The definition of consent and how this concept is understood and applied by juries is therefore of critical importance, as it is the presence or absence of consent and a reasonable belief in consent that turns a lawful sexual act into a serious criminal offence.

While there have been significant efforts to reform Victoria’s consent provisions, most recently in 2014 and 2016, research shows that sexual offence laws are often misunderstood, and rape myths and stereotypes, including narratives of ‘implied consent’, still feature heavily in trials. In its report, the VLRC said that Victoria’s consent provisions are strong, but there is room for improvement. The Bill will strengthen the consent provisions to ensure our laws around sexual offences and consent are clearly defined, reflect modern standards and community expectations, and can be appropriately and fairly prosecuted.

In response to the VLRC’s report, the Victorian Government committed to adopting an affirmative consent model and amending the law to make it clear that the conduct colloquially known as ‘stealthing’—that is, the non-use, removal of or tampering with a condom without consent—is a crime. Similar reforms have recently been introduced in New South Wales and the Australian Capital Territory and are being considered in other jurisdictions. Many features of the Bill align with these reforms, which will help us collectively move towards a more consistent national approach in this important area of law.

Under an affirmative consent model, consent must be actively and positively expressed, not assumed. The people involved in the sexual act are required to take steps to make sure that the other person, or people involved, are consenting. An affirmative consent model will put greater scrutiny in trials on the actions that the accused person took to obtain consent and move away from reliance on preconceived ideas and outdated notions highlighted by the VLRC report. In a trial, it shouldn’t be a matter of just “what did the victim-survivor do to say no?”, but more importantly “what did the accused person do to make sure the other party was consenting, both before and during the sexual act?”

The reforms have been the subject of significant consultation to ensure they reflect community attitudes about sexual relationships and the broad range of contexts in which sexual activity can occur. The VLRC received 71 written submissions and conducted 99 consultation sessions across a range of issues, including consent. The Department of Justice and Community Safety has conducted an additional 40 consultation sessions with over 120 different stakeholders specifically on the consent reforms, including with victim-survivor groups, advocates and legal stakeholders and service providers. I want to sincerely thank all stakeholders who have been involved in this process for sharing your lived experiences and considered views, and for being instrumental in shaping these important reforms.

Put simply, the Bill makes it clear when there is consent, when there is no consent and what is required of a person to make sure there is consent. The requirements of the Bill are not onerous and will not interfere with consensual activity. Strong laws around sexual offending and consent are vital to ensuring it is clear what we as a community expect of people engaging in sexual acts and relationships. The Bill promotes healthy sexual relationships that are based on the principles of mutual respect and bodily autonomy.

Definition of consent

The Bill makes a series of reforms relating to the meaning of consent. Collectively, these provisions provide a holistic understanding of sexual violence and the role consent plays in sexual relationships.

The Bill will update the definition of consent in section 36 of the Crimes Act to ‘free and voluntary agreement’ which promotes consistency with the definition of consent in most jurisdictions. The word ‘voluntary’ makes clear that agreement cannot be obtained through coercion, threats or other inappropriate means, and will reinforce that involuntary bodily reactions are not an indication of consent.

Two new provisions will be added to section 36 that will provide further qualification to the definition of consent and make it clear that consent can never be assumed.

First, the Bill provides that a person does not consent to an act just because they do not resist the act verbally or physically. We know freezing is a common response to sexual violence. Basing a lack of consent on the amount of resistance offered rather than a lack of positively communicated consent is outdated and has long since been replaced by communicative standards in Victorian legislation.

Second, the Bill makes it clear that a person does not consent just because of previous sexual behaviour. Consent is required for each separate sexual act and cannot be assumed just because a person has previously consented to the same act or a different act with the same person, or the same act or a different act with a different person. No one is obliged to say ‘yes’ just because they have said ‘yes’ before. The new provisions will help to overcome pervasive rape myths and stereotypes that the research has shown still impact assessments of consent.

