Chapter 2Key issues
2.1While all submitters to the committee’s inquiry supported the bill, some proposed amendments to strengthen some of its provisions.
2.2Those submitters argued that the bill could be strengthened by:
removing barriers to evidence recording hearings so that all vulnerable persons are able to undertake one if they so wish;
preventing defendants from being present at an evidence recording hearing;
allowing audio-only evidence to be admitted in all circumstances;
making evidence related to sexual reputation and experience inadmissible;
providing support to vulnerable persons who are not only physically disabled; and
establishing ground rules hearings through the provision of witness intermediaries.
2.3Rape and Sexual Assault Research and Advocacy (RASARA), for example, argued ‘that, unfortunately, the proposed reforms don’t go far enough to protect vulnerable complainants’. It stated that while the bill aims to reduce the risk of re-traumatisation of victim-survivors, ‘in reality, anecdotal evidence from those with lived experience suggests retraumatisation is no longer a risk but is actually a given’.
2.4Full Stop Australia (Full Stop) agreed that victim-survivors may be traumatised by the experience of pursuing justice through the legal system. It reported that victim-survivors sometimes ‘tell us that going through court may in fact feel like more trauma than they ever expected from the original offence’.
2.5A woman with lived experience of sexual assault and the legal system informed the Centre for Women’s Health Research (CWHR):
I am currently fighting numerous sexual abuse charges against several people. This is a long drain-out [sic] process which is preventing me from getting on with life and enjoying my life.
2.6Another woman similarly spoke of the emotional distress that resulted from engaging with the legal system:
I was sexually, mentally & physically abused by mothers ex-boyfriend from the age of 11-16 years. That is all going through court now & alot [sic] of emotional problems are steming [sic] from it.
2.7This trauma can emerge years after experiencing the sexual violence and some time after engaging with the legal system:
I experienced sexual abuse as a child (5-12 years of age) and went to court regarding this when I was 20. I thought court was the answer to dealing with all this and though my issues were “solved”. Last [year] I found myself standing in the place where some traumatic events occured [sic] and had a breakdown. Since then I have had flashbacks – and discovered that I had only “remembered” certain events. Ones that were too painful (e.g rape) were buried. I have experienced anxiety, depression and flashbacks related to these events and have been seeing a psychologist weekly since last October.
2.8Another victim-survivor referred to the lack of support provided to victim-survivors and their families:
The legal system is lacking in assistance for women’s issues. Violect [sic] to women is still not recognised as an important issue and there are little control or protective measures in place. Ongoing support is lacking…My daughter was raped and stalked frequently…The offender was found not guilty on a “legal technicality”. Victims and family members of the victim have little resources ot [sic] use for support during and after court appearances.
Statistics related to sexual violence
2.9Some inquiry participants shared statistics related to women’s experiences with sexual violence in Australia.
Incidence of sexual violence
2.10The Queensland Sexual Assault Network (QSAN) shared statistics about the incidence of sexual violence perpetrated against women in Australia:
Recent research by ANROWS found that, in Australia, 51 per cent of women in their 20s, 34 per cent of women in their 40s and 26 per cent of women in their lates 60s and 70s were subjected to sexual violence. It is estimated over 46,000 sexual assaults, both reported and unreported, occur against females in Queensland each year, that being over 890 each week. Those figures are from 2021, and they would have increased in 2024.
2.11The Centre for Women’s Safety and Wellbeing (CWSW) submitted that, according to estimates, ‘more than 200,000 Australian adults had experienced sexual assault in the last twelve months, and almost two million Australian adults have experienced at least one sexual assault since the age of fifteen’.
2.12The Youth Affairs Council of South Australia (YACSA) similarly indicated that young people ‘are the most likely cohort to be victimised and perpetuate sexual violence’. There is also evidence that understandings of consent among young people are not improving.
2.13Anti-Slavery Australia reported that according to a:
…landmark study conducted on child maltreatment in Australia, over two-thirds of the 8,500 Australian participants aged between 16-65 years were found to have experienced maltreatment in childhood, with 28.5% experiencing sexual abuse and almost 40% exposed to two or more of the five child maltreatment types (i.e. physical, sexual and emotional abuse, neglect and exposure to domestic violence).
2.14Another study of:
…1,945 Australian men, found that around 1 in 6 men reported having sexual feelings towards children and around 1 in 10 men had sexually offended (either online or offline) against children. In total, the study found, almost 1 in 5 men surveyed have sexual feelings for children and/or have offended against children.
Sexual violence reporting
2.15Some inquiry participants provided information on the rate of sexual violence reporting.
2.16Body Safety Australia reported that, according to the Australian Bureau of Statistics (ABS), there were ‘over 32,000 reports of sexual assault in 2022’. Of those reports, ‘[a]lmost 85% were [from] women, 46% were from people under the age of 18 and 38% were girls under 18’. In the same year, ‘just over 9,500 sexual violence offenders [were] recorded, 93% were males and 15% were under 18’.
2.17Full Stop shared data from the ABS, which indicated that ‘only eight per cent of women who’ve experienced sexual violence in the last 20 years reported it to police’.
2.18Most victim-survivors of child sexual abuse who report their experience do so several years after the abuse occurred. According to the Survivors and Mates Support Network (SAMSN), on average women ‘disclosed at 20.6 years and males at 25.6 years after the abuse, with the majority making their first disclosure in adulthood, on average 32 years after the abuse’. There is evidence that ‘shows that 99% of men and 85% of women have not reported the child sexual abuse to police at all’.
