I rise today to speak on the Justice Legislation Amendment (Supporting Victims and Other Matters) Bill.
I won’t dive into each of the areas this Omnibus Bill seeks to change, but I want to put on the record our absolute support for these following general reforms:
1. Changes that allow prison officers to open inmates mail, scan it and pass on the scanned copy to reduce contraband and drugs getting into the prisons;
2. The ability for the Chief Magistrate to delegate decision-making powers to enable VOCAT to get through its backlog of claims
3. The clarity that Victoria can continue to detain those who are an ongoing terrorist threat under the Commonwealth High Risk Offender Scheme
4. Changes to WorkCover to not disadvantage anyone who may have otherwise had their claim reduced because of a reduction in hours from COVID-19
5. Reforms to the legal threshold in defamation cases to ‘even out the playing field’ and;
6. Fire services reforms, to establish immunity and legal coverage for Forest Fire Management firefighters in the case they need to fight a fire in a different area to which they’d usually operate. This is especially essential to legislate before Summer.
All of these reforms are easy to support in my opinion. But what we’re really here to debate, I think, are the reforms to the Judicial Proceedings Report Act.
Put simply, you are lifting one gag (that should never have existed), but putting another firmly in place. I know those opposite will argue that ‘this law has existed for decades’, as was made clear in the Government’s media release, but without one prosecution in its existence, we are making this law absolute and quite literally putting in a barrier for families which has not existed prior.
Further, as many will be quoting today, Judge McInerney made it abundantly clear a number of times in determining a case recently heard that a gag on reporting deceased sexual assault victims frankly did not exist. It was further acknowledged by His Honour that the DPP held an opposing view on this matter of law, but he re-iterated his disagreement with that view.
If our judiciary can’t even agree on this portion of the Bill, what hope have we got? It is clear that this area needs further work and additional consultation with all key stakeholders.
I can’t discuss the JPRA changes without first mentioning Nina Funnell and her excellent work. When she approached the Attorney-General’s office back in April, she was determined to have this legislation changed.
And she fought for many months, created GoFundMe pages and persevered doing unpaid work for survivors and trying to change the law for their benefit. Derryn Hinch’s Justice Party has done and will continue to work with a number of advocates who support sexual abuse survivors; it’s at the heart of our party and so we know the amount of unpaid therapy, legal help and general support these people give without expecting a thing in return. It’s admirable and inspiring.
On the gag order that will be lifted, again, there’s no hesitation to support this. We want survivors to have their name and their story back in their own hands. We want them to feel empowered to share what happened to them and possibly encourage others to come forward and break down the stigma that being a survivor is something anyone should be ashamed of. This is also essential for many in their recovery.
I’d like to take a moment to thank the Attorney-General’s staff for giving myself and Ms Maxwell time to ask (plenty of) questions about this Bill and to advocate on behalf of the many survivors who contacted our offices with concern. Your time has been appreciated.
I can’t detract from the pain and suffering many survivors have gone through unnecessarily this year to not only understand this new, complex legislation but to fight to remove it. But we look forward to the day all survivors can say their name, share their story and be proud of what they have been able to overcome. The deceased victims element though, in the eyes of our party, is anything but a win for the their families and the overall survivors of sexual assault community.
I’m grateful that some level of consultation was undertaken before the introduction of this Bill, but unfortunately it wasn’t in all the areas it perhaps should have been.
This law will require families of deceased victims to apply to the court for permission to name their loved one in the context of mentioning their capacity as a sexual assault victim.
I see 3 main problems with this intended process – time, cost and trauma:
1. Firstly, the Time to go to court – despite reassurances from the Government that this court process for survivors to name themselves generally takes a week (or maybe 2 weeks), I can confirm that this has not been the case for many – if any – cases. As you can imagine, given the additional factors involved in cases of deceased persons including the views of any relevant family members (after establishing what even constitutes ‘family’), the conflicting familial opinions, the views of the deceased whilst they were alive and much more, hearings will be required which already takes us beyond this 2 week timeframe.
Ashleigh Rae is a sexual abuse survivor and without reducing the trauma she experienced, her case from a legal perspective is quite straightforward. What I mean by this, is that she is a fierce advocate and so her experience is very public, yet it still took her a month to get her court order granted to name herself. My office knows of a case that has been waiting since July for a court decision to name themselves and a court case which wrapped up last week that started in June. As you can see, it’s absolutely wishful thinking to believe that court orders for families to name deceased loved ones will be granted within 2 weeks.
2. The second problem with this intended process are the costs to go to court or to navigate the legal process – it’s no secret that going to court costs a lot of money and this law change on deceased victims is a lawyers’ picnic. It’s true that there are no application costs, but legal help is needed to lodge these applications, especially for anyone unfamiliar with the court system.