The Bill also inserts a new objective to apply across sexual offence provisions and which the court must have regard to as part of the definition of consent. The new objective promotes the principle that consent to an act is not to be assumed and that consent involves ongoing and mutual communication and decision making between each person involved. That is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent. This additional objective will reinforce two critical points in relation to consent. First, that assumptions have no place in consent or sexual offence trials—consent can only be based on a person’s clear communication of their willingness to engage in the act. Second, that sexual acts and relationships require reciprocated agreement between the people involved in the act—consent isn’t just one conversation before an act, but an ongoing one throughout the act.

Circumstances where there is no consent

In addition to defining what consent means, the Crimes Act already sets out circumstances where there is no consent. These are known as consent vitiating circumstances, and support decision-making in sexual offence cases by highlighting instances where a person does not consent, such as due to the inappropriate actions of the accused (e.g. where force or threats are used to make the person submit) or because they were incapable of consenting in the circumstances (e.g. because they were asleep or unconscious).

The Bill will introduce a new provision which re-enacts and builds upon the existing consent vitiating circumstances. Separating these circumstances from the definition of consent in section 36 will make it clear what consent is and what it is not. The list of circumstances has also been re-ordered to ensure the existing concept that a person does not consent if they do not say or do anything to indicate consent is more prominent. This principle is central to the communicative model of consent and reinforces that silence or ‘freezing’ is not consent.

The Bill will add five new circumstances where there is no consent. These will address cases where a person submits to or engages in the sexual act due to:

force, harm or fear of force or harm of any kind

coercion or intimidation

abuse of a relationship of authority or trust

false or misleading representations about payment for commercial sexual services

agreement that a condom will be used, when in fact it is not used, removed or tampered with (known as ‘stealthing’).

Force, harm, fear of force or harm

The Bill makes clear that there is no consent if a person submits because of force, fear of force, harm of any type, and fear of harm of any type. This combines and strengthens the consent vitiating circumstances currently outlined in section 36(2)(a) and (b). This new provision makes clear what may be a type of harm, and when and how it may occur.

Harm is not just physical. It can include psychological and economic or financial harm and subtle emotional manipulation. These varied types of harm are particularly apparent in situations of family violence, where perpetrators may use coercive and controlling behaviours over an extended period of time. However, they are not exclusive to family violence, and may be a feature of sexual violence that occurs in other settings.

The provision sets out a non-exhaustive list of examples of the type of harm that may cause a person to submit to a sexual act to give a sense of the breadth of harm that could be captured. Other types of harm that are not included in the examples can still be relied on in prosecutions. The examples of harm provided for in the legislation include:

Economic or financial harm, such as loss or withdrawal of housing, food or other financial support.

Reputational harm, which may include fear of public humiliation. For example, a person who submits to an act because the other person has threatened to release disparaging information or a person’s sexual or gender history.

Harm to a person’s family, cultural or community relationships may cover a broad range of situations. For example, submitting to a sexual act because it is culturally expected or there would be repercussions if a person did not submit such as being cut off or ostracised from their community or family.

Harm to employment, which may extend to loss of a job, a reduction in income or job prospects.

Family violence involving psychological abuse or harm to mental health may include, for example, verbal aggression, emotional manipulation or controlling behaviour. This could also include threats to withdraw care or medication, or sponsorship for a visa.

Sexual harassment, which includes when a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, or engages in any other unwelcome conduct of a sexual nature towards the other person.

The provision makes clear that it does not matter when the force, harm, or conduct causing fear occurs, provided it is the reason for submission. For example, a person may submit because of a threat made at the time of the act or because the other person has previously harmed them and they are afraid that they will be subjected to harm again if they do not.

The Bill also makes it clear that submission to an act can result from a single incident or be part of an ongoing pattern involving this conduct or fear. An ongoing pattern of behaviour could be made up of individual instances of harm, for example, that on their own may seem subtle or minor and may not have resulted in submission to the sexual act. These provisions are also consistent with the recent reforms commenced in New South Wales.

Coercion and intimidation

The Bill provides that a person does not consent if they submit to the sexual act because of coercion or intimidation. As with the provisions dealing with the use of force and harm, similar provisions are included about the timing of the coercion or intimidation, and whether it is a single incident or is part of a pattern of behaviour.

