Additional Comments by Senator Paul Scarr

Introduction

1.1I support recommendations 1 to 3 contained in the Majority Report. I propose a number of further recommendations for the reasons set out in these Additional Comments.

1.2At the outset, I note that I strongly support the intention underlying the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 (the Bill). The policy rationale for the Bill is clearly set out in the Attorney-General’s second reading speech which is summarised at sections 1.14 to 1.25 of the Majority Report.

1.3There have been a number of technical issues raised in relation to the Bill. This inquiry process provides an invaluable opportunity for those technical issues to be considered and resolved prior to debate of the Bill progressing further in the Senate. The Attorney-General’s Department took on notice to further consider the issues raised by Professor Jeremy Gans in his very detailed submission and by the Law Council of Australia.[1] Notwithstanding the fact that the date to respond to questions on notice was close of business 18 April 2024, as at the time of my writing of these Additional Comments (23 April 2024), I am not aware of any response from the Attorney-General’s Department.

1.4The failure of the Attorney-General’s Department to respond to the questions on notice has made the writing of these Additional Comments more problematic. In contrast, both Professor Gans and the Law Council of Australia both managed to respond to the questions on notice and their responses were helpful in the writing of these Additional Comments.

1.5Whilst the turnaround time for responses to the Questions on Notice was short, it is noted that the submissions from Professor Gans and the Law Council of Australia had been published prior to the hearing and the Attorney General’s Department should have reasonably expected that the matters raised by Professor Gans and the Law Council of Australia would be the subject of careful scrutiny by this Committee (as they have been).

1.6The failure of the Attorney-General’s Department to clarify the issues raised during the hearing prior to the Committee finalising its report means that the Committee is left with a situation where it is required to report without the benefit of the Attorney-General’s Department’s response to, among other things, the considerable technical concerns raised by Professor Gans. This is reflected in Recommendation 1 of the Majority Report (which I strongly support). The significance of this recommendation is highlighted by the paragraph of commentary that precedes it (and which I include below for emphasis):

2.142The committee received evidence that demonstrated that the proposal to increase limitations on the admissibility of evidence related to sexual experience could have adverse effects on federal sexual violence proceedings.[2]

1.7Unfortunately, the Committee is left with the situation that this important matter has not been addressed by the Attorney General’s Department prior to the Committee having to consider approval of its report.

1.8I should note that this failure of the Attorney-General’s Department to respond to questions on notice in a timely manner is, in my experience, an aberration–in the vast majority of cases the Attorney-General’s Department does respond in a timely manner and is very helpful in its responses (in fact I mentioned so during the public hearing in relation to this Bill). Further, it may be that there are particular work pressures or other factors which impacted upon the Attorney‑General’s Department’s response. However, if that is the case, there is nothing preventing the Attorney-General’s Department from communicating with the Committee – that may have provided an opportunity for questions to be refined by Senators or better particularised to assist with the speed of response.

1.9I do hope that the Attorney-General’s Department reflects on the above comments which are made in good faith and with all due respect to Department officials who were helpful during the public hearing.

1.10I now deal with a number of further matters.

Agency of the Victim-Survivor – standing to make submissions

1.11The issue of the agency of victim-survivors was considered by the Legal and Constitutional Affairs References Committee in its inquiry into current and proposed sexual consent laws in Australia. The committee reported on 14September 2023.I quote from the Committee’s report:

Victim-survivors’ agency

5.4Agency can be broadly defined as the ability of an individual to actively and independently make their own choices, to shape their own life, to control their behaviours and actions. Sexual violence is a denial of that agency…

5.5Evidence to this inquiry, described elsewhere in this report, demonstrated that it is all too common for victim-survivors to be re‑traumatised by the responses to their assault, exacerbating the trespass on their agency and causing further damage…

5.6The committee is firmly of the view that the agency of victim survivors must be acknowledged and respected at all levels; it must be central to all reforms.

5.7The committee recommends that, in all responses to sexual violence, governments and non-government organisations ensure that the agency of victim-survivors is paramount, actively respected and upheld.[3]

1.12The question of agency has arisen in this inquiry in the context of the Court’s consideration of whether or not to admit ‘sexual experience evidence’.

1.13Full Stop Australia submitted:

The Bill should require witnesses and complainants to be given notice of applications by the defence to submit ‘sexual experience’ evidence and legal standing to challenge such applications. This would promote victims having greater agency and awareness of matters that affect them in sexual violence proceedings. Being less ‘passive’ and having more visibility of Court processes that affect them, could help reduce the sense of disempowerment and retraumatisation so many victims feel in Court.

