Thursday, 18 August 2022

Bills

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

Second reading

Debate resumed.

Ms GREEN (Yan Yean) (14:56): Speaker, I am glad that you are now in the chair as I resume my contribution on this important bill following the luncheon break and question time. I know that you, Speaker, and I were very impressed when we attended the recent Commonwealth Women Parliamentarians conference by the quality of the speakers there. But I know that both you and I were quite shocked when we heard an amazing speaker, Ramona Vijeyarasa. She quoted the figures from the latest World Economic Forum report for 2022 showing that Australia ranks 43rd—although it has moved up slightly this year from 50th in 2021—in terms of global gender equality. But it has been on a downhill trajectory since 2015, when Australia was ranked 15th. This index measures the gap in equality across countries, but the inequality gap in Australia between men and women is bigger than in the 42 other countries that rank before us, and we are the ninth-richest country in the world. We think of ourselves as First World, but with our lack of gender equality we have been Third World. Part of this is about gendered violence towards women.

Political equality is really important and we have made great strides in this state, but it is only on this side of the house. It really is only when women’s voices are heard and genuinely equal and listened to that you can make changes like this. But the changes are going to need to go further than just legislation. It has got to be attitudinal. We really have a cultural problem in this country that we all need to face up to. The member for Tarneit mentioned earlier the experience of her daughter, Emily, in primary school having horribly sexualised comments made to her by a little boy. I do not for a minute blame that little boy. It really is our culture.

I mentioned earlier too that those on the other side numerous times have said that they would get rid of the Respectful Relationships program. What this actually does is talk to children about respecting each other’s bodies and respecting consent, and it is crucially important, because we cannot ignore the fact that with the devices that we all rely on every day our children are being exposed to horrific and graphic pornography. I am not trying to be a moral majority person here, but it is graphic and it is violent. The porn purveyors actually target sites that our young people go to, and they are just common keystrokes. So you have got to actually supervise your young people, because they could be exposed to pretty horrific porn and violence. That is not to say some of these things are not happening in children’s homes, but really as parents we have to talk to our kids about this and supervise them and not leave them alone looking at these things online. I think a lot of that is where it is coming from. So that is why things like Respectful Relationships and respect for women’s roles in our society are needed, but also assisting our young people to know what consent means for boys and for girls.

The member for Eltham talked about the way she was raised. A number of others have talked about how they were raised, and so did the member for Tarneit. But certainly in a Catholic girls system we were just told how to behave and not how to demand good behaviour from others—and that was back in my day. Particularly with my father, it was very much the moral majority: ‘You will not do this; you will not do that’. There was no conversation about what to do when you were faced with an unexpected sexual contact.

The first job that he got me was with the good Catholic man when I was 13, in a milk bar—you know, that man with wandering hands, that man that used to take money out of the till for his SP betting and then blame it on the staff. Then when his wife and he got into an argument about it he would violently attack that woman, and the children would be coming in asking for help from me as a 13-year-old girl. We need to educate our kids in how to deal with difficult behaviours, with predatory behaviours, and we need not to blame the victim.

I was shocked when the member for Eltham talked about her experience of being a 13-year-old girl and molested in the queue at the MCG. It really seems that there is no age barrier for when this occurs, because this actually happened to me in a queue in a department store when my children were really young—and I remembered that when the member for Eltham retold her story. Really as an adult woman I felt as helpless as a 13-year-old girl.

This bill before the house does really inform people about consent, but it will need to be backed up with changes in how we all culturally expect behaviour from each other and particularly respect women and girls. I want to commend the brave, brave young women who have coordinated those amazing marches for justice, which many and most of us in the Labor Party caucus, particularly our women, attended—you know, Chanel Contos, Saxon Mullins, Grace Tame and Brittany Higgins. We owe a debt of gratitude to those brave young women who have been able to speak up about what has happened to them—and I have to say I never felt strong enough to be able to do that when I was a teenager. It really has been those young people that have led us to this point, and I just hope that we go further and further into this, improving the way we relate between men and women.

Mr R SMITH (Warrandyte) (15:02): I move:

That debate be adjourned.

House divided on motion:

Motion defeated.

Ms THEOPHANOUS (Northcote) (15:10): That was all a bit unnecessary, wasn’t it? I expect it from the Liberal Party. I did not expect the Greens party to want to shut down debate on the Justice Legislation (Sexual Offences and Other Matters) Bill 2022, but there you go.

