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Justice and Related Legislation (Miscellaneous Amendments) Bill 2020

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 25 March 2021

Tags: Justice, Legislation

Dr WOODRUFF (Franklin) - Madam Speaker, it seems like a long time ago since I had the briefing on this but it was actually not that long ago. I thank the staff who gave me a very good briefing on this bill and outlined the many changes it will bring into law. They are very sensible. I understand that these bills take a very long time coming here. All the hard work has been done over a long period of time taking people's views from the various sectors who are involved in justice and related pieces of legislation that this act changes.

I will go through my comments about the changes that have been made, on behalf of the Greens. Regarding the Appeals Cost Fund Act 1968, this will make no fee payable for a number of summary offences and indictable offences and we totally support that. That was an important suggestion that I understand was made by the Legal Service, Legal Aid, and the Tasmanian Bar, or at least, they were notified of this and the other changes that are in this bill and they are comfortable with them.

The power to grant indemnity certificates will now be changed so that appellants can get a certificate in the Supreme Court and I understand that was proposed by the Chief Justice. It will then bring the Supreme Court into line with the Magistrates Court and that will reduce some court time and simplify the processes and do a little bit towards contributing to easing the unnecessary administrative burden in the court system, so that is a good idea.

The change to the Constitution Act 1995 was requested by DPAC, I was told, to clarify that all members, including me, would continue to remain as a member of parliament in the event that Her Majesty the Queen dies, without us needing to take a new oath. I have to say, despite the fact that I very strongly support Australia becoming a republic, I greatly respect many of the things Her Majesty has done in her lifetime and I certainly do not hasten the day when she will not be with us. In the event that it will happen, as we all will die, it is good to make sure there is not going to be any administrative hiccup and members will continue to be fully-fledged elected representatives on behalf of the people.

The change to the Coroner's Act 1995 was, I understand, proposed by a combination of Tasmania Police and the Magistrates Court and deals with the situation where there is a very large accumulation of sometimes very large amounts of evidentiary material. It could be bags or clothes or cupboards and things, but it could also be as large as cars in the case of an accident where a person has died and there is an ongoing coronial inquest, or where there is another crime that has been committed and a death has resulted, or where there are any suspicious circumstances and the coroner is in the process and has not yet finalised their determination about the cause of death.

In the process at the moment all that evidentiary material has to be kept somewhere and I imagine it could be very large, for example if somebody died on board a ship that ship might be impounded as evidence of a suspicious death. In that instance, it is important that all the material evidence has been comprehensively documented and that information can be retained so that at any time the coroner or anyone else who has the right to access that evidence can view it and make sure they are not missing any information they would need in deciding how a suspicious death occurred.

At the moment this will make the decision to destroy that evidence for practical purposes so it does not create a burden, it will be at the coroner's discretion and there will be a process to make sure photos, videos, forensic samples and any other tests that need to be made have been made and are stored in a place where they can be reviewed at any time they need to. That sounds like a manifestly sensible approach.

The Evidence (Audio and Audio Visual Links) Act 1999 is being amended because previously the use of that act has been constrained to the taking of evidence and the making of submissions. I believe it was the Chief Magistrate who made a request to make this proposed change so that now audio and audiovisual links are able to be used by courts for any purposes the court sees fit which will lead to a more open justice system and we fully support that.

The changes to the Industrial Relations Act 1984 have been requested by the Industrial Commission and we are comfortable with what has been proposed there. There were also changes proposed by the Supreme Court and the Chief Justice. Currently there is a two-stage application process where a full bench of the Industrial Commission has to be consulted first to say whether there is any reason that a matter should not be heard. That step will now be removed. Instead, an application for an appeal of an Industrial Commission decision will simply be made to the Supreme Court and it will be decided on a matter of law.

The Sex Industries Offences Act is the last of the acts I will speak to where there are proposed changes. I have a similar range of issues that have previously been discussed by Ms Haddad. I also asked questions in the briefing and was informed that in relation to this the Australian Sex Workers Association had not been consulted in the making of that amendment. That is a mistake. They clearly have a strong view about the potential impact. That is something that was a mistake - it was an oversight. I think it has been accepted as an oversight.