2.19The National Women’s Safety Alliance (NWSA) noted that not only is sexual violence underreported, there are also low ‘[c]onviction rates for sexual assaults and related offences’. Data from the ABS indicated:
…that only 40 per cent of formal proceedings end in guilty verdicts. Conversely, the conviction rates for property crimes and drug and weapons offences all sit higher than 83 per cent. But this data only tells one-half of the story, because we know that attrition rates are high and we know that many victims-survivors do not formally report. Inconsistent data between police, the courts and advocacy groups means the full picture and end-to-end survivor [sic] the journey are extremely difficult to map.
2.20According to Body Safety Australia, ‘for each sexual assault conviction in Australia there are around 80 sexual assaults occurring where the offender is not reported, investigated, or convicted’.
2.21RASARA explained that one reason for the low rate of reporting is that victim‑survivors ‘know that the system is stacked against them’.
2.22The NWSA suggested that the prevalence of ‘rape myths’ and the concern of victim-survivors that they will not be believed is another reason for the low reporting rate.
Evidence recording hearings
2.23Many inquiry participants supported the introduction of evidence recording hearings.
2.24Full Stop suggested that evidence recording hearings would provide victim-survivors with ‘opportunities to reduce trauma associated with giving evidence throughout the criminal justice process’.
2.25Australia’s National Research Organisation for Women’s Safety (ANROWS) prioritised the choice of victim-survivors to decide to provide evidence at an evidence recording hearing if they chose to do so. It indicated that some vulnerable persons, ‘particularly those who have experienced technology‑facilitated abuse’, may be uncomfortable with participating in an evidence recording hearing and decline to exercise that option. Some others may prefer to use traditional means of providing evidence ‘as part of their healing and recovery’.
2.26The National Family Violence Prevention and Legal Service Forum (NFVPLSF) supported the purpose of the evidence recording hearing, which is to reduce the risk of re-traumatising vulnerable persons by not requiring them to provide further evidence unless deemed necessary by the court. It suggested that clarity is required around how that ‘might influence the rights of the accused to thoroughly challenge the evidence and material presented against them at trial, which is fundamental for addressing the case made against them’.
2.27Associate Professor Martijn Boersma suggested that there should be standardised procedures for evidence recording hearings and those procedures should:
…outline every step of the process, to ensure consistency, fairness, and the protection of vulnerable witnesses. Importantly, strict protocols should be in place for the handling, storage, and access to recorded evidence. Secure digital storage solutions with encryption should be adopted.
2.28In the view of NFVPLSF, that provision ‘raises particular concerns for Aboriginal and Torres Strait Islander individuals’. Those concerns relate to the:
‘cultural and linguistic barriers in legal settings’ experienced by Aboriginal and Torres Strait Islanders;
overrepresentation of Aboriginal and Torres Strait Islanders in the criminal justice system; and
‘heightened risk of miscarriages of justice’ that are faced by Aboriginal and Torres Strait Islander people.
2.29Those concerns could be exacerbated by an inability to ‘fully challenge evidence at trial’.
2.30The Attorney-General’s Department (AGD) stated that evidence recording hearings would only be undertaken ‘if the court is satisfied that it is in the interests of justice’. In considering whether it is in the interests of justice:
…the court must also consider if each party has sufficient time to prepare, the availability of the prosecutor, the defendant’s legal representative / the defendant, the circumstances and wishes of the vulnerable person and the availability of the court and other facilities. The purpose of these provisions is to preserve the court’s discretion while highlighting considerations relevant to ensuring fairness with regard to the circumstances of the particular matter.
Removing barriers to evidence recording hearings
2.31Voices of Influence Australia (Voices of Influence) submitted that ‘[e]vidence-recording hearings are essential in ensuring equitable access to justice for individuals with intersectional backgrounds’. Those hearings should focus ‘on empowering vulnerable persons by providing necessary support and resources to make informed decisions while minimising the trauma that may be incurred from exposure to the criminal justice system’. Court officials should receive mandatory training to ensure that trauma-informed approaches are adopted and practiced.
2.32The Advocate for Children and Young People (NSW) (ACYP) supported the introduction of evidence recording hearings. It argued:
The space in which the video is recorded needs to be made as safe as possible for the child or young person to attend…children and young people should be provided the opportunity of choice in the most comfortable setting for discussions and the presence of a trusted person in the room.
2.33Children and young people should also be given choice in determining ‘who can be present to provide them with support’ during an evidence recording hearing. People providing support to children and young people should be properly trained in ‘how to perform this role most appropriately during the pre‑recording of evidence’. Children and young people must also be supported after the evidence recording hearing, including by offering them with ‘effective referral points to social services and/or programs aimed at prevention, support through legal or judicial processes and the follow-up of instances of child maltreatment’.
2.34Sexual Assault Services Victoria (SASV) argued:
…that all victim survivors of sexual violence should have the right to either opt to appear at trial or pre-record all their evidence…A lack of available infrastructure should not be a barrier. Investments and arrangements should be made so that the necessary infrastructure and facility requirements are available.
