I rise to speak on the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022.

The government says this is the first tranche of legislative reform in response to the Victorian Law Reform Commission’s Improving the Justice System Response to Sexual Offences report.

The VLRC report made 91 recommendations against the disturbing context that one in five women over the age of 15 has experienced sexual assault in their lifetime, and over 85 per cent of these assaults are not reported to police. Standing here today, I am one of those statistics. 

This bill includes a number of reforms – the most highly publicised of these is a change to the definition of consent and the move to a model of affirmative consent and stealthing.

I must congratulate the Attorney-General for not shying away from a complex piece of legislation that aims to put greater emphasis on the rights of survivors over offenders.

Some elements of this bill are certainly complex. I’ve experienced a few times in this place the reason of complexity used as an excuse to push some important legislation down the road, and that’s been especially disappointing for victim survivors that we have been advocating for.

The move to strengthen consent laws by moving to an affirmative model is to embed that ‘yes means yes’ and to clear some of the murkiness that exists around what constitutes consent in sexual interactions. This is particularly welcome in cases that I know of where victim survivors have been portrayed by our justice system as a complicit, consenting participant when their reality has been a very traumatising sexual assault.

This follows moves by other states towards the same type of model, but each state is approaching it a little differently. I hope there ends up being enough of a unified approach, particularly in how our young people are educated, that reflects that we are a federation of states, that there are many cross-border towns, people travel and don’t necessarily confine their sexual encounters to one place. 

We need to ensure that what is considered obtaining consent in one state is similar to another, and that there are more similarities between our laws and education programs that we can actually achieve the desired effect of this legislation.  This is not only to educate people on how to responsibly and respectfully engage in sex, and hopefully reduce offending in the process, but also to inform and protect potential survivors of assault so they understand their rights and legal protections.

These laws make it clear that a person needs to take affirmative steps to gain consent. It also provides a non-exhaustive list where consent cannot be assumed – such as silence or because they are asleep. You’d think that would be pretty simple – you ask permission before you act – but there will be a few curls to iron out as these laws are applied.

This includes, for example, what constitutes a reasonable timeframe? Is there a threshold for what would be considered lack of fear or harm? Will this enable vexatious claims? How much will jury directions be used as a basis for appeal? What level of mental illness is an excuse to having a reasonable belief in consent?

The explanatory memorandum points to situations where matters will be determined on a case-by-case basis and I recognise that leeway is important. But history shows, in our experience, that offenders love a loophole and victim survivors end up the losers.

I will note concerns from a number of stakeholders.  The chair of the Victorian Bar has expressed some real concern about how the legislation will work in action, such as when people are drunk and neither completely recalls the events, or around the nuanced behaviour of teenagers. These concerns were met with some ridicule from the government, which I found surprising because the views of the Bar, or the Law Institute of Victoria, have certainly be used by the government to justify voting against my amendments. I would have hoped that the consultation process could have really worked through some of these issues, so we have the best possible legislation for victim survivors of these crimes.

I have read reports that a spokesperson for the Australian Lawyers Alliance said Tasmania’s changes haven’t made a difference to the number of cases coming before the court or the number of people coming forward, or increased conviction rates. He said there is still an air of unreality about affirmative consent in many circumstances.[i] 

Perhaps the real benefits of these laws will be further down the road, when we have educated a generation of young people about doing better than other generations, about showing greater respect, to ask instead of take. I hope that future surveys will reduce the number of reports and non-reports, because the incidence of sexual assault reduces.

The Victorian Law Reform Commission chairman suggested the barrier to implementing the concept of free agreement is an entrenched culture among lawyers and judges. [ii]  We tried to gain a better understanding of this during the inquiry into Victoria’s criminal justice system, however the committee was restrained from being able to gain the evidence that could have unpacked this a lot more. 

We hope that an alternative Sexual Assault Reporting Option, a policy of Derryn Hinch’s Justice Party, is provided for victim survivors sooner rather than later. This was the topic of my colleague Mr Grimley’s motion in the Parliament earlier this year. I believe that consultation is continuing, which might be code for ‘next year’, but I hope whoever forms our state government in 2023 makes this a priority.

We also welcome the response to stealthing, a mystifying and repugnant act, and this was another reform that Mr Grimley had drafted and had at the ready, before the VLRC report was released, as he did with the right for survivors to defend their confidential communications.

Image-based sexual offending is a growing area of offending that can cause serious distress. Making these offences indictable will help Victoria Police in relation to search and arrest powers, as well as reflect the serious nature of these acts.

We also welcome the expansion of ground rules hearings as a measure to support the experiences of a complainant. This recognises how traumatising the trial experience can be and that there is a need to create an environment that ensures a complainant is treated with respect, and that they feel safe and able to present their best evidence.

When the government announced these reforms, some nine months ago, it promised $5.2 million in funding to specialist sexual assault services to respond to increasing reporting and demand.

I will be interested to know what funding will be attributed to educating young people in schools, the general public and judicial officers.

In closing, I want to confirm that we will not be supporting the Greens amendments to change the definition of an intimate image to mean a person who is female or has breasts. We all have breasts because we are mammals.  Men get breast cancer for heavens sake! This amendment could make a photo of any male at the beach or mowing their lawns without a shirt on to be considered an intimate image. This continued moving of language – like trying to change the term breast feeding to chest feeding – is simply ridiculous and something I will not support.

[i] The Saturday Age (7 Aug 2021) Pleas for ‘affirmative’ sex consent law in Victoria, by Wendy Tuohy

[ii] The Saturday Age (7 Aug 2021) Pleas for ‘affirmative’ sex consent law in Victoria, by Wendy Tuohy