Member for Western Victoria
Derryn Hinch’s Justice Party

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

I rise to speak on the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, and it is with great support that I speak on behalf of Derryn Hinch’s Justice Party on this bill. It will introduce an affirmative consent model, an offence for stealthing and confidential communication provisions to protect victims’ counselling and health records. It will also tighten up existing provisions surrounding jury directions in sexual assault matters and clarify laws about image-based sexual assault, among other things. Firstly, I will speak to the most significant part of the bill, which is an affirmative consent model— and Derryn Hinch’s Justice Party welcomes this move. It is something I know will be a huge celebration and frankly relief for a number of victim-survivors who we work with. For too long our system has victim blamed. For too long our system said, ‘Why didn’t you just say no?’. For too long the criminal justice system has required a woman to take the stand and be cross-examined about the fact that ‘She said yes before, so she clearly wanted it on this occasion’. It is rubbish, and I am looking forward to victim-survivors being believed. Needless to say, these reforms need to be accompanied by significant educational campaigns. This is not a statement to excuse bad sexual behaviour—in fact far from it—but many of us in this place have sons and daughters, and while some young people, young men mainly, might think they have gained consent, it may not be satisfactory under these new laws. I refer to much of the commentary within the legal fraternity at the moment. They think that this could create real problems with clients who did not intentionally do anything wrong but, under the eyes of these new laws, may have. Consider things like how drunk is too drunk to give consent. Some might say, ‘Well, any drinking means they can’t give free and voluntary consent’. Others might say, ‘If they’re unable to put their words together, then that’s the level at which they can’t give consent’. Others might say it depends on X, Y or Z. Further, not many people talk about the circumstances where both parties were drunk and could not have possibly, either of them, freely consented. But you can see there is no definition of how alcohol or other drugs might intersect with informed consent. That is just one example of the complexities of sexual assault law. It is going to be quite difficult for our state to move to this model in terms of changing attitudes, but I think we are heading in the right direction. And I think it is absolutely necessary. I am glad to see the bill refers to pressures outside of that moment constituting lack of consent. For instance, in family violence where the victim-survivor feels threatened due to a course of conduct and is pressured to have sex, that would not be consensual. The bill has extensive provisions relating to submission from force or fear of force or harm or fear of harm, whether from a single incident or a pattern of behaviour. We have spoken to many victim-survivors who have experienced this kind of coercion. In terms of potential loopholes, there is one which is reasonable in one eye and a defence lawyer’s breakfast in the other. If you can prove you have a cognitive impairment or mental illness, you are exempt from the requirement to take steps to confirm consent. Obviously the protection here is that the status quo remains. But I am cynical, and I am sure that there will be mental health assessments to try to access this loophole. I have to say the explanatory memorandum to this bill is quite substantial and very prescriptive in its direction. It is the first that I have seen like it. Where federally the explanatory memorandums are very in depth and contextualised, we do not seem to have that in the state versions generally speaking. But given the complexity of this bill and the need for courts to interpret according to the Parliament’s intention, it is extremely in depth. I welcome such documents like that in the future. Moving on, under the bill the removal of a condom without permission will remove consent. This is sometimes known as stealthing, but it is primarily and essentially a sexual assault. Coincidentally I had drafted amendments to the Sex Work Decriminalisation Bill 2021 last year and was planning to announce them the day after the government’s announcement when they released the Victorian Law Reform Commission report. In fact the Herald Sun had written our article, and it was ready to go. We had drafted it even before the VLRC Sexual Offences report had been released. So we were very glad, though not surprised, having spoken to many survivors, to see it in there. We had consulted victim[1]survivors as well as Dr Brianna Chesser, who is a senior lecturer in criminology and justice and the program manager for the bachelor of criminology and psychology at RMIT. Dr Chesser worked on implementing the ACT stealthing laws. Given this, you could say we are pretty happy with the inclusion of this amendment within the bill. When I was at Victoria Police I dealt with several sex workers who submitted allegations of sexual assault by removing of the condom, but we were unable to prosecute these offences. This legislation seeks to amend this, and I welcome it wholeheartedly. I am also grateful to see changes to image-based sexual offending which will take these crimes more seriously. I have to say it is about time. This is something which has had universal support in this place and in the community and should have been done years ago as mobile phones and computers started being used as weapons. The bill moves these offences into the Crimes Act 1958 but allows them to be tried summarily, so the statute of limitations on them will be removed, I presume. The definition will be broadened to include crimes like deepfake porn and the alteration of images without consent. There are reasonable exemptions to this clause which ensure that there are hopefully no unintended consequences. I now move to the confidential communications provisions that have been included in the bill. Quoting my own press