2.35In addition to that, complainants should be provided with the opportunity to pre-record their evidence regardless of the ‘challenging logistics involved’. The evidence provided by complainants is ‘often [a] profound, distressing and life‑shifting experience’ and every effort should be made to support them in providing that evidence.
2.36NFVPLSF saw:
…the potential lack of available equipment to be a barrier for Aboriginal and Torres Strait Islander individuals who live in rural, remote, and very remote areas, and that this barrier must be balanced with experiences of re‑traumatisation.
2.37It argued that this and ‘the lack of an obligation for the court to order evidence recording sessions…might prolong the period of uncertainty and stress for the individuals involved, exacerbating the impacts of their vulnerability’.
2.38NWSA was concerned that the bill would mean that ‘a defendant’s decision to waive legal representation…[would determine] whether evidence can proceed as a recorded hearing or not’. It understood that there is state legislation that prevents defendants from personally cross‑examining complainants and that in those situations legal aid is made available to represent the defendant. In its view, federal legislation should adopt similar provisions to prevent defendants from personally cross‑examining complainants.
2.39CWSW stated that all victim-survivors who request an evidence recording hearing should be granted one.
2.40The AGD explained that the court may ‘adjourn the proceedings to a place that is equipped with facilities for the evidence recording hearing’. That would:
…allow the court sufficient time to arrange facilities to undertake the evidence recording hearing, and to ensure that no parties to the proceeding are disadvantaged through the holding of the evidence recording hearing.
The presence of defendants at evidence recording hearings
2.41Some inquiry participants objected to the possibility of defendants being present at evidence recording hearings.
2.42SASV was ‘strongly opposed to a blanket provision allowing defendants to be present at recording hearings’. It argued that defendants should be treated in the same manner as juries, that is they should ‘not be present at a pre-recording hearing but would view the recording after the fact’.
2.43An alternative approach would be to ‘allow the defendant to be present upon prior agreement from the complainant (who should have standing on this matter and access to legal advice)’.
2.44SASV argued that a complainant could be significantly traumatised by ‘know[ing] that at the very moment that they are giving their evidence, they are being observed, either behind a partition or remotely, by the defendant’. Allowing a defendant to observe the complainant giving their evidence is, in the view of Sexual Assault Victoria, ‘completely unnecessary and undoes an important benefit of pre-recording evidence’.
2.45NFVPLSF similarly informed the committee that there may be cultural considerations associated with who is present at evidence recording hearings. It submitted:
…that in deciding who is permitted to be present at the evidence recording session of an Aboriginal and Torres Strait Islander individual, the court should prioritise cultural safety and have regard for cultural considerations.
2.46The AGD explained that during ‘an evidence recording hearing the vulnerable person must not be able to see the defendant’. There must be opportunities for ‘the defendant to engage with the vulnerable person’s evidence in a manner which is as close as possible to a regular proceeding’. To adhere to a regular proceeding as much as possible, ‘the defendant must be able to both see and hear (if the vulnerable person is giving evidence remotely), or hear (if the vulnerable person is in the same room) the vulnerable person as they are giving their evidence’.
Audio-only evidence recording hearings
2.47The Law Council of Australia (Law Council) expressed reservations ‘about the practical implications of audio-only recordings being used as evidence-in-chief in proceedings’. Those reservations were based on the ‘seriousness of the offences…and the potential for this to distort the adversarial process that underpins our criminal justice system’.
2.48Liberty Victoria shared those reservations and stated that it was ‘particularly concerned’ by the amendment that would allow the admission of audio-only recordings of evidence provided by vulnerable witnesses. It opined that the amendment would be ‘a dramatic change and a significant erosion of an accused person’s right to a fair trial’.
2.49According to Liberty Victoria, the admission of pre-recorded evidence in chief (EIC) interviews ‘can cause significant difficulties at trial’. One of those difficulties is the lack of training provided to investigators, which ‘can result in leading questions and the adducing of evidence that is irrelevant and/or unfairly prejudicial’. In some instances ‘significant resources…[are expended] to consider edits and have the interview placed before the jury in a properly admissible form’. Liberty Victoria also pointed out that EIC interviews are usually ‘made contemporaneously with the allegations…but an accused person does not have the opportunity to test the evidence through cross-examination at trial for years’. The passage of time ‘places an accused person at a significant forensic disadvantage given, amongst other things, the fading of memory and the prosecution will understandably rely on the more proximate evidence as being superior’.
2.50Liberty Victoria submitted that the admission of audio-only evidence ‘would be a step too far’ due to the non-verbal elements of the evidence that the court would not be privy to.
2.51Tasmania Legal Aid (TLA) noted that the bill would prohibit the defendant and their legal representatives from being provided with a recording of the evidence recording hearing. It suggested that this prohibition ‘should extend to all parties in the proceeding’. Providing a recording, which could later be ruled into evidence, to the prosecution and not the defendant would not support transparency or procedural fairness. TLA supported an amendment to the bill that would exclude both parties ‘from possessing a video or audio recording of the original evidence’.
2.52The Law Council expressed concerns about the admission of audio‑only evidence. It suggested:
Pre-recording and recording are both options designed to minimise the trauma of waiting for the trial date and of having to give evidence at a re‑trial. In the extraordinary case where a witness will be severely traumatised by having their interview or testimony video-recorded, the witness can choose not to be recorded at all.