Collectively, these provisions better reflect the complexity of consent, particularly in relationships characterised by family violence or situations where the accused person is known to the complainant. Force, harm, fear of force or harm, coercion and intimidation in these relationships is often ongoing and part of an established pattern or cycle of coercive and controlling behaviour. This can create a constant environment or state of fear.

We have heard that victim-survivors often adopt strategies to manage their safety or the safety of others in this environment by submitting to sexual acts regardless of when the behaviour or conduct that caused the fear occurred. The new provisions in section 36AA(1)(b) and (c) better reflect these family violence dynamics and how the ability to give free and voluntary agreement is negated in these situations.

Overborne by the abuse of a relationship of authority or trust

The Bill provides that a person does not consent if they submit because they are overborne by the abuse of a relationship of authority or trust. A similar provision is provided for in other jurisdictions, including the Australia Capital Territory and New South Wales, and has been used in successful prosecutions.

This provision will capture situations where a person abuses their position of power in a relationship in such a way as to cause the other person to submit to the sexual act or to feel they have no choice but to submit. For example, this may be because of the power or control the other person holds over them and because they fear they will suffer an adverse consequence if they do not submit. In these situations, a person cannot give free and voluntary agreement.

The phrase ‘overborne by the abuse of a relationship’ is consistent with the language used in the equivalent provision in New South Wales. ‘Abuse’ is not defined in the Bill but is an understood term in the common law. That is, the accused person must have taken advantage of the relationship or misused their position of power within the relationship .

Abuse of a relationship could result from explicit behaviour, such as threats about consequences if the person does not submit to the sexual act or reminders about the power imbalance. For example, an employee who submits to an act with their employer because the employer told them they would not receive a promotion if they did not. A person could also abuse their position within the relationship by implicit behaviour that may create fear of repercussions in the complainant. For example, where the complainant cannot leave in an institutional setting or may have limited options to make a complaint. In each situation, the result of the accused person’s behaviour is that the complainant is overborne into submission and cannot give free and voluntary agreement.

A relationship of authority generally exists where a person has the right (legal or otherwise) to direct or control the other person’s actions. Some types of relationships of authority that may be covered by this provision include employers or persons in management and employees, employees of a prison or detention facility and prisoners/detainees, or a sporting coach and athlete.

A relationship of trust goes beyond any ordinary relationship where trust may be present. The provision is intended to capture relationships involving an obligation of care and protection. For example, a healthcare professional and patient, a person who provides care or support to a person with a disability, or a lecturer or teacher and adult student. Relationships of trust could also extend to cultural or religious relationships such as a kinship relationships in Aboriginal or Torres Strait Islander culture. Some relationships may cover both authority or trust, such as an on-duty police officer and a member of the public, or employees of a mental health facility and involuntary patients of the facility.

We recognise that power imbalances exist in many relationships and that these can involve sexual acts that are loving and consensual. The presence of a relationship of authority or trust, or a relationship where there is a power imbalance, is not enough to negate consent on its own. There must have been an abuse of the relationship by the person in the position of power that caused the complainant to be overborne for the circumstance to apply.

False or misleading representation about payment of commercial sexual services

The Bill makes it clear that a person does not consent if the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that they will be paid.

Sex work is contingent on payment. Making a false or misleading representation about payment to a sex worker who then engages in the act therefore makes it non-consensual. This conduct is currently only captured by the lesser offence of procuring a sexual act by fraud. The Bill makes it clear that in some situations, this conduct could be rape or sexual assault.

What constitutes a false or misleading representation about payment will depend on the circumstances. The circumstances could include prior conversations between the accused person and the complainant about payment. For example, if an accused person says they will pay the complainant a particular price for a sexual service and does not make the payment. A false or misleading representation could include providing false bank details to the complainant, falsifying proof of payment or otherwise pretending to make payment but failing to do so. Consideration could be given to an accused person’s actions after the sexual act to determine whether representations they made before the act were false or misleading. For example, if a person made an electronic payment before the sexual act but reversed or withdrew the payment after the act without reason this may be evidence that the original electronic payment and any associated representations about making payment were false or misleading.