Ms McLeish: On a point of order, Speaker, the member on her feet is absolutely misrepresenting the situation. There was an agreement that we would change—

The SPEAKER: Order! Member for Eildon, you will resume your seat or leave the chamber. That is not a point of order.

Ms THEOPHANOUS: Thank you, Speaker. I am delighted to continue debating this very important bill despite the attempts that we have just seen. It is with a deep sense of responsibility to both the victim-survivors and the generations of Victorians to come that I rise to speak in support of this bill—this very important bill. Of course we should not need a bill like this, but the reality is that we do.

Though invariably there will be pushback and commentary from those who feel uncomfortable speaking about sexual violence, that should not and will not deter us. The fight for equality and safety is ongoing, and we will not stop raising our voices and making noise about it. We raised our voices when we fought for the vote. We raised our voices when we fought for pay equality. We raised our voices when we fought for paid parental leave, for reproductive rights, for protections against discrimination and for safety in our homes and in our workplaces. We will not stop raising our voices, and it has been an honour throughout my time both as an MP and before that as a women’s policy adviser to lend my voice to that movement and to that legacy. So I join with all the voices that have come before mine for the sake of all the voices that will come after, because the truth is that our fight for equality and safety is nowhere near over, and although that can be difficult to talk about, it is necessary to talk about. We should be uncomfortable with the rates of sexual violence in Victoria—sexual violence that is overwhelmingly suffered by women, sexual violence that causes devastating and long-term harm. We should be horrified and angry. But more than that, we are motivated to be here in this house of Parliament fighting for change by bringing forward this historic bill that will enshrine affirmative consent into law in Victoria.

It has been a long journey to get here, a journey that so many strong women members of Parliament in our Labor government have been a part of and that so many outside of this Parliament have been a part of too—victim-survivors, activists, allies, support services and feminist organisations. But in particular I want to acknowledge the strong young women that have been at the forefront of this work. Powerful advocates like Saxon Mullins, Grace Tame, Brittany Higgins and Chanel Contos have driven national conversations around sexual violence and consent.

In my own community too over the past four years I have had countless conversations with young people in Northcote, and their message is loud and clear: they want to see cultural change and change to the way sexual violence is treated in the justice system. They are done with the victim blaming and the gaslighting that has characterised so many of our own formative years. I am particularly reminded of a powerful group of young women from Northcote High School who have since graduated but who I spoke to at length about these issues and who continue to advocate for change. It was around the time of those awful and bizarre milkshake consent videos that were released by the Morrison government—a very good example of how not to talk about consent. These young women were going through the Respectful Relationships program at school at the same time, and they were energised to make that program the best that it could be. So they worked with their teachers and classmates and specialist services to explore how it could be strengthened, particularly around improving our collective understandings of consent, and they produced a wonderful piece of work around this. It is strong, powerful young people like these that have driven change and will continue to drive change in our society, and I could not be prouder to be using my voice in this Parliament to echo theirs, because there is no place for sexual violence in Victoria.

As I say those words, I do feel like they are manifestly inadequate for expressing the real trauma, the personal cost and the experience itself that is described by words like ‘sexual violence’ and ‘rape’. But this is not abstract, and those words cannot really describe it. It is happening right now to women that we know. It happened yesterday and it is happening tomorrow, and for too many there just is no justice. Our culture and our justice system have not made reporting safe for women, and when offences are reported just one in 23 rape cases results in conviction. The devastating, crushing feeling of that injustice is not easy to heal from. It perpetuates a situation where far too many perpetrators are getting away with it, and it buttresses a culture in which women continue to be disempowered, disrespected and devalued. As I said, this bill should not be necessary, but it is.

The Labor government in Victoria has embarked on an enormous program of reform towards gender equality and ending gendered violence. From the Royal Commission into Family Violence to our Gender Equality Act 2020 and Respectful Relationships in schools, we have been ambitious and we have been determined. In 2020 we asked the Victorian Law Reform Commission (VLRC) to look into the justice system’s responses to sexual offences. The resulting report found that sexual violence is widespread and under-reported and causes significant harm and, even when reported, convictions are rare. As the commission noted:

Too often, people who have experienced sexual violence do not get what they need or want from the justice system … Instead, the justice system often leaves them feeling alone, invisible, and as if they are the ones on trial.

This bill shifts the scales. It redefines the meaning of consent and sends a clear message about responsibility. Critically it says to victim-survivors, ‘This is not your fault, and it never was your fault’.