2.53The Law Council explained that removing the visual component of the evidence would remove:
…the ability for a court to assess a witness’s demeanour, which remains a fundamental aspect of the jury being able to evaluate a witness’s credibility and reliability. To remove this component from a witness’s evidence‑in-chief is a significant departure from what is required for the fair trial of an accused person.
2.54The Law Council recommended that if audio-only evidence is to be permitted, ‘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 video’.
2.55Other inquiry participants supported the provision that would allow for the admission of audio‑only evidence.
2.56RASARA ‘support[ed] retaining the potential for simply audio recordings to be admitted, perhaps with the note that best practice would be to have audio and visual’. It argued that the ability to admit audio-only evidence should ‘be retained’ as there may be instances where it is not possible to obtain visual recordings.
2.57The AGD advised that the option to admit audio-only recordings was drafted ‘in response to stakeholder feedback and particularly as has been described, where there was a specific concern that the filming would create specific additional trauma to the witness’. It indicated that the option for an audio-only in ‘exceptional or specifically relevant circumstances’ should be retained.
Evidence related to sexual reputation and experience
2.58Several submitters welcomed the amendment that would make evidence related to sexual reputation inadmissible. Full Stop indicated that the inadmissibility of that evidence would contribute ‘to a more victim-centric justice system’.
2.59Some inquiry participants questioned how the bill could reduce the risk of re‑traumatisation of victim-survivors of sexual violence while also allowing the admission of evidence related to sexual experience.
2.60YACSA reported that ‘[v]ictim-survivors regularly have their credibility aggressively undermined through cross-examination and jury direction. This is a traumatising experience, and one that research shows is a key driver of low reporting rates for sexual violence offences’.
2.61ANROWS did not support the continued admissibility of sexual experience evidence as it risks perpetuating myths and misconceptions. It explained that adverse ‘attitudes towards gender inequality, mistrust of women and victim-blaming attitudes persist in Australia…women who are perceived as being ‘too sexual’, or even just sexual at all, can be targets of victim-blaming attitudes’.
2.62RASARA argued that the purpose of the bill is to reduce the risk of retraumatisation of victim-survivors of sexual violence. In its view, the admission of sexual experience evidence is not a ‘trauma-informed measure’. RASARA suggested:
…that under no circumstances is the sexual experience of a person (complainant or witness) in a child or vulnerable adult proceeding, relevant. The mere fact of an application being made to adduce such evidence, at best would be distressing, humiliating or embarrassing to the complainant or witness but at worst would serve to retraumatise that person and cause actual mental harm. The admission of that evidence is tantamount to victim‑blaming. The criminal justice system as it relates to survivors of sexual assault is already retraumatising—it is unnecessary and unethical to make it more so, especially where the purpose of the Bill is to implement trauma-informed measures.
2.63Full Stop agreed that evidence related to sexual reputation should be ‘inadmissible in all circumstances’. In its view, such evidence ‘has no probative value and is usually used in ways that undermine and traumatise victims‑survivors [sic]’.
2.64Full Stop also argued that there should be ‘increased restriction on the admissibility of sexual experience evidence’. In its view, evidence related to sexual experience would ideally not be admitted as that would assist in creating ‘courts that deliver justice and that aren’t open to abuse for matters that have no probative value’.
2.65Full Stop explained that sexual experience ‘evidence is often—and we see it used most often—based on rape myths that are irrelevant and unhelpful in the criminal justice system’.
2.66Women’s Legal Services Australia echoed that view by stating:
…it’s really important that we are doing as much as we can to restrict evidence of sexual experience. It’s very important that evidence of sexual reputation be completely inadmissible. We have known for a very long time that it really has no evidentiary value. That was recognised back in 1991 and probably prior to that as well. So it’s really important that that is removed, because it does reinforce rape myths and it does reinforce victim blaming.
2.67Voices of Influence suggested ‘that the risks of myths and misconceptions associated with sexual experience evidence are pervasive and judges are not immune to them’. Women’s Legal Services Australia similarly argued that juries are not immune to those ‘prejudices’.
2.68With You We Can submitted that leave is often granted for the use of sexual history evidence:
Despite the compelling justifications for restrictions on the use of sexual history evidence, the defence can apply for leave to question the complainant. Leave has been found to be consistently granted, particularly when the accused is known to the complainant.
2.69That has the effect of, in some cases, enabling the defendant to seek leave without any genuine intention to use it, solely ‘to intimidate and encourage [the] attrition of the complainant’. In state and territory proceedings, defendants sometimes:
…apply for leave knowing there is great variance among judges as to how they exercise their discretion because any evidence relating to a victim’s prior sexual history can reduce the likelihood of successful conviction.
2.70With those risks in mind, With You We Can recommended that the bill be amended to ensure that ‘all sexual experience of the complainant be deemed as inadmissible evidence, without exceptions/applications for leave.
2.71RASARA noted that the bill ‘would allow evidence of both sexual reputation and sexual experience of adult witnesses to be admitted’. It stated that the bill would be ‘generally in line with current State and Territory legislation in allowing sexual experience evidence to be admissible in limited circumstances’. RASARA argued that ‘the Commonwealth should not blindly follow suit’ and:
If the Bill made sexual experience evidence inadmissible in the same way as sexual reputation evidence, the Commonwealth jurisdiction would have the opportunity to take the lead in fully protecting and preserving the interests of victim-survivors of sexual assault, in a system which is weighted towards preserving the interests of the defendant in such proceedings and in which the vast majority of defendants are not convicted.