Currently complainants and witnesses don’t have their own legal representatives in criminal proceedings – whereas the accused has defence counsel, and the prosecution’s interests may not always align with a victim‑survivor’s.Giving complainants and witnesses standing to challenge the admissibility of ‘sexual experience’ evidence would give them a means of challenging dangerous and outdated rape myths and victim-blaming narratives which such evidence can reinforce. As set out above, this continues to re-traumatise victims and deny them justice.[4]

1.14The issue of the agency of the victim survivor was raised by Women’s Legal Services Australia in the context of ground rules hearings:

In our experience, there is often a conflict between the interests of the prosecutor and the victim-survivor, and there is a need for the victim‑survivor to have their own independent advocate who can act on their behalf in ground rules hearings.[5]

1.15In its submission, the National Women’s Safety Alliance stated:

In our submission to the June 2023 consultation, we noted how many survivors feel sidelined by the judicial process and the delegation of the prosecutorial service. Our members have collectively raised the need for Independent Legal Representation (ILR) to be made available to complainants. The ILR operates independently of the prosecutor and prioritises the interest of the complainant including case management, advocacy and liaison…Women’s Legal Services are well placed to provide this specialist assistance with claimants as they navigate the legal system.[6]

1.16Rape and Sexual Assault Research and Advocacy (RASARA) stated:

While RASARA does not condone the admissibility of sexual experience evidence in any form, should proposed s15YCB be enacted, RASARA recommends that the Act should also be amended to include a provision which requires vulnerable adult complainants and children to be immediately granted access to free independent legal representation to represent their interests in the proceedings where an application for leave to admit sexual experience evidence is filed with the court.

As set out in a report recently published by the Victorian Victims of Crime Commissioner, survivors often present with confusion and dismay when they realise, at the outset of the proceedings, that they do not have their own lawyer, and are concerned when they realise that it is not the role of the prosecutor to fundamentally uphold their rights and interests.

As recognised in ss 15YC and 15YCB, the admission of sexual experience evidence is highly likely to lead to ‘distress, humiliation or embarrassment’, it is more important than ever that affected complainants or witnesses have access to their own legal representation where an application for leave is filed.[7]

1.17During the public hearing on 12 April 2024, I also canvassed the issue with MsAngela Lynch, Executive Officer of the Queensland Sexual Assault Network. I quote from the Hansard record:

Senator Scarr: The first [issue] is the legal standing of a victim-survivor to actually make representations to the court with respect to the court’s deliberations as to whether or not to grant leave with respect to sexual experience evidence. Is it the position of each of the witnesses that…legal standing needs to be explicitly recognised in this bill to make sure that the victim-survivor is empowered to give evidence and have someone representing them to give evidence and make submissions with respect to these matters? Ms Lynch, I’ll go to you first…

Ms Lynch: Yes; it would have to be explicit because the usual practice over hundreds of years is that victims-survivors have no standing. It’s the prosecution and defence. It would be a similar approach to counselling records and the protection of counselling records. There’s legislation in Queensland and also in New South Wales that specifically allows the standing of victims to have legal representation and standing – it specifically says ‘has to have legal standing for the judge to hear that perspective’.[8]

1.18During the course of the hearing held on 12 April 2024, I took the opportunity to put the above arguments to the Law Council of Australia.[9] Further, I note that Senator Ghosh also engaged in a helpful line of questioning in relation to the same issue.[10]

1.19In their response to Questions on Notice, the Law Council of Australia stated:

The Law Council supports consideration of measures that provide vulnerable witnesses, including victims and survivors of sexual assault, with full and supported access to the justice system, including through specialist and trauma informed legal assistance.

As was noted in the hearing, the issue of legal standing and representation for complainants in substantive criminal proceedings would be a significant shift in the Australian criminal justice system. It is not without precedent, since complainants are routinely represented in New South Wales on applications for the issuing of subpoenas, and about access to and the admissibility of materials the subject of sexual assault communications privilege. The Law Council supports consideration of reforms to permit representation of complainants in procedural hearings, in the absence of the jury, in relation to the admissibility of certain types of evidence about the complainant. However, attention should be paid to the impact of reforms on all parties to the proceedings…

The Law Council is aware of calls for reforms that will allow complainants to have a more active role in the criminal justice systems…Importantly, the Terms of Reference for the current Australian Law Reform Commission (ALRC) inquiry into justice responses to sexual violence includes consideration of laws and frameworks about evidence and courts procedures…

The Law Council will consider these issues in the context of the ALRC review. We remain of the view that this is the most appropriate forum (rather than in the narrow context of the Bill) in which to engage with holistic structural questions that have potentially significant implications for proceedings at Commonwealth, State and Territory levels.[11]

1.20At the hearing held on 12 April 2024, witnesses for the Attorney-General’s Department advised:

It was raised with the Attorney-General’s Department, but later in the consultation process. We felt it was a significant issue that would require more time and consultation before we would be able to formalise recommendations on that issue…The department is separately conducting a scoping survey with respect to a potential Commonwealth intermediary scheme. In addition, the Australian Law Reform Commission inquiry in relation to justice responses to sexual violence has also been announced. The position on this occasion was that those questions would be better addressed through those separate processes.[12]

1.21This is an extremely important issue. As the Legal and Constitutional Affairs References Committee stated in its first recommendation in its inquiry into sexual consent laws, agency of victim-survivors is paramount. This principle should apply in the context of complainants having an opportunity to make submissions on sexual experience evidence. Ideally, the issue would have been addressed in this Bill. If not, then it is imperative that the issue be specifically addressed by the ALRC Inquiry and relevant amendments made to the Crimes Act 1914 as soon as reasonably practicable.

1.22The Government request the ALRC to consider amendments to the Crimes Act 1914 (Cth) granting standing to a complainant to make submissions in relation to the admissibility of sexual experience evidence.

1.23Any amendments proposed by the ALRC under Recommendation 1 be incorporated into a bill for the consideration of Parliament as soon as reasonably practicable and, in any event, within six months of such amendments being proposed by the ALRC.

Prohibition of Cross-Examination by self acting Defendants

1.24As indicated in the Majority Report, the Inquiry received strong submissions that there should be a prohibition against unrepresented accused questioning complainants in sexual violence cases of any type.[13] The Law Council of Australia noted that there are examples of legislation that ban such cross-examination and require the appointment of a lawyer.[14]

1.25As noted in the Majority Report, the Attorney-General’s Department said it would consider a prohibition and provide advice to government.[15] The Attorney‑General’s Department referred to Division 3 of the Crimes Act 1914. It is noted that section 15YF prohibits cross-examination of child complainants. However, section 15YG provides that leave may be granted by a court to permit cross-examination of vulnerable adult complainants by a self-represented defendant.

1.26On the basis of the evidence received by the Committee, the Bill should be amended to prohibit cross-examination of a vulnerable adult complainant by a self-represented defendant, as is the case with a child complainant.

1.27The Bill be amended to prohibit unrepresented defendants from being able to cross-examine complainants in sexual violence cases with appropriate provision made for defendants to be represented by a lawyer for the purpose of any such cross-examination.

Audio-only recording of evidence

1.28The Law Council of Australia made submissions in relation to the advantages of video evidence over a simple audio recording.[16]

1.29During the course of the hearing on 12 April 2024, I put the concerns of the Law Council of Australia to witnesses representing the Queensland Sexual Assault Network, National Women’s Safety Alliance and the Women’s Legal Service Australia. I refer to the following interchange:

Senator Scarr: I’m interested in the views of our witnesses about the submission from the Law Council of Australia…I’ll read the recommendation that they made:

If a recording is to be used as a witness’s evidence-in-chief…it should be video recorded and not merely an audio recording…If Parliament considers that audio-only evidence in chief is permissible, the Bill must clarify that this is reserved for exceptional circumstances where there is a significant risk of re-traumatisation due to the use of the video.

Ms Lynch, do you have a view?…

Ms Lynch: I think the provision by the Law Council of Australia is probably consistent with what happens at a state level anyway…A lot of police have videos now, but, in case there was some problem with that video when they went to the crime scene and all you could hear was audio, there needs to be provision…I’d maybe not say exceptional, but, for some other circumstances that leave could be granted…

Ms Freidin: …We agree with the comments made by Angela Lynch. The exception proposed by the Law Council seems reasonable, but we agree its maybe not in exceptional circumstances…

Ms Berney:I concur and agree with the Women’s Legal Services and QSAN.I think that what’s being proposed sounds quite reasonable, but again, to echo [Ms Freidin’s] comments, we need to ensure that we are always centring on what is best and healthiest for victim-survivor complainants…

Ms Snell:I would just echo those comments.It does sound reasonable, but as QSAN and Women’s Legal Services Australia have commented, perhaps we should not limit it to exceptional circumstances, because it is important that there is that alternative option…[17]

1.30Whilst the above witnesses were open to an amendment in this regard, it should be noted that they only had the opportunity to consider the issue in the context of the public hearing.

1.31Subsequent to the hearing, the Law Council of Australia, in its response to Questions on Notice, provided further commentary in relation to the issue and proposed some amendments to the Bill.