I know that this bill has been subject to some panicky commentary that has sought to criticise or trivialise the reforms, with claims ranging from the bill preventing people from kissing their partners to stopping teenagers exploring their sexuality and even that it will kill romance, as if spontaneity and sexual assault are in any way synonymous, as if young people cannot explore sexuality in a way that is both respectful and safe—let us give them credit here—and as if women do not know when they are being sexually assaulted and perpetrators are just misunderstood. It is worth noting that many of these comments reflect the old stereotypes and narratives that this bill seeks to address. We cannot and must not accept the narrative that many sexual assaults derive from misunderstandings or from the misleading actions of victim-survivors. That is victim blaming. Instead we need to have an open and honest conversation about what positive, respectful relationships look like, and we must set a legislative standard that reflects and leads community expectations.

This bill means consent must be actively sought and communicated, not just assumed. It puts a focus on the need to actively seek consent and a focus on the actions of the accused. Simply put, you need a clear and enthusiastic go-ahead. As others have said, it is not ‘no means no’ anymore, it is ‘yes means yes’, and this change in focus is critical to accurately reflecting the reality of sexual violence and the experience of victim-survivors in court. The VLRC found that victim-survivors continue to be questioned and judged on outdated notions of whether they said no or fought back, but we know that not resisting is not the same as consent. Fear of harm, coercion and power imbalances all contribute to how we respond in moments of crisis.

As part of this bill we are also explicitly legislating to make stealthing, which is the non-use of or tampering with a condom without consent, a crime, and I am very pleased to support that aspect of the bill. I think it is critical. We have come a long way in terms of generational change, but there is no doubt that education still has an important role to play here, and I am pleased that we are also committed to delivering community-based consent education. I do not have time to say all the things that I want to, but we do need to ensure that consent is understood, supported and adopted in Victoria. So that is a critical part of the reform. Ultimately the goal is to stop sexual violence before it happens, and these reforms have the potential to deliver that change.

As I finish up my remarks I just want to thank the brave victim-survivors who have told their stories and allowed us to propel these reforms. Today we are changing the law for you and for every single Victorian. I hope that this gives our young people in particular hope and certainty, and I commend the bill to the house.

Mr EDBROOKE (Frankston) (15:20): Can I just start out by flagging that I will be talking about some sensitive issues on this topic, but I think it is really important that we have honest, frank and open discussions about this. I also just want to start by saying that I am very proud to be part of a Labor government with 50 per cent women in our caucus and over 50 per cent women in our cabinet. They have done this bill more justice today than I think I ever will. There have been some shocking disclosures, and I pay tribute to those people, my colleagues and the people who work every day to keep men and women safe from sexual violence as well, particularly in the Frankston area, and also victim-survivors who have been brave enough to come forward, especially during the Royal Commission into Family Violence as well.

This bill, as we have heard, will reform the Crimes Act 1958 to implement the affirmative consent model. It includes amendments to the definition of consent to be ‘free and voluntary agreement’ and clarifies, importantly, the circumstances where consent is not given. It makes clear that a person cannot have a reasonable belief in consent if they did not say or do anything to find out if there was actually consent. It makes clear that stealthing, which as we have heard is this strange behaviour by males to remove condoms during sex and therefore not get consistent, continual consent from a partner, is a crime, and we are legislating that it is a crime here. It amends image-based sexual offences to better recognise their seriousness and broaden their application to gender-diverse victims. It includes a new interpretive provision to facilitate prosecutions for historical sexual offending, and it introduces new jury directions to address common misconceptions about sexual violence.

I know there will be people in my community and maybe even this chamber today that are saying, ‘This is unnecessary. Why would we be doing this? Why do we need it?’. I would say to them that this is part of a cultural and generational change, and the legislation we are putting up today is running parallel to that and keeping up with what is happening in our culture. We have been very clear as a government that there is no room in our community for sexual or gendered violence and that gender equality is a human right—not just a female right, I guess. This is a bill where I am incredibly proud to stand here, but it is sad that we have to actually put this through, because in an ideal world this kind of sexual violence would not be happening. The reason, though, if I had to answer that question to people about why we are here today, why we are doing this and why it is necessary would be something along the lines of, ‘Well, let’s not look at our community for a second. Let’s look at who is leading our nation’. The previous federal government is a brilliant example of why we need this. There might be people who disagree with me, and that is up to them, but I think I make a pretty good case.