2.72The Law Council supported making evidence related to sexual reputation inadmissible as it ‘would bring the Commonwealth provisions into line with other jurisdictions in Australia’. Similarly, the amendments related to the admission of evidence related to sexual experience ‘would bring the Commonwealth provisions into line with most other jurisdictions in Australia’.
2.73The amendments would, in the Law Council’s view
…apply more restrictive rules to admissibility than currently exists in any other Australian jurisdiction. This is due to:
a mandatory requirement that the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence; and
a restriction of admissibility only for evidence of sexual activity with the defendant in the proceedings.
2.74Other submitters were of the view that there are instances where evidence related to sexual reputation has probative value.
2.75For instance, the Legal Services Commission of South Australia opined:
…that there are likely to be instances where evidence of sexual activity with individuals other than the accused may be considered to have highly significant probative value for the defence…rather than simply forbid cross‑examination, a degree of judicial discretion should be allowed in line with the particular circumstances of the case.
2.76Liberty Victoria indicated that the removal of a court’s discretion in deciding whether to accept evidence related to a person’s sexual experience ‘has the potential to cause a miscarriage of justice’. It explained ‘that judges take their responsibilities very seriously when it comes to the potential admission of sexual history evidence, and while it should be a high bar, it should not be an impossible one’.
2.77The Aboriginal Legal Service (NSW/ACT) Ltd (ALS) similarly suggested that the ‘provision will not only properly cut off evidence regarding sexual activity, but also cut off evidence of sexual inactivity—that being, instances of prior false complaints of a sexual nature’.
2.78NFVPLSF supported the amendments that, in its view, would ‘fortify the criteria applied by the court in evaluating the admissibility of evidence concerning a child’s sexual history’. It suggested that fortification would:
…diminish the likelihood of re-traumatising the vulnerable individual by guaranteeing that such evidence is only permissible when there is a substantial connection to the issue at hand, affording greater protections to the child. Specifically, in relation to Aboriginal and Torres Strait Islander children, we believe these revisions will provide a safer environment for Aboriginal and Torres Strait Islander children to give evidence, encouraging their participation in the legal process.
2.79Professor Jeremy Gans did not support the amendments that would make it more difficult to admit evidence related to a vulnerable person’s sexual experience.
2.80The bill would prevent courts from ever introducing evidence related to a child witness’s ‘experience of any sexual activities with anyone who is not a defendant in the proceeding’. That amendment would prevent the admission of ‘any evidence of the child’s sexual activities with (including sexual abuse by) a person who has not been or cannot be charged with an offence for any reason, or who has been or will be charged in a separate proceeding’.
2.81The bill would also narrow the admissibility of a child’s evidence related to their ‘sexual activities with a defendant in the proceeding – by only allowing evidence of such an activity to be admitted if it occurred or was recent when the alleged offence was committed’. This amendment would place an absolute bar on the admission of any child’s evidence that related to ‘sexual activities that either occurred in the non-recent past or at any point after the alleged offence was committed’.
2.82The bill would not permit the admission of evidence related to a vulnerable adult complainant’s:
…sexual activities with anyone else, including people who were charged or were found guilty or pled guilty in separate proceedings and people who are not charged for any reason, or with the alleged victim’s sexual activities with a defendant in the proceeding in the non-recent past, or after the alleged offence was committed, including alleged abuse that is either uncharged or is or was dealt with in separate proceedings or occurred after or well before the commission of the charged offence.
2.83Professor Gans explained that ‘[s]ome federal crimes require that prosecutors prove that someone other than the defendant engaged in a sexual activity with an alleged victim’. If the bill’s amendments ‘are enacted, the prosecution will be completely barred from proving that at all, and those prosecutions will therefore fail, unless the other person is charged and the charge is considered in the same proceeding’.
2.84Furthermore, ‘[s]ome elements of important federal offences are commonly established by evidence that the alleged victim had sexual activity with an uncharged person’. The amendments would ‘bar federal prosecutors from using this common evidence to prove significant federal crimes, including slavery and child abuse material offences’.
2.85Together the amendments would ‘increase some protections for alleged victims and child witnesses’. They would also have ‘significant adverse effects on some categories of federal prosecutions, including making some federal prosecutions impossible or close to impossible. These impacts are either unique or almost unique in Australia’. In Professor Gans’ view, the amendments would ‘significantly weaken the criminal justice response to sexual violence’.
2.86According to Professor Gans, the amendments would also increase the amount of time it would take for defendants to be granted leave ‘to put and give their alternative accounts of the charged crime’.
2.87Professor Gans explained that defendants will sometimes ‘respond to a federal charge by arguing that the crime was done by someone else, or that the alleged sexual activity occurred well before or later than the time alleged by the prosecutor’. The amendments would ‘absolutely bar federal defendants from putting or calling evidence to support those arguments and, in some instances, will be absolutely barred from making their claimed defence’.
2.88Prosecutors will sometimes ‘offer circumstantial evidence to prove that the defendant engaged in the charged sexual activity with an alleged victim, and defendants will seek to argue that the evidence is due to another uncharged or non-criminal sexual activity with a different person at a non-recent or later time’. The amendments would prevent defendants ‘from offering such rebuttals of prosecution circumstantial evidence’.