release from earlier this year, the amendments: … will allow victims of sexual assault the right to defend their confidential communications … and will create a system of checks and balances to ensure courts are satisfied that victims are aware of applications to access their— private— information. I introduced these amendments in March this year and withdrew them on the commitment that they would be introduced in this affirmative consent bill, and they have been. I did note that in the crossbench bill briefing the Attorney’s office did not make any reference to this amendment being due to the hard work and advocacy of Derryn Hinch’s Justice Party, which was a little disappointing. These confidential communication amendments are a six-year-old Victorian Law Reform Commission report recommendation and have not been codified since. Nonetheless I thank the Attorney for keeping her word in introducing them and extending the provisions to health records. It is a small step, but for some out there it will make a huge difference. I want to finish on two issues—sexual assault and how we can reduce this horrible crime. It was interesting to see that I was mentioned in the 2021 VLRC sexual offences report. The mention was about my concern for a lack of data collection around failure to report and attrition rates. I saw it firsthand when I was at the sexual offences and child abuse investigation team at Victoria Police—the lack of data collection, the lack of de-identified narrative speaking to reasons for attrition. We simply do not have that data that we desperately need. The VLRC report made a number of recommendations around data collection, but I had beaten them to it a year or so earlier. My motion on improving data collection for sexual offences in 2020 was voted down by the government, the Greens, the Animal Justice Party and the Reason Party. My motion would have gone some way to fixing this issue of data collection. Ms Patten said at the time that it was a Trojan horse for a sex offender register, of all things. If that were the case, then the VLRC were perhaps pushing for a sex offender register as well when they recommended the same thing in their report. I want to pick up something that Dr Ratnam said in her second-reading speech on this bill, which was: Less than one-fifth of sexual offences reported to police result in a conviction in court. The vast majority do not progress past the police investigation stage, and of course most sexual offences are not reported at all. … The true extent of sexual violence in our community is much greater and much more concerning than those statistics would suggest. Some suggest less than 1 per cent of sexual assaults result in convictions. I say to those crossbenchers: if we only knew what the reasons were behind this data, then we could perhaps move some way to fix the problems. It is so very frustrating in this place when we propose commonsense motions and amendments that continually are voted against by the same parties—in the interests of what? I have no idea. It is certainly not in the interests of victims of sexual assault. I urge members in this place who have voted against proposed reforms previously to speak with victims of crime and to speak with the sexual assault agencies and academics that suggest the changes are so desperately needed to improve the system. It is difficult for me to forget that vote, because it was playing politics over an issue that we have seen here today is clearly very significant. Our party’s ideas for motions and amendments do not come from me and they do not come from a political base. They generally come directly from victims and from support service agencies. Just before I wrap up I want to speak about another piece of advocacy from Derryn Hinch’s Justice Party in relation to sexual offending and where it is up to. Earlier this year we passed a motion in the house about sexual assault reporting options. It asked the government to commit to an online mechanism to report sexual assaults. I will not rehash the entire speech here and now, but it was supported unanimously in this place. The motion required the government to table a report on the findings of the Engage Victoria consultation outlined in the motion in the Legislative Council by 1 September 2022. I was advised by the Attorney’s office just last month that they will not have anything to table on 1 September. The consultation will not have been completed, and they cite that the matter is complicated and that they would prefer it be done properly instead of being half-baked. Whilst I tend to agree, it has also been 4½ months since this motion passed the chamber, and it was five months prior to that that the VLRC sex offences report came out. I hope, regardless of whether I am in this place or not next term, that this reporting option happens and it happens as soon as possible to encourage more survivors to come forward. Lastly, while we may not agree with everything in the VLRC sexual offences report, overwhelmingly we are supportive of their work and their recommendations. Let us not forget that the government have only committed to implementing a handful of the 91 recommendations. The VLRC’s 2016 report into similar matters had many recommendations implemented, but it took until this year to implement others, only due to the advocacy of Derryn Hinch’s Justice Party. I hope the same does not happen with this 2021 report. The latter report also recommended a grab and drag offence. I am grateful for the recommendation, as you would have heard me say last week. The government has been avoiding making a commitment to this particular offence for the time being, and I hope this will come to fruition next year. Given that it had the endorsement of every single party in this chamber bar the government, I think it was well supported—not to mention the 100 000-odd people who signed the petition calling for this loophole to be fixed. In summary, we welcome the contents of this bill and hope to see more recommendations of the report acquitted as soon as possible to assist victims of sexual assault get their justice. I commend this bill to the house.


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