We have the brave victim-survivors Brittany Higgins, Grace Tame and Julia Banks. We had allegations against Minister Porter. We of course had the Jenkins report. We heard about desk masturbators. We heard about sex workers being invited into federal Parliament—I think it was to the chapel. It kind of bewilders me that we would be here in this house today and we have just had a division about shutting this debate down when there have only been three people—three MPs—from the opposite side of the chamber. Sorry, I think it was one Greens member and three Liberal MPs that wanted to speak on this, because sexual violence happens everywhere. Of those three MPs, there was one woman who wanted to speak on this.

We are talking about a crime where only one in 23 rapes is reported and the perpetrator convicted. This is something we need to talk about. We need to bring it out into the open. I would have thought it was especially relevant to those in the opposition. As we speak, one of their members is at home because he is banned from Parliament for inappropriate behaviour. I reckon I would have been up there jumping in those chairs making sure that my voice was heard that we needed to put a stake in the ground or a line in the sand and say, ‘This is where we stand on this issue’.

We are saying that there is no such thing as a legal, sexual interaction without respect and consent. It is not just a nice-to-have; you must have it. We are saying to girls and boys, men and women, that you will be held accountable, and also that this is only the first step to achieving what I think is still a long road ahead to make sure that we can keep everyone safe in Victoria, and hopefully across the nation too.

We have heard people in this chamber talk about ‘no’ meaning ‘no’, and I remember the member for Footscray talking about how in our generation that is what we were brought up with: ‘no means no’. That left a lot of grey areas. I was stunned to hear some of the gaslighting we have heard from the opposition today. We even heard talk about submission, which to me is this yielding to a superior male or superior being—something like that. I think it comes down to maybe having healthy sex talks and making sure that our young men and boys are educated in what is masculinity. That is what this government is about, and we have put programs in place for that.

I think it is really basic in a way. We are actually putting in legislation what we teach in kinder. You might know this, Acting Speaker, and there are plenty of people who might have seen this in primary schools or kinders. We teach children to protect themselves against predators by teaching them three things. The first one is that your body belongs to you, the second one is that you decide about your body, and the third one is that nobody should touch your body without your permission. How is that different from what we are legislating here today? I think there is just a generational gap. Unfortunately it is in my generation and around that era where there are a number of issues, and we have not faced these. It is the younger generation that are calling us out on this and saying, ‘This is no longer appropriate’. You know the difference? The difference is that we have healthy talks about sex with kids these days. For a long time and for many generations sex was taboo. It was part of our culture—part of our western, colonialised culture. Sex was taboo. Women could not enjoy sex. Women were there to pleasure men. That was how people were brought up. Now we are having good talks about sexual health, about sexual behaviour and about respectful relationships, and it is changing the next generation. We need to legislate here today to ensure that our law is running in parallel with that generation.

I think it is an important change that is not appreciated by some on the other side. As I said, it is a parallel legal change, but this is not that difficult to understand. Maybe with some of the behaviour and gaslighting we are seeing, an explanation that would go a long way to explaining that is how—again—people in my generation had sex explained to them, had power relationships explained to them, had what abuse is explained to them and had what consent is explained to them. I would say, speaking for myself—and I went through the same school system as many other people—that this was not a subject. People found this out on the fly, and a lot of the abuse experienced now is because of people in my generation.

We do have hope, though. We have got a bunch of bright, young, enthusiastic people that know what equality is. They can identify gendered violence. They can identify sexual violence. They understand consent. They understand the basics. It confounds me that we can be talking about this and there can be disagreement about consent, whether it be sexual or something else. I am not going to go down and steal the minister’s pen because—the minister might not say anything to me, but I know it is wrong to steal her pen; I do not need to hear ‘no’. I should ask for consent. That is a very, very basic transaction, but it is exactly the same transaction—maybe a little bit more complex, but the same basis—as we are talking about today. If you would like to have sex with someone, it should not get to the point where they have to submit. You have done something very wrong if you have to get to the point where someone says ‘no’. You have probably missed a lot of red flags there too.

I might go out on a limb here and say that, for the people that maybe do not understand their own sexuality, maybe asking for consent and getting someone to say ‘yes’—who wants to actually have sex with you and might enjoy it—might actually be the thrill of a lifetime for them. But it is very, very important that we have our community in Victoria thinking that every single member of this chamber, every representative in Victoria, is very firm on this—that if you touch someone without their consent, if you engage in sexual relations without someone’s consent, you are breaking the law. This really draws that line in the sand, and I commend the bill to the house.

Ms THOMAS (Macedon—Minister for Health, Minister for Ambulance Services) (15:30): I move:

That the debate be now adjourned.

Motion agreed to.

Ordered that debate be adjourned until later this day.