2.89In Professor Gans’ assessment, the amendments would impose limitations on federal defendants ‘that go well beyond those that apply to any other Australian defendants’. In his view, that would ‘cause criminal injustice in response to sexual violence’.
2.90Professor Gans suggested that the committee could consider a provision contained in Victorian legislation as ‘Victoria, like the proposed federal revision, totally bans sexual reputation evidence and…bans sexual experience evidence but with the ability for a court to grant leave to admit it’. That legislation has:
…a definition of a different thing which they call ‘sexual history evidence’, applied to the whole provision…which is evidence that relates to or tends to establish the fact that the complainant was accustomed to engaging in sexual activities or had freely agreed to in sexual activity with someone.
2.91In Victoria, ‘[s]exual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to sexual activity to which the charge relates’.
2.92Legal Aid organisations did not support the provisions of the bill that would make evidence related to sexual reputation inadmissible.
2.93Legal Aid NSW submitted that total prohibition of sexual experience evidence in Commonwealth proceedings ‘would arguably prevent the Crown from introducing evidence of sexual assault by another person [other than the defendant], which may be highly relevant in Commonwealth matters involving slavery and trafficking’.
2.94As the bill would introduce stricter rules around the admissibility of sexual experience in Commonwealth proceedings, Legal Aid NSW was concerned that the bill could have implications for trials that concern ‘both Commonwealth and NSW charges’.
2.95SAMSN agreed and stated:
This inconsistency between Commonwealth and NSW provisions creates legal uncertainty and may result in extensive legal arguments, delays and potential appeals. The inconsistency also raises practical difficulties. In NSW, Commonwealth trials frequently involve a mix of State and Commonwealth charges. Situations may arise where different procedures apply for different charges involving the same vulnerable witness. For example, the witness may be eligible to give evidence in a pre-trial hearing for the Commonwealth charges but not for the State charges. Hence, a vulnerable witness might have to provide a mixture of pre-recorded evidence and evidence which is not pre-recorded. The witness at the pre‑trial hearing would need to be told that they cannot talk about certain charges.
2.96Legal Aid Queensland argued ‘that the requirement of leave of the court prior to questioning of this nature is a sufficient protection, ensuring appropriate gate keeping and considered analysis of the relevance of the questioning on a case-by-case basis’.
2.97The Australian Federal Police (AFP) recognised that the admissibility of sexual experience evidence ‘may prevent victims from coming forward and/or engaging in the court process’.
2.98The AFP also argued that the bill would:
…create a consistent framework across Commonwealth and state and territory [sic]. Currently, the AFP can be subject to conflicting obligations requiring disclosure under Commonwealth legislation despite it being an offence under state and territory provisions.
2.99The AGD stated that by making sexual reputation evidence inadmissible, the bill would make the Commonwealth legislation ‘[c]onsistent with state and territory jurisdictions (other than the Northern Territory)’. This provision of the bill ‘recognises that such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in any circumstance’.
2.100Sexual experience evidence would remain admissible with the leave of the court if ‘the evidence is of sexual activities with a defendant and the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence’. The bill would strengthen protections on the admissibility of such evidence as the court would need to be ‘satisfied that the evidence is substantially relevant to facts in issue; or, if the evidence relates to the credibility of the vulnerable person, has substantial probative value’.
2.101Evidence that ‘raises inferences as to a vulnerable person’s general disposition is not enough to be considered ‘substantially relevant to facts in issue’’. The court would also need to consider:
…whether the evidence tends to prove the vulnerable person knowingly or recklessly made a false representation when they were under an obligation to tell the truth, whether the evidence relates to the period that has elapsed since the acts or events, and whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable person.
Support for vulnerable persons
2.102Several inquiry participants recommended that the bill be amended to broaden the provision of interpreters or other kinds of support people to certain vulnerable persons.
2.103The Commissioner for Children and Young People Western Australia suggested that child witnesses may require tailored support prior to and during an evidence recording hearing’. The intention of the bill ‘is to ensure that child witnesses have access to the resources they require to understand, and meaningfully engage in proceedings. Therefore, the provision must provide for additional supports for child witnesses, particularly those who have a disability or communication difficulty. This could be achieved through the provision of a witness intermediary or communication assistant’.
2.104Several organisations representing First Nations people also recommended that culturally safe support be provided to vulnerable persons.
2.105Djirra called for the bill to be amended to ensure that ‘culturally safe support [is provided] to Aboriginal and Torres Strait Islander people who experience family violence and sexual violence’. It reminded the committee that Aboriginal women experience unique barriers when ‘navigat[ing] the justice system’. To address those barriers, it recommended amendments to the bill that would ‘provide for Aboriginal women being given the choice to access culturally safe, holistic, specialist family violence services’.
2.106Voices of Influence called for the vulnerable person to be provided with ‘a dedicated and trained support person’ while giving evidence at an evidence recording hearing. That measure would offer ‘reassurance and guidance [to the vulnerable person] throughout the process’.
2.107TLA compared the provision of the bill with those contained in the Evidence (Children and Special Witnesses) Act 2001 (Tas) (Children and Special Witnesses Act). Under that Act, witnesses are entitled to a ‘witness intermediary’ if their communication and ability to give evidence is impeded ‘by disability, illness, injury, trauma or some other cause (not just an inability to understand English)’. The Children and Special Witnesses Act also gives the court the power to make someone ‘a special witness which can lead to that witness having a support person with them when giving evidence’.