The argument that everyone has the opportunity to use publicly funded legal services such as Victorian Legal Aid or the Women’s Legal Service is not entirely true. Yes, anybody can call them and ask questions but in complex matters, where you need a lawyer to assist you, unless you’re successful in obtaining a grant – which is again, another very difficult and time-consuming process – then you’ll need to reach into your own pocket.
Nina Funnell estimates the 12 cases that #LetUsSpeak crowd-funded have each cost between $2,000 and over $20,000. This is huge money to spend in order to access what should be a human right. Nina has been on the ground at many of these cases and “confidently” estimates that where a deceased victim is involved, court costs will most likely sit above $20,000.
Ashleigh Rae – who I mentioned before – tried to access both VLA and Womens Legal. VLA referred Ashleigh onto a law firm who told her they “don’t have the professional expertise” to deal with her case and Women’s Legal quite literally did not answer the phone on neither their metropolitan or regional lines. She suggests a call-back service, an online chat or an email address would be helpful for survivors to access assistance.
3. The third problem I see is with this is the trauma associated with court – if you are a survivor and have been through a court process, the chances are you never want to step foot back into court again.
I’m not too sure how many of you in this place have spent time in the courts, but I certainly have. It is not a place that anyone really wants to go unless they have to, and it is often the place where you go when you are at a very low point in your life. Why put survivors and their families through an additional court trauma process?
The fact that as a legislature we will be requiring families of victims to enter a process that is difficult-to-navigate and traumatic in a variety of ways is so disappointing.
In the case of deceased victims’ families, how complex and traumatic will things get when the abuser is someone from within the family? And I know the rebuttal to this will be that the perpetrators’ views are expressly not taken into account by a court, but there are many situations where the perpetrator is still supported by the family.
So without necessary court orders, this legislation will do the following:
• It will stop the publication of Jill Meagher’s name when referring to her sexual assault and murder
• It will suppress Masa Vukotich’s name so advocate’s will need to jump through hoops in trying to have disgusting humans like Sean Price locked up forever
• It will undermine all the advocacy work Victoria has strived towards, to show we stand up for sexual assault survivors and those who couldn’t stand up for themselves
What is most frustrating in having to even talk about this Bill right now, is that poor consultation for the deceased victims’ families element. Since its drafting, my knowledge is that an estimated ten families have been spoken to, and I struggle to refer to this as ‘consultation’.
In fact, one of the survivors who fought to name herself was sent six questions as part of the consultation to lift her own gag order. After her answers were sent back, this survivor was asked what she thought about the deceased victims element and her response was “I’m probably not the best person to ask. You should ask the families.” Is this what consultation has become?
And I don’t stand here purporting to know exactly what the ideal law looks like in this space, but how can we amend this law without proper consultation for those whom it affects the most?
After speaking with Michelle Zammit – a defence barrister, who has vast experience in supporting victims of crime – it’s become very clear that we are treating all deceased victims the same, including 2 very distinct situations:
1. Victims who have died (or been killed) in the same incident as their assault occurred, for example Eurydice Dixon or Jill Meagher
2. Survivors who have been assaulted earlier in their life (whether that be historical or more recent) but have died later on
This is important, because victims who die in the same incident where they are sexually assaulted have no chance to express their wishes whereas in the latter, their views can be known without question.
And remember in both circumstances, the opportunity for the survivor AND their families to obtain a suppression order is still available.
As a former SOCIT Detective, I also hold concerns over the red tape and bureaucracy that will now be put in place in undertaking investigations where there has been a sexual assault and murder.
So essentially, here we are debating a really important issue about deceased sexual assault victims’ families that we have been assured in around nine months’ time, we will be debating again to improve it. If that seems frustrating for us as MPs, I can only imagine what it’s like for the survivor community and the loved ones of deceased victims.
I’ve felt myself saying over and over “Why can’t we just wait a few months for proper consultation to take place and then change the law?” And I still don’t have a response to this question. By all means, amend the lifting of the survivors gag law, but don’t put in it’s place another gag law that will likely be changed in the very near future.
Lastly, if anyone thinks all survivors are excited by legislation, you’re wrong. There are victim-survivors who – through this legislation – will be able to be name themselves, but this now comes at the expense of those who are deceased or who inevitably go on to die. And they’re really unhappy about it.
To conclude, despite all of the good things about this Omnibus Bill, we cannot support it. We have been put in quite an impossible position; to ungag living survivors, in order to gag the families of those who no longer have a voice. And we shouldn’t have been put in this position to begin with.
We have always said we would support survivors of sexual assault and as much as supporting this Bill would seem the right thing to do, this is not what they want.
As such, we would like to see this Bill separated with the JPRA amendments relating to the gag on deceased victims’ families removed.
To survivors of sexual assault, I’m sorry this process couldn’t have been more straightforward, because you need your voices back.
But rest assured, you do have some of us in this place that hear you loud and clear, who will always have your back and will always support you.