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Evidence Amendment Bill 2020


Rosalie Woodruff MP

Rosalie Woodruff MP  -  Wednesday, 18 March 2020

Tags: Legislation, Crime, Justice

Dr WOODRUFF (Franklin) - Madam Speaker, I will commence my second reading comments on behalf of the Greens to say that we will be supporting this Evidence Amendment Bill 2020. It is a very important change and, by and large, the many submissions that were made by individuals and bodies across Tasmanian society are very supportive of it. They raise a number of questions about things which I do not understand to have been taken up as they had asked and I will be raising those questions in my second reading comments.

I want to start off by saying that as the End Rape on Campus and Mike Lawler's submission made clear, this is a very is a very important change to legislation in Tasmania because there is no other crime where adult victims are expected to gain a court order before they can speak out about their experiences and their real-life identities into the media. We have all heard the very powerful and sometimes very harrowing stories from women in the Let Her Speak campaign and I commend Steven Fisher and Grace and all the other people who have spoken out and brought this issue to the public and now the Government's attention so that we can correct this situation.

Dr WOODRUFF (Franklin) - Madam Speaker, I believe I was up to discussing the fact that there are currently no other crimes in Tasmania where adult victims are expected to gain a court order before they can speak about their experiences under their real identities in the public domain to the media. This law was obviously intended initially to protect victims, survivors, from media exploitation, but it has a number of unintended consequences which have been very painful for those people.

These are outlined by End Rape on Campus and Marque Lawyers. They have said that they include silencing individuals, survivors who want to speak out publicly and, through that, increasing their sense of isolation, powerlessness and voicelessness. It has maintained and potentially increased the social stigma around sexual violence by keeping taboos intact, and also treating the survivors as nameless, faceless others. It has disempowered sexual assault survivors in the community more generally and erased from view those people who might otherwise draw strength from their powerful role as public role models.

It has also restricted survivor-led advocacy and education by placing conditions on how survivors can participate and be heard in public debates, including the debates which directly affect themselves. It has also disempowered individual survivors and potentially increased their existing trauma by denying them the opportunity to engage in certain activities they may find restorative, therapeutic, or healing. Those experiences we have heard detailed at a personal level by some of the people in the Let Her Speak campaign that has been leading up to this bill. That is exactly a summary of the sorts of things they have reported.

That is the underlying motivation for the bill and we entirely support that. The change itself makes sure that courts will retain control of what can be published during relevant criminal proceedings, but after those proceedings have been finally determined or otherwise completed, the victims themselves will have control because identifying particulars cannot be published without their free and informed consent. The bill will also enable it to be a summary offence to publish identifying information without an order or a victim's consent.

There were many submissions made to this bill and most of them were entirely supportive and had recommendations for some changes, many of which are represented in the final amendment bill before us. The Rape and Domestic Violence Services of Australia body said that they were very supportive of the draft legislation and commends the Government for taking this positive step and reforming the legislation so that people can share their own story publicly without the additional unnecessary barrier of having to obtain a court order.

By and large, the submissions were supportive, however there was a range of recommendations for changes submitted by stakeholders and several of these appear not to have been adopted. We would like to ask a range of questions about the reasons for not doing so and to understand what the Government's thinking was on those matters.

A submission made by Engender Equality made the observation that the wording in the draft bill was very hard to read and interpret. They requested that mechanisms be put in place to make the meaning and the content of the law accessible. I believe the member for Clark, Ms Haddad, raised this point. It is obviously the case that rewriting bills in layperson's language every day is not possible because language has a very precise meaning in law. Nonetheless, it would be good to hear from the minister whether there are plans to simplify that language and make it entirely transparent and accessible to a range of stakeholders who would be wanting to relay that information to their clients or people who have accessed their services. I am thinking of rape and sexual assault services, women's shelters, many of the organisations where women have been receiving support, as well as community legal centres and other legal bodies. Is there a plan for doing that so that it is really clear for a whole range of literacy levels?

The second question I had was in relation to a submission from Dr Helen Coburn, a lecturer in police studies, criminal law and evidence law at the University of Tasmania. She was the author of the Tasmanian Law Reform Institute's report called Protecting the Anonymity of Victims of Sexual Crimes. In her submission she recommended, first, that the word 'likely' should be defined as an appreciable risk more than a fanciful risk and, second, in making determinations about whether a publication is likely to lead to identification, she said:

The court shall have regard to potential identification by a reader, viewer or listener equipped with knowledge in the public domain in all the circumstances of the case.

Could the minister advise why those particular recommendations were not taken up, or whether there is something I have misunderstood in the bill that we have before us?

The third question I have is in relation to the Law Society's submission. The Law Society recommended that the phrase 'in contravention of this section' in subsection (8) be amended to read 'in contravention of subsection -

Ms Archer - Sorry, who was that, Dr Woodruff?

Dr WOODRUFF - The Law Society. It is on the third page of the report.

Ms Archer - It's okay, I have it here.