2.108QSAN suggested that during stressful or traumatic situations vulnerable people who speak English as a second language may ‘revert to their own language, and the formal and unfamiliar language can cause confusion and misunderstandings’. It suggested that officials involved in the proceedings ‘do not have expertise on determining English proficiency and comprehension’. For that reason, it ‘suggest[ed] that an interpreter should be an automatic right in cases where English is not the complainant’s first language’.
2.109The Law Council argued that the support provided by the bill to vulnerable persons would be insufficient and could be broadened:
We think ‘physical disability’ is not good enough, especially when there are many victims who have cognitive impairments and when the vulnerable’s ability to express themselves can be assisted by, as it were, an assistant. We have this in New South Wales, where child victims are given the support of a witness assistance person, who sits with them in the witness box. There is no reason why that couldn’t be the same for an adult vulnerable witness, where, for instance, a question is confusing because the person doesn’t have the same cognitive capacity—or in fact the lawyer just needs to be pulled into line to make it more simple.
2.110The Law Council indicated that ‘the provisions at the moment are limited simply to physical problems, like not being able to hear or not being able to see, or something like that’. In its view, the provisions of the bill could be broadened to better support people with a wider range of disabilities and impairments.
2.111The Law Council stated that such supports are integral to a fair trial:
The right to an interpreter to accommodate the language needs of people with limited or no proficiency in English is deeply embedded in the fundamental right to a fair trial. It is a critical duty of any judicial officer to ensure that proceedings are conducted fairly. Those involved in legal proceedings must be understood and must be able to understand what is being said.
2.112The Law Council recommended the removal of the word ‘physical’ from the provision to widen the provision of support beyond people with physical disability.
Cross-examination of vulnerable persons
2.113QSAN argued that vulnerable people should not ‘be cross examined about any previous nonconsensual activities’ unless the court grants leave.
2.114Women’s Legal Services Australia explained that the possibility of being cross‑examine by the defendant is a disincentive to victim-survivors reporting instances of sexual violence.
2.115QSAN and NWSA suggested that the bill should be amended so that the court cannot grant leave unless it is satisfied that the evidence is substantially relevant to the proceeding and has substantial probative value. QSAN argued that as that ‘evidence would generally not be relevant…a high evidentiary bar is warranted to satisfy before leave is granted’.
2.116In determining the probative value of the evidence, QSAN suggested that the court also consider:
the need to encourage victims of sexual assault offences to report these offences.
the public interest in ensuring victims of sexual assault offences report offences and receive effective counselling, response, and assistance.
whether granting leave is likely to infringe a reasonable expectation of complainant privacy.
any other matter the court considers relevant.
2.117The Law Council supported ‘a complete ban on unrepresented accused questioning complainants in sexual violence cases of any type’. It argued that there are multiple:
…examples throughout Australia of legislation that bans that sort of thing and where there are statutory measures that require the appointment of a lawyer to intervene, if only just to cross-examine the complainant.
2.118The AGD stated that the cross-examination of vulnerable persons was not ‘specifically raised during consultations, but there are provisions within the bill…that relate to cross-examination’. The department indicated that it would consider a prohibition against self-represented defendants cross‑examining vulnerable persons ‘and provide advice to government’. It would ‘be a matter for government’ to act on that advice.
Publication of personal information
2.119Some inquiry participants supported the measures to allow victim-survivors to self-publish identifying information. For example, SASV argued that ‘victim survivor agency to tell their own story can be an important aspect of recovery’.
2.120That view was supported by YACSA, which added that the wider public sharing of victim-survivor experiences could lower ‘perceived barriers to accessing justice in the broader community and improve understandings of sexual violence’.
2.121SASS supported giving victim-survivors greater agency in choosing whether to self-identify themselves publicly. In relation to the granting of that agency to children it suggested the consideration of additional safeguards, such as mandating that practitioners who determine that children understand the consequences of losing anonymity have:
‘expertise in assessing Gillick competence’;
experience of working with victim-survivors of child sexual assault; and
the ability to ‘appropriately assess the correct balance between the rights of the child to self-identify and the best interests of the child’.
2.122There was debate about the appropriateness of allowing the publication of identifying information related to deceased victims of sexual violence.
2.123Full Stop reported that it has worked with survivor-advocates who have told it ‘about the significantly retraumatising impacts of media reporting on their deceased family members’ deaths’. Those survivor-advocates said ‘they found the publication of information about and images of their family members, taken from social media and other sources, to be invasive and intrusive’. Full Stop recommended that the bill be amended ‘to provide that a publication may only identify a vulnerable person who is deceased with the informed consent of their next of kin’.
2.124RASARA informed the committee that there was no need to ‘re-prosecute these issues, which have been resolved’. It stated that seeking permission from the next of kin prior to publication undermined ‘the principle of open justice…[and] would likely trigger further trauma and disunity in already-grieving families’.
2.125NFVPLSF agreed with the concerns raised by the Senate Standing Committee on the Scrutiny of Bills regarding the reversal of the evidential burden of proof related to the new defences against the publication of identifying information.
2.126In its view, the proposed:
…defences could have several adverse consequences on Aboriginal and Torres Strait Islander defendants, particularly in the context of evidential burden and the dynamics of proving consent or the deceased status of a person.