To the matter of the issue itself, it is about tidying up an outdated page in Public Health where the Sex Industry Offences Act as it stands refers people to a website which is not updated or is no longer correct and so that is out of date. In seeking to find a more enduring definition the proposal has been to use the definition of sexually transmitted infection which has been taken from the Macquarie Dictionary. On the face of it, that might sound like a reasonable solution but there is a range of concerns that come from that. There is a whole range of different definitions. The problem with the Macquarie Dictionary is that it is not a medical resource and it is not a peer reviewed resource. It is not looking at a definition of sexually transmissible infections from the Public Health lens but that is functionally what this amendment is trying to do. It is trying to fix up something in relation to a public health issue.

We wrote to the minister and she responded. I wrote raising the issues that had been raised with me by people from the Scarlet Alliance, the national body is in New South Wales. I spoke to some women from the national body and they were surprised and disappointed that the body had not been consulted. Their concerns about the definition are that the Macquarie Dictionary contains two diseases that are not listed as notifiable in Tasmania and not in other places in Australia, and that is herpes and genital warts. They say it is a substantial change. It is not clear how a disease that is not notifiable could practically be used to enforce a prosecution. They argue it extends the current legislation far beyond what is practicable or reasonable.

The bill as it stands proposes a definition to keep the STI list on the Public Health website updated by including an extra clause which is here in Schedule 1. Section 3(1)(h) will add any other prescribed infection. It is a problem. I would like the minister to clarify who has the authority to prescribe any other infection in this instance. Would it be the Director of Public Health? I assume it would be the Director of Public Health. What form would that take?

We had a look at the notifiable conditions within each state and territory according to Public Health legislation. It is the case that Queensland, Victoria, the ACT, the Northern Territory, New South Wales, South Australia and Western Australia all exclude herpes and genital warts from their notifiable conditions under their Public Health acts. So, Tasmania is different from the other states.

We also looked at the references to sexually transmissible infections in state and territory sex work legislation. In Victoria, the definition is that sexually transmissible infections is a disease or condition described by the regulations to be a sexually transmissible infection, and there are three definitions within that. Those conditions are chlamydia, chancroid, donovanosis, genital and anal herpes or lesions are visible and genital and anal warts where lesions are visible, gonorrhea infectious syphilis.

We straight away get into the issue which some people in Scarlet Alliance would point to and it is a question of how you determine whether a person has syphilis or genital warts or herpes. You can have the virus circulating in your body but not have lesions present and it is not clear how that would be interpreted, whether presence or absence of legions would be interpreted within the definition of a sexually transmissible infection that is proposed. It just simply has (e) herpes and (g) genital warts but does not talk about whether there is a presence or absence of lesions.

Queensland also has a similar addition that the lesions have to be present, whereas other states have not attached a list of definitions of STIs in the Summary Offences Act at all. South Australia has not, Western Australia has not, and the Northern Territory has not.

There are a number of things that are not clear to me from where we have landed with this definition. I accept the minister's response - and thank you for your comprehensive response to the letter I wrote, minister. The minister's explanation is that the definition exists to educate and inform sex workers and their clients that while providing or receiving sexual services that involve sexual intercourse or any other activity with a similar or greater risk of transmission of an STI they implement safe sex practices.

That is actually not what this list is doing. That list is saying that if infection is transmitted through sexual contact between people, including if you have herpes or genital warts, it is about the responsibility of the worker and the client to make sure that transmission does not occur. It is really important that we understand the role of viruses circulating in the body where there is no expression of that virus as a lesion, an obvious lesion itself.

Clearly, everyone would want to make sure that the rate of STIs in population stays as low as possible. Everyone would want to agree with that. Sex workers and clients along with everyone else who is having sex should always look at having protected sex where there is a risk of transmission of STIs. When we are introducing things into law about these matters I believe we should be quite precise about the language. We have concerns that there is a lack of clarity, particularly about herpes and genital warts. I would like the minister to explain any other prescribed infection. What is that leaving the door open to, and why would we be taking this step when other states have not taken that step? Who would be prescribing it? Would that be at national or state level? I presume it would be a state level Director of Public Health prescription.

I would support this clause being removed from the bill and some more consultation and detail go into it. That is the appropriate thing because there is a lack of clarity around it. I hope that some more consultation with Scarlet Alliance and any other appropriate medical body could happen in relation to that.