Dr WOODRUFF - They recommended subsection (8), the phrase 'in contravention of this section' be amended to 'in contravention of subsection (5)'. It is quite a precise comment about the effective drafting of the bill. If that could be clarified, please. I do not understand that occurred. My fourth question -

Ms Archer - Can you clarify which clause that was on?

Dr WOODRUFF - It was subsection (8), page 10 of the bill -

… person who publishes or causes to be published any identifying information in contravention of this section …

Their point was, it should read -

… in contravention of subsection (5) …

Ms Archer - Okay, thank you.

Dr WOODRUFF - That was the Law Society's comments. I am asking questions which have not been incorporated or otherwise addressed in the writing of the bill.

The fourth question I have is in relation to a submission, one of which was made by the Community Legal Centres Tasmania, submitted by Benedict Bartl, Policy Officer. A number of submissions noted a lack of certainty over the application of subsection (3), paragraph (b)(5). It is not clear the extent of the application of this section regarding appeals. The draft bill read -

The information was published only after the proceedings in court in respect of the relevant alleged crime or offence were finally determined or otherwise completed.

The concern was around the word 'completed' has been replaced with 'disposed of' in the proposed bill which we have before us. The words 'disposed of', the CLC argues, has done nothing to provide clarity, which has also been emphasised by the observations made within the media about the application of this provision. Can you provide some clarity about the application of this section? Does this prevent a person from self-identifying until all appeal avenues are exhausted, or does it only apply while the proceeding at point is underway? In other words, can people self-identify after trial proceedings are completed in a period before an appeal may or not be lodged?

Ms Archer - You mean the trial proper?

Dr WOODRUFF - Is that the term, trial proper? Yes.

Question number five relates to the Sexual Assault Support Services' submission. Their comments were regarding subsection (4). They recommend the insertion of an additional provision for (e) to require the person to have the requisite mental legal capacity to make this decision. They said they understand this may be intended to be covered with subsection (4)(c) but propose that the requirement for a person to have the requisite mental capacity needs to be made more explicit.

That point was also supported with the submission the End Rape on Campus makes. Their submission on page 4, Annexure A, points to legislation from different jurisdictions around Australia. I note that in Queensland publications are prohibited from publishing the identity or material likely to identify a victim and complainant. The only exception is if the victim and complainant are over the age of 18 and has the capacity to consent and authorises that consent in writing. In Western Australia they also require that the person must be over 18 and not incapable by mental impairment and authorise consent in writing. Could you discuss why those matters were not directly managed in the way that the Sexual Assault Support Service has proposed?

I have another comment in relation to subsection (4) and that was made by TasCOSS. In TasCOSS's submission, their recommendations included recommendation 3 which was that the requirement that consent is given must also include that person has not been 'coerced, defrauded or otherwise manipulated'. I note in subsection (4)(d) the words are 'was not coerced into consenting'. Could you explain whether that would also, in your view, include 'defrauded or otherwise manipulated'? They had three specific terms so can you explain why we only have 'coerced', and on what basis you think that is sufficient?

The sixth question I have is in relation to subsection (5) about the court making an order. The Sexual Assault Support Service was concerned that this subsection is not sufficiently victim focused and that the court is only required to consult with the victim or witness in deciding whether to make an order or not and, second, that the publication must also be in the public interests. Their position is that where a victim wishes to be identified and the other conditions have been met, that is, the victim has the requisite capacity to make the decision and that other affected victims or witnesses have also consented, the priority of the court should be to respect their wishes, and that the publication of identifying details in cases of other non-sexual crimes is not required to be in accordance with public interests. They strongly feel that this should also be the case with crimes of sexual violence. They recommended that subsection (5)(a)(i) should be revised to read 'has consented to the order, understanding that he or she may be identified if the order is made and information is published in accordance with the order'. They also feel that the amendment from 'consulted' to the word 'consented' is vital to carry out the intention of the reform. They say it is hard to see a situation in which the court would make an order to allow publication of identifying details despite the victim of the crime not consenting. The question is would 'consult' be interpreted in this context to mean that consent is a requisite part of consultation?

My last comments relate to some suggestions made by the Commissioner for Children and Young People and Rape and Domestic Violence Services Australia, who both ask questions about how a review of the operation of the new section 194K will be undertaken to ensure that is operating as it has been intended and that there are no adverse unintended consequences. The CCYP has asked whether a review should be undertaken no later than two years after the commencement of the new section. Rape and Domestic Violence Services Australia asked that there be a further mechanism for ongoing monitoring and evaluation of any changes to law and legal processes surrounding this change to section 194K, with an opportunity to examine the effectiveness of any such changes, including seeking to address any unintended consequences, so they both relate to a formal review or and a mechanism for ongoing monitoring and evaluation.

I think I have raised all the questions that have not been addressed in the bill. I note that many of the submissions and comments people made were addressed and that is very good. We strongly support this bill being passed and look forward to releasing the veil of silence which women survivors have experienced for too long in Tasmania.