Tuesday,30 August 2022

Bills

Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022

Second reading

Debate resumed on motion of Ms SHING:

That the bill be now read a second time.

At present, I am advised by the Sentencing Advisory Council, only one in five sexual offence complaints and only one in 23 rape complaints result in convictions. Given what we know about the veracity of the testimony of the vast majority of people who have the great courage to come forward to make complaints, these figures are unacceptable, so I am pleased that the Attorney-General’s view is that they are unacceptable. It is my view—indeed it is the view of every member of the Liberal and National team—that they are unacceptable.

I want to flag at the outset of my contribution that we will be supporting this legislation. We have some minor amendments, the nature of which I will discuss briefly, and I would urge other members of the house to support those amendments. In a desire to be as fulsome as possible and as constructive as possible, I note for the benefit of the house that should those amendments fail, we will most certainly still be supporting the bill.

There is a significant need, as I say, to make the efforts that the government is seeking to make now to update the laws surrounding sexual offences to keep abreast of concerns and trends, particularly those that have resulted from technological changes, but also to deal with the core issues that I have already discussed briefly and other members have discussed at length; I refer members of the house back to Ms Taylor’s initial contribution on behalf of the government. I also want to say that we are appreciative—I am sure all members are appreciative—of the very hard work that the Victorian Law Reform Commission (VLRC) has put into these reforms.

As I say, those on this side of the house are very supportive of the aims of this bill. After our consultation with a range of different groups we are aware of some drafting concerns that we believe could lead to some uncertainty—concerns that we will seek to remedy through an amendment. That should not take away, as I say, from our support for the overall bill and for stronger measures to keep Victorians and in particular Victorian women safe.

The purpose of the bill is to implement 13 recommendations of the Victorian Law Reform Commission’s report entitled Improving the Justice System Responseto Sexual Offences. These especially relate to issues of consent and sexual offences. For many years I had the privilege to act as the chief wellbeing officer at large schools, and in that role I was the first port of call for students who were dealing with really thorny issues in relation to the behaviour of other students. In that role I came to a far more fulsome understanding than I previously had about the need to do far better in educational settings regarding consent. I know that is the government’s view as well. Especially through the actions of numerous brave young women recently, all of us I think have come to a better understanding that that is something that is very important to do.

Also in relation to the second purpose of the bill those roles were instructive for me. The second purpose is this: to elevate image-based sexual offences into the Crimes Act 1958 from the Summary Offences Act 1966. That means of course that they become indictable rather than summary offences and therefore can attract stiffer penalties. This is an area of law, I think, that many of us—perhaps all of us over the age of about 18—struggle with immensely. In my previous roles I was constantly surprised by the way in which this space moved and changed given the ubiquitous nature of online spaces for so many young Victorians in particular. So I think this is a good change.

Finally, the last purpose of the bill is to introduce or in some cases temporarily continue measures to enhance court efficiency. It was back in November of 2021 that the VLRC’s report Improving the Justice System Responseto Sexual Offences was tabled. Then on 12 November that year the government made an announcement about its intention and its initial response to the report. It said this:

… the Government will adopt an affirmative consent model.

… to … mean a person must confirm they have received consent, shifting scrutiny from the actions of the victim-survivor to those of the accused.

And:

The Government will also amend laws to make it explicit that stealthing is a crime.

Stealthing is not a term that is used specifically in the bill, and we have had discussions about the nature of stealthing already in this debate. From the point of view of the Liberals and Nationals, and as the first speaker for the Liberals and Nationals, I would concur with the comments of numerous other members about how important it is to include the measures in the bill regarding stealthing. Dr Ratnam in particular made some extended commentary about stealthing and how devastating the impacts of stealthing can be. So did Mr Limbrick, I think. Again, I would refer any members of the house wishing to gain a better understanding of the need for this inclusion and the concurrence of the Liberals and Nationals to the comments of those other members.

At clause 5 the bill seeks to deal with issues of consent, and these are of course central to this bill. We have heard from the Attorney-General previously about her commitment, which I do not doubt is very genuine, to seek to do far better when it comes to dealing with really complex and nuanced issues of consent. My understanding about her desire to do that is twofold. It is to send the strongest possible signal and message to the Victorian community, especially young Victorians, about what is acceptable behaviour and what is not, but then also to update the law to allow, hopefully, in far more cases for penalties to be applied for those who transgress. The bill sets out at clause 5 to change consent from meaning ‘free agreement’ to ‘free and voluntary agreement’. It also sets out a number of circumstances.

Sitting suspended 1.30 pm until 2.03 pm.

Dr BACH: Before the lunch break I was speaking about some of the changes to the law regarding consent that this bill is seeking to usher in and my view that not only do we need to do far better to ensure that there is a more thorough understanding of consent in the Victorian community—not just with young people, perhaps particularly when it comes to young people, but more broadly—but we also need better mechanisms to seek to get justice far more often than is currently the case for Victorians who are the victims of sexual crimes. It is worth saying again that overwhelmingly the victims of sexual crimes are women and children.