False or misleading representation can be by words or conduct (including omissions) and be implicit or explicit. An implicit representation could include agreeing to the sexual service but not explicitly saying they will pay.

Payment is not defined but could include a non-monetary payment, benefit or reward on the basis of which the commercial sexual service is provided. Partial payment would not satisfy the requirement to make payment, unless it was agreed on by both parties.

Non-use or removal of or tampering with a condom

In response to the VLRC’s recommendation, the Bill will make it clear that a person does not consent to an act if they engaged in the act on the basis that a condom is used and:

either before or during the act any other person involved in the act intentionally removes the condom or tampers with it, or

the person who was to use the condom intentionally does not use it.

The VLRC noted that this conduct is mostly perpetrated by men against women, as well as by men who have sex with men. There is limited research about how prevalent this behaviour is, but one study conducted at the Melbourne Sexual Health Clinic in 2018 found that nearly one in three women and one in five men who have sex with men reported having experienced non-consensual condom removal. The study also found that women who were subjected to this behaviour were more likely to be a sex worker.

It is clear this conduct can cause significant harm and trauma, including sexually transmitted diseases, unplanned pregnancy and psychological distress or fear. But more than this, the non-use, removal or tampering of a condom without consent is a violation of bodily and sexual autonomy. It is a violation of consent, as the act has changed without the person’s free and voluntary agreement.

The VLRC noted that the law in Victoria does not make it clear that this conduct is a criminal act and it has been prosecuted inconsistently. This has likely contributed to poor reporting rates and an unsatisfactory response from the criminal justice system. The same study at the Melbourne Sexual Health Clinic suggested that only 1% of patients in the study reported the event to the police.

Explicitly providing the non-use, removal or tampering of a condom without consent as a circumstance where there is no consent will empower victim-survivors to identify it as a criminal act and encourage reporting. It will enable the conduct to be prosecuted as rape or sexual assault. It is also broadly consistent with the approach in other jurisdictions such as the Australian Capital Territory and Tasmania who have also included the conduct as an explicit circumstance where there is no consent.

The provision will only apply where there has been explicit or implicit agreement to use a condom prior to the act taking place. The provision will only capture intentional non-use, removal or tampering of a condom, not accidental conduct or consensual acts.

Reasonable belief in consent—requirement to take steps to ascertain consent

The Bill will establish a new requirement for a person to take a step to ascertain consent for their belief to be reasonable. A step must involve saying or doing anything to find out if there is consent. This is a critical part of an affirmative consent model.

These reforms will make clear that, if you want to engage in a sexual act with someone, you have to say or do something to find out whether they also want to engage in the sexual act with you. This is an entirely reasonable expectation and will reflect the existing practices of most people in respectful sexual encounters. Under this new law, assumptions about whether a person consents or ambiguity about whether they want to be involved in the sexual act are not enough to satisfy the requirement to have a reasonable belief in consent.

Under the existing law, for offences such as rape and sexual assault, the prosecution must prove that the accused person did not have a reasonable belief that the complainant was consenting. Reasonable belief focuses on the accused’s actual belief and whether the belief was reasonable in the circumstances. This involves considering some of the accused’s particular characteristics and the circumstances of their situation. Guidance is provided in the Jury Directions Act 2015 about what the circumstances may or may not include. For example, it may include the personal characteristics of the accused person. It then becomes a matter of what would be reasonable for a person with those relevant characteristics and in that situation to believe.

These reforms will elevate the taking of active steps to a requirement in every case. Importantly, this will put greater focus on the accused person’s actions in sexual offence trials, rather than focusing on what the victim-survivor did to indicate they did not consent. The VLRC found that whether an accused person had taken any steps to find out whether the other person consented was rarely considered in trials. Analysis of transcripts from rape trials after 2015 showed that instead of questions about what the accused person said or did to obtain consent, complainants continued to be questioned on outdated notions such as whether they fought back or said ‘no’.