1.32In particular, the Law Council of Australia proposed that a subsection be inserted after proposed subsection 15YDD(1) along the following lines:

15YDD(1A) For the purposes of subsection (1), an audio-only recording may only be permitted at an evidence-recording hearing if:

(a)The use of a video-recording poses an unacceptable risk of re-traumatisation for the vulnerable person; and

(b)The use of the audio-only recording is necessary in the interests of justice.[18]

1.33In relation to audio-only statements to police as evidence-in-chief, the Law Council of Australia also proposed the following amendment be inserted after subsection 15YM(1):

15YM(1AA) For the purposes of subsection (1):

(a)The admission of an audio-only recording as evidence in chief may only occur in exceptional circumstances, where it is in the interests of justice to do so.

(b)Exceptional circumstances include where the use of video-recording equipment poses an unacceptable risk of re-traumatisation for the vulnerable person.[19]

1.34The inclusive definition of exceptional circumstances may address some of the concerns raised by the witnesses at the inquiry. In any event, the proposal of the Law Council of Australia (or some modification of it) warrants close consideration.

1.35That the Bill be amended to provide additional safeguards around the use of audio-only recordings in the form proposed by the Law Council of Australia or in some other form to address the issues raised by the Law Council of Australia with respect to the use of audio-only evidence.

Other technical issues

1.36As considered in the Majority Report, there were a number of concerning technical issues raised by Professor Gans in both his submission and evidence to the inquiry.[20]

1.37Following the public hearing, Professor Gans provided a response to questions taken on notice. In his response, he referred to the provisions contained in the Criminal Procedure Act 2009 (Vic).[21]

1.38As stated in the introductory comments to these Additional Comments, the issues raised by Professor Gans need to be explicitly addressed by the Attorney‑General’s Department. Further, there were a number of additional proposed amendments made by the Law Council of Australia which require consideration.[22]

1.39The Attorney-General’s Department provide a response to the concerns raised by Professor Jeremy Gans and further consider the additional recommendations made by the Law Council of Australia (not dealt with elsewhere in the Majority Report or otherwise in these Additional Comments) and consider further amendments to the Bill to address the concerns raised.

Conclusion

1.40Subject to recommendations 1 to 3 in the Majority Report and recommendations 1 to 5 in these Additional Comments being addressed, the Bill be passed.

Senator Paul Scarr

Deputy Chair

Footnotes

[1]Ms Susan McKeag, Assistant Secretary, Criminal Law Policy Branch, Attorney-General’s Department, Committee Hansard, 12 April 2024, p. 29.

[2]Refer to paragraph 2.142 of the Majority Report.

[3]Senate Legal and Constititonal Affairs References Committee, Current and proposed sexual consent laws in Australia, September 2023, pp. 99–100.

[4]Full Stop Australia, Submission 28, pp. 4–5.

[5]Women’s Legal Services Australia, Submission 29, p. 10.

[6]National Women’s Safety Alliance, Submission 15, pp. 5–6.

[7]Rape and Sexual Assault Research and Advocacy, Submission 18, p. 7.

[8]Ms Angela Lynch, Executive Officer, Queensland Sexual Assault Network, Committee Hansard, 12April 2024, p. 13.

[9]Senator Paul Scarr, Committee Hansard, 12 April 2024, pp. 24–25.

[10]Senator Varun Ghosh, Committee Hansard, 12 April 2024, pp. 26–27.

[11]Law Council of Australia, Answers to questions on notice, 12 April 2024 (received 19 April 2024).

[12]Ms McKeag, Attorney-General’s Department, Committee Hansard, 12 April 2024, p. 28.

[13]Refer to sections 2.113 to 2.117 of the Majority Report.

[14]Refer to section 2.117 of the Majority Report.

[15]Refer to section 2.118 of the Majority Report.

[16]Refer to sections 2.52 to 2.54 of the Majority Report.

[17]Ms Lynch, Queensland Sexual Assault Network, Committee Hansard, 12 April 2024, p. 15; Ms Lara Freidin, Executive Officer, Women’s Legal Services Australia, Committee Hansard, 12 April 2024, p.15; Ms Katherine Berney, Executive Director, National Women’s Safety Alliance, Committee Hansard, 12 April 2024, p. 15; Ms Liz Snell, Member, Sexual Violence Committee, Women’s Legal Services Australia, Committee Hansard, 12 April 2024, p. 15.

[18]Law Council of Australia, Answers to questions on notice, 12 April 2024 (received 19 April 2024).

[19]Law Council of Australia, Answers to questions on notice, 12 April 2024 (received 19 April 2024).

[20]Professor Jeremy Gans, Private capacity, Committee Hansard, 12 April 2024, pp. 21–27.

[21]Professor Gans, Answer to spoken question on notice, 12 April 2024 (received 12 April 2024).

[22]See: Law Council of Australia, Submission 35.