2.127The Commissioner for Children and Young People WA supported the proposed amendments and their limitations which require ‘the publication to be in accordance with the limits set by the vulnerable person and that consent be accompanied by a support statement of a practitioner, who can verify that the child understands what it means to identify as a vulnerable person and the consequences of losing anonymity’.
2.128The AGD submitted that this provision was drafted in accordance with:
…stakeholder feedback received in the course of consultations, recognising that publishing identifying material in this circumstance does not raise the same issues of re-traumatisation of the vulnerable person, and there may be legitimate public interest reasons for publishing this information.
2.129The AGD stated that the publication of identifying material would ‘require the publishing person to obtain the informed consent of the vulnerable person, and the publication must be strictly in accordance with the consent provided’. It explained that the consultation process indicated:
…that there is a strong public interest in empowering vulnerable persons to speak publicly about their experiences where they choose to do so, whilst also ensuring that their privacy is protected.
Ground rules hearings and witness intermediaries
2.130Some submitters expressed support for ground rules hearings and witness intermediary schemes.
2.131Full Stop noted its disappointment that the bill did not include provisions for ground rules hearings. It explained that those hearings are:
…a pre-hearing process used to discuss and establish how vulnerable witnesses will be enabled to give their best evidence, by the Court setting ground rules for the questioning of the witness. Ground rules hearing have significant potential to address concerns about the questioning of victim-survivors of sexual violence inCourt—ensuring that such questioning is respectful, trauma-informed, relevant and safe.
2.132Women’s Legal Services Australia suggested:
…there is often a conflict between the interests of the prosecutor and the victim-survivor, and there is a need for a victim-survivor to have their own independent advocate who can act on their behalf in ground rules hearings. Intermediary schemes lead to better outcomes for victim-survivors.
2.133SASV understood ‘that ground rules hearings were initially in scope, but were omitted from the bill because there are no arrangements in place for intermediaries (although this is currently being scoped)’. It ‘support[ed] intermediary programs and ground rules hearings and encourage[d] progress on these important initiatives’.
2.134Embolden similarly observed ‘that ‘ground rules’ hearings have been omitted from the Bill following earlier feedback that such hearings must be supported by effective witness intermediary schemes’. It called for ‘continued action to develop and embed intermediary supports and ground rules hearings’.
2.135Full Stop argued:
Witness intermediaries and ground rules hearings are important mechanisms to address the retraumatising nature of giving evidence and the disempowerment of witnesses and complainants in the criminal justice system and ensuring that witnesses and complainants are supported to give their best evidence.
2.136To that end, it recommended that the government ‘commit to establishing a witness intermediary scheme following the scoping study, and accompany its establishment with further legislative reform to enable ground rules hearings to occur’.
2.137The AGD reported that an intermediary witness scheme was raised ‘later in the consultation process’. It recognised that such a scheme ‘was a significant issue that would require more time and consultation before being able to formalise recommendations on that issue’. The AGD is ‘conducting a scoping survey with respect to a potential Commonwealth witness intermediary scheme’.
2.138The AGD stated:
The Government provided $0.4 million over one year from 2022‑23 for the department to conduct a scoping study to explore options to establish a Commonwealth witness intermediary scheme to support witnesses, including complainants, to give their best evidence in Commonwealth criminal proceedings.
The study considers the intermediary schemes operating across Australia, examines the need for a witness intermediary scheme for witnesses in Commonwealth criminal proceedings, and proposes options for enhancing access to witness intermediaries for witnesses in Commonwealth criminal proceedings. The scoping study is expected to be completed mid-2024.
Committee view
2.139The bill would amend the Crimes Act 1914 to provide protections to vulnerable people who participate in Commonwealth criminal proceedings related to sexual violence. It would establish an evidence recording hearing mechanism that would give vulnerable people the option to pre-record their evidence and narrow the admissibility of sexual experience evidence in proceedings.
2.140The committee received evidence demonstrating that victim-survivors of sexual violence continue to be reluctant to pursue justice due to the risk of re‑traumatisation.
2.141The bill has been drafted to reduce the risk of re-traumatising vulnerable persons giving evidence in criminal proceedings related to sexual violence.
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.
2.143The committee recommends that the Attorney-General’s Department undertakes further consultation on items 23, 24 and 26 of the bill to develop amendments that ensure the current provisions limiting evidence of sexual experience do not adversely impact the ability to prosecute a federal crime against a child, or adversely impact the ability of a defendant to defend a federal prosecution.
2.144The committee heard that some victim-survivors of sexual violence require support during legal proceedings. While the bill would provide greater support to vulnerable persons with physical disability, it is the committee’s view that other persons must also be provided with support.
2.145The committee recommends that the bill is amended to remove the word ‘physical’ from section 15YOA and that the provision be broadened to include other persons with intellectual disability or other communication difficulties who may require an interpreter.
2.146The committee understands that there are different protections available for adult complainants and child complainants involved in sexual violence proceedings. In its view, those differences should be better articulated in the bill.
2.147The committee recommends that the Attorney-General’s Department considers amendments to the bill to clarify the interaction of, and different protections available to vulnerable adult complainants and child complainants.
2.148Subject to the above recommendations, the committee recommends that the bill be passed.
Senator Nita Green
Chair