The Bill provides that the accused person’s belief that the complainant was consenting is not reasonable if, within a reasonable time before or at the time the act takes place, the accused person does not say or do anything to find out if the complainant is consenting. This is consistent with legislative reforms in New South Wales and the Australian Capital Territory.

What must be said or done to check if the other person consents will depend on the circumstances. The provision is flexible to cater to different styles of communication, including verbal and non-verbal. For example, saying or doing anything could include asking questions or using touch, gestures or body language. If they meet this requirement, the trier of fact may then consider what was said or done. This may be different depending on the type of relationship. For example, what is said or done to find out if there is consent in a long-term relationship, where there may be an established style of communication, may be more subtle and nuanced. Regardless of the situation or the type of relationship, there will now always be a requirement to take an active step, by saying or doing anything, to find out whether the other person consents. This means it should be more than a thought process or assumption.

A person must say or do anything a reasonable time before or at the time the act takes place. In most situations, there is an expectation that the person will say or do anything immediately before or at the time of the sexual act. It is unlikely that saying or doing anything to find out if the other person consents at a much earlier time, for example at a party that took place hours before the sexual act, would be considered reasonable. However, in limited circumstances it may be appropriate to say or do anything at an earlier time, so long as consent continues to be present at the time of the act.

The onus is on the prosecution to prove, beyond reasonable doubt, that the accused person did not say or do anything to find out whether the complainant consented. If it is established that nothing was said or done to ascertain consent, the accused’s belief cannot be considered reasonable, and this element of the offence will be made out. If, however, the accused did say or do something to ascertain consent, they may still be found guilty if the prosecution establishes that their belief in consent is not reasonable in the circumstances.

The Bill provides a narrow exception to the requirement to say or do anything, to address cases where the accused person’s failure to do this was substantially caused by a cognitive impairment or mental illness. This is consistent with the exception provided for in New South Wales. This will ensure that accused people whose capacity to say or do anything to find out if there is consent is impaired because of a serious, diagnosed cognitive impairment or mental illness will not be unfairly disadvantaged by the new affirmative consent requirement. The exception will not apply where the cognitive impairment or mental illness is the effect of self-induced intoxication (i.e. caused by alcohol or drugs), in line with section 36B of the Crimes Act.

To be clear, the exception is not a loophole or a “get out of jail free” card. It will not automatically apply to every accused person with a cognitive impairment or mental illness—only in those cases where this illness or impairment is a substantial cause of their failure to say or do anything to ascertain consent. The accused person will bear the legal onus of proving, on the balance of probabilities, that the exception applies. This is appropriate, as evidence about their impairment or illness is a matter that is peculiarly within the knowledge of the accused and would be too difficult for the prosecution to prove, particularly if the accused exercises their right to silence. Even if the exception is made out, the decision-maker will still have to consider whether, in all the circumstances, the accused person had a reasonable belief in consent. This means that an accused person may prove the exception, but still be found not to have had a reasonable belief in consent, and therefore be found guilty of the offence.

Together, these reforms will strengthen and provide clarity on the provisions in the Crimes Act that relate to consent and reasonable belief in consent. The reforms will bring Victoria’s laws in line with contemporary understandings and expectations of consent and will create long-lasting change to the way Victorians participate in sexual activity.

Given their significance, the government will review the operation of the consent reforms. It is important to allow the new provisions to be applied in practice before a meaningful review of their effectiveness can be undertaken. This review will also be able to draw upon experiences and learnings in other jurisdictions that have recently undertaken affirmative consent reform, including New South Wales and the Australian Capital Territory, which have committed to their own reviews.

To realise the ambition of these reforms and effect change across the Victorian community, we will work with local organisations and specialist services to deliver community-based consent education, as announced in the recent 2022–23 State Budget, to ensure affirmative consent is understood, supported and adopted by Victorians. Ultimately, our goal is to stop sexual violence before it happens in the first place. When well understood, these reforms have enormous potential to change people’s behaviour and attitudes, profoundly supporting our efforts to prevent sexual violence. This will complement existing education initiatives, like Respectful Relationships in schools, to embed a culture of consent and respect in young people and across the community.

Image-based sexual offence reforms

Image-based sexual abuse (IBSA) involves the non-consensual creation and/or sharing of intimate images or threats to do so. Victoria has historically been a leader in addressing this insidious and widespread form of abuse which, as of 2019, almost one quarter of Australians aged 16 to 49 had experienced. In 2007, Victoria was one of Australia’s first jurisdictions to specifically criminalise IBSA through the creation of new offences in the Summary Offences Act 1966.

Almost 15 years after these offences were introduced, the VLRC recommended updating Victoria’s IBSA laws to better reflect the seriousness of this offending and respond to advancements in the technologies used to commit it. The VLRC also recommended criminalising the taking of an intimate image without a person’s consent in recognition that victim-survivors can suffer harm through knowing that an intimate image of them exists, even where distribution has not occurred or been threatened.

The Bill implements the VLRC’s recommendations by consolidating Victoria’s main IBSA offences and moving themto the Crimes Act. The three new offences cover producing, distributing and threatening to distribute an intimate image.

Moving the IBSA offences into the Crimes Act will mean that these crimes will now be classified as indictable, rather than summary offences. This will strengthen the criminal justice response by enhancing police search and arrest powers in relation to this type of offending. Additionally, the Bill will introduce a new, higher maximum penalty of three years’ imprisonment to better recognise the seriousness and harmful effects of this type of offending. This reform brings Victoria’s maximum penalties in line with other comparable jurisdictions.

The Bill expands the definition of ‘intimate image’ to include digitally created images in order to capture ‘deepfake porn’, where an image is generated, manipulated or altered to appear to depict the victim-survivor. The Bill also amends this definition to better cover persons of diverse genders. Under the change, in line with legislation in New South Wales and other jurisdictions, an intimate image will include an image that depicts the breasts of a transgender or intersex person identifying as female. While this will achieve the intended purpose, the government acknowledges that there is more work to be done to improve the inclusivity of language relating to gender and gender identity in the Crimes Act and Victorian legislation more broadly. This will be a longer term project.

In line with Victoria’s current laws, the new offences will include an exception if the person depicted in the image has provided their consent to it being produced or distributed. However, in line with Victoria’s affirmative consent model, these provisions have been strengthened. For example, the Bill specifies that the fact a person consents to one act, such as the production of an intimate image, does not mean they have consented to another, such as distribution of that image.

Research shows that women, First Nations Australians and lesbian, gay and bisexual people are more likely to be victims of IBSA. The Bill will extend procedural protections to IBSA complainants to ensure they are better supported during criminal proceedings, including alternative arrangements for giving evidence and suppressing a complainant’s identity unless they wish to be identified. These measures and aim to reduce the risk of traumatising victim-survivors through the criminal process and promote their right to privacy.

The Bill will also assist complainants by empowering the courts to make a ‘disposal order’ for the destruction or disposal of an intimate image. This will help address the long lasting and recurring harm image-based sexual abuse can have if intimate images are allowed to remain in the possession of an accused person.

While these reforms to strengthen Victoria’s IBSA laws are appropriate, the VLRC noted that these changes may result in over-criminalising mistakes made by children, who frequently use technology and may have a less developed understanding of what constitutes IBSA offending. To address this risk, the Bill implements the VLRC’s recommendation of requiring the Director of Public Prosecutions to consent to commencing a prosecution against a person who was under 16 years old at the time of the alleged offending. This procedural safeguard will help ensure that children are only prosecuted for this type of offending in appropriate cases.

Facilitating prosecutions for historical sexual offending

The Bill will facilitate the prosecution of historical sexual offending, addressing recommendation 56 of the VLRC report. New section 7B of the Criminal Procedure Act will address the difficulties that currently arise for the prosecution where offending is alleged to have taken place during a period but the applicable offence changes during that period.

Problems can arise when the prosecution is unable to pinpoint the exact time of the alleged conduct—which is all too common in these cases, particular for historical sexual offending against children—and it is not clear which offence should apply. A recent example of this problem is where an offence is alleged to have been committed during the period when new, modernised sexual offences laws were introduced in 2017 by the Crimes Amendment (Sexual Offences) Act 2016. In this example, it may be unclear whether the old or new criminal offences apply, due to the lack of certainty about the precise time when the offence was committed. In some instances, this uncertainty has resulted in cases being discontinued, or charges not being filed, despite the alleged conduct being a criminal offence at all times during the period.

New section 7B will address this gap in the law. It will ensure that the prosecution can rely on whichever offence carries the lesser maximum penalty, and can rely on this offence in relation to the entirety of the period.

Strengthening protections for confidential communications of sexual offence victim-survivors

To protect the privacy of victim-survivors and ensure that they are not discouraged from seeking counselling, the law already prohibits a ‘confidential communication’ from being compelled, produced or used in a proceeding, without leave of the court. ‘Confidential communication’ covers communication made confidentially by a victim-survivor to a registered medical practitioner or counsellor in the course of the client-practitioner relationship.

Despite this protection, the VLRC found that many victim-survivors are not made aware of applications for disclosure of their confidential communications and highlighted the importance of their participation in these applications.

In line with recommendation 87 of the VLRC report, the Bill will expand and strengthen protections in criminal proceedings, including expanding protections to include ‘health information’ (such as personal information about a sexual offence victim-survivor that is collected in providing a health service).

The Bill will make it clear that victim-survivors’ concerns regarding the use of their sensitive records are heard and considered, including by:

requiring the prosecuting party to ensure victim-survivors are notified about applications to access their information, and are advised that they have a right to appear and may wish to consider obtaining legal advice; and

providing victim-survivors a clear right to appear in applications and permitting them to provide a confidential statement describing the harm they are likely to suffer if the application is granted. The court will only be able to disclose this statement in very limited circumstances, where doing so would be in the interests of justice, such as where necessary to ensure the accused’s right to a fair trial is upheld.

Consistent with the VLRC recommendation, the Bill confines these reforms to criminal proceedings. Expanding these reforms to civil proceedings will be subject to further consideration by the Government and may be considered in future legislative reform.

These amendments fulfil the commitment made earlier this year, when similar house amendments were proposed by Mr Grimley MP. I thank Mr Grimley for agreeing to withdraw his amendments at that time, which has allowed the Government to consider these reforms in the context of this broader Bill, with the benefit of stakeholder feedback.

Improving criminal procedure protections

The Bill will make a range of improvements to criminal procedure, to better protect victim-survivors and witnesses from unnecessary additional distress and trauma.

The Bill better protects young complainants by clarifying the scope of a Criminal Procedure Act 2009 (CPA) provision that prevents the cross-examination of witnesses in certain proceedings. It specifies that the provision applies if a complainant for a sexual offence charge was a child or person with a cognitive impairment when the relevant proceeding commenced. This removes uncertainty by confirming that a child complainant who turns 18 prior to a committal hearing is still protected from being cross-examined.

The Bill also strengthens other pre-trial cross-examination protections. The VLRC found that cross-examination is particularly stressful for victim-survivors of sexual or family violence and witnesses with a cognitive impairment. To address this, it reaffirmed recommendations made in its 2020 report on Committals (Committals Report) to strengthen measures in the CPA that protect witnesses from being unnecessarily traumatised through pre-trial cross-examination. The Bill implements recommendation 45 of the Committals Report by requiring the court to have regard to additional considerations when determining whether to allow the pre-trial cross-examination of a witness who:

has a cognitive impairment, or

is a complainant in a proceeding that relates to a charge for a sexual or family violence offence.

This requirement is already in place in relation to child witnesses. The additional considerations include the need to minimise trauma that might be experienced by the witness, and any relevant condition or characteristic of the witness.

The Bill also addresses recommendation 46 of the VLRC Committals Report by requiring magistrates to provide reasons for granting leave to cross-examine a witness and identify each issue on which the witness may be cross-examined. However, magistrates will not be required to provide the reasons in writing to prevent an undue burden being placed on the court.

The Bill will make ground rules hearings mandatory for all sexual offence complainants, implementing recommendation 84 of the VLRC report. At ground rules hearings, the court and counsel discuss the questioning of witnesses, to help ensure questioning is respectful and fair, and to encourage the best evidence from the witness. They are currently only available in sexual offence and other limited matters that involve a witness (other than the accused) who is a child or has a cognitive impairment. Expanding the availability of these hearings will fairly and effectively meet the needs of a broader cohort of complainants.

Jury directions

The Bill will strengthen and improve jury directions laws applying to sexual offence trials by implementing recommendations 78, 79 and 82 of the VLRC report.

Addressing misconceptions about sexual violence earlier and more often

Jury directions are an essential feature of the criminal justice process. They ensure the jury is provided with appropriate guidance in its decision making, such as in relation to the meaning of certain terms and the matters it should and should not take into account. They also help to address common misconceptions that may otherwise lead to flawed decision-making and unfair outcomes.

The Bill will introduce a clear process that requires trial judges to give misconception directions at the earliest opportunity and at any time in the trial, if the judge considers there are good reasons to do so. This will ensure that directions are given at the earliest appropriate opportunity, but also only when needed so that juries are not overwhelmed by information. The Bill will also encourage early discussions between the judge and counsel about the jury directions that may be required to be given in a trial, to further streamline this process.

To ensure there is greater clarity about the giving of directions, the Bill will provide that both the new misconception directions introduced by this Bill, as well as some existing misconception directions, will apply to any sexual offence, regardless of when it was alleged to have been committed. These changes will simplify jury directions law for judges and practitioners.

Addressing further misconceptions about sexual violence

The Bill will build on the strong foundation already provided in the Jury Directions Act 2015 by introducing new directions to counter a broad range of misconceptions relating to sexual violence that may lead to jurors inappropriately assessing the facts in a trial. Some of the new directions are similar to directions recently introduced in New South Wales and New Zealand, and all have a strong evidence base.

The directions will address a range of misconceptions, including about a complainant’s behaviour or appearance. For example, the Bill will make clear that an accused cannot rely on an assumption that a person who dresses provocatively or drinks alcohol with someone is consenting to sex. It will also, in appropriate cases, require the judge to direct that both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress, to address the misconception that a genuine victim-survivor would always appear distressed when giving evidence and that the absence of such emotion indicates they are not being truthful.

To further improve the fairness of sexual offence trials, the Bill will prohibit statements that diminish the credibility of complainants just because they are sex workers or have a particular sexual orientation or gender identity, or suggestions that these complainants require more careful scrutiny by the jury. This will build upon reforms undertaken by the government to de-stigmatise sex work and protect against damaging stereotypes.

Explaining ‘proof beyond reasonable doubt’

The Jury Directions Act currently allows a trial judge to explain the phrase ‘proof beyond reasonable doubt’ to a jury, if the jury asks a question which raises the meaning of it. The Bill will require judges to explain the ‘beyond reasonable doubt’ phrase in all criminal trials unless there are good reasons not to. This reflects the fundamental importance of this concept in criminal trials, while still allowing judges an appropriate discretion. Judges will be required to explain this before any evidence is presented, unless there are good reasons to give it later. This will ensure juries are assisted in understanding this concept at the earliest possible opportunity, while retaining appropriate flexibility to adjust the timing of the explanation to best suit the needs of the trial.

Extending temporary measures to assist the efficient operation of the courts.

Finally, the Bill will assist the courts to operate efficiently and safely, by extending temporary provisions in the Court Security Act 1980 and the Open Courts Act 2013 by 12 months to allow courts and tribunals to effectively manage their premises and address court backlogs. The provisions:

allow authorised officers to restrict access to court and tribunal premises and give reasonable directions for the health of all persons on the premises, and

clarify that giving the public certain methods of remote access to court proceedings (for example, by providing a livestream) does not contravene any rule of law relating to open justice if it is in the interests of justice.

These reforms will support the courts and tribunals to continue managing their premises safely and using digital technologies to administer justice effectively and efficiently.

I commend the Bill to the house.

Ms STALEY (Ripon) (10:14): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 18 August.