Before the break I noted that these changes are contained in new section 36, which sets out a number of circumstances in which a person does not consent to an act. These include:

… just because they do not resist the act verbally or physically—

a very sensible addition, and—

… just because they consented to—

a different act with the same person …

There are far too many examples of excuses of this nature being used in cases where ultimately the alleged victim does not manage to secure a favourable outcome. Next there is:

the same act with a different person …

I am not entirely sure why it is that that argument has been used in the past, sometimes with some effect, but it has. So again I do not disagree with the Attorney that an insertion explicitly in the bill of this nature is important. Finally there is:

a different act with a different person.

Again, it would be far better if in the year 2022 we did not have to spell out in such detail exactly what we mean by ‘consent’, but I concur with the Attorney that to do so is important—and I do so as somebody who over many years has provided consent education to teenagers.

Then in proposed section 36AA we see further circumstances in which a person does not consent, and again I would not mind touching upon some of these and then making some brief comments. These include but are not limited to where ‘the person does not say or do anything to indicate consent to the act’; ‘the person submits to the act because of coercion or intimidation’—sadly a not uncommon occurrence; there is unlawful detention—less common, and yet I agree it is important to have this inserted; or ‘the person is asleep or unconscious’—again, an important insertion.

At proposed section 36A we see some, again, useful additions to the law regarding whether or not there is a reasonable belief in consent. There are changes here that affect the application of whether or not a person ‘reasonably believes’, to use the exact language of the bill, that another person has consented to a sexual act taking place. Again, I do not necessarily need to read them in. Suffice to say, the consequence of this change is to put an onus on a person to say or do something to find out if the other person consents to the act. I think in the circumstances we find ourselves in—given the appalling under-reporting of sexual crimes, given the dreadful statistics that make it absolutely plain that so often brave people who come forward to report fail to secure justice—to make this change is a good thing.

As I noted right at the outset of my contribution, it follows in a long line of law reforms in this broad area of law that have so oftentimes received bipartisan support in this place. Now, we need to do better—we need to do far, far better—and yet I am hopeful that we will be able to continue to sensibly and collaboratively work together across the aisle in this place, certainly as we have done since the 1990s, when a series of changes to the law were made regarding sexual assault, including the introduction of the ability of alleged victims of sexual assault to appear in court via video link. That was supported by the Labor opposition at the time, as have been other changes under obviously predominantly Labor governments since then but also Liberal-led governments.

There are some changes to image-based sexual offences. Again, these have been commented upon by other members; I do not necessarily feel the need to go into the detail here. But I think it is really important for us as a legislature to seek to stay abreast of changes in this landscape and changes in the way, I am afraid, that perpetrators can use images in order to humiliate and victimise others. Here it seems to me that the Attorney has done a good job in seeking to capture emerging trends. As she has noted before, this is ongoing work and must be ongoing work. The social web only emerged in 2007, and since then we have seen so many iterations and so many changes. So the fact that this is an area of law that has caught the attention of the law reform commission and, through the law reform commission, the Attorney, the government and the legislature is a good thing.

Finally, before I do seek to explain the nature of the simple amendment that the coalition will move, let me briefly touch upon part 4, regarding jury directions, which I believe is a particularly meritorious part of this bill. Again, it should not be the case that in 2022 so often we hear reports from trials that much was made of what somebody wore—to be clear, ordinarily what a woman wore—or the way she behaved or what she may or may not have done with a different person or what she may have drunk and how much she may have drunk. I think there is a need to clarify the nature of jury directions in this particular area of law. This part provides for changes to jury directions in criminal trials involving sexual offences. For example, the trial judge must give the jury any relevant directions where there is good reason to do so, including direction on the absence of physical injury, violence or a threat and what that may mean, other sexual activity and what that may mean—or perhaps better put, what that may not mean, and in fact certainly does not mean in other cases—personal appearance and irrelevant conduct. Certain statements are also prohibited, including suggestions that complainants who provide commercial sexual services are less credible—that is good; that complainants who have a particular sexual orientation are less credible—that is excellent; and that complainants who have a particular gender identity are less credible. And I do think, given my engagement on these matters over a period of time now, that it is necessary, I am afraid, to seek to be crystal clear on these sorts of matters.

Overwhelmingly the Liberal and National parties welcome this bill. We will be supporting it, but we do have one concern that we will seek to remedy through an amendment. If it pleases the house and my friends the clerks, it would be an excellent thing if that could perhaps be distributed.

Opposition amendments circulated by Dr BACH pursuant to standing orders.

Dr BACH: We will be moving a simple amendment, which I have here, at clause 5, line 6, to omit the words ‘and voluntary’, similarly at clause 15, line 8, to omit the same words and then at clause 22, page 18, line 4, the same omission.

In this regard, as in all regards, this legislation is immensely well intentioned. In numerous regards I hope, as I know the government does, that it will work very well indeed. In fact that is my expectation across many elements of this bill, but I have a concern here. I know the Shadow Attorney-General, Mr Michael O’Brien in the other place, shares this concern, and he spoke about it in the debate in the other place. Some of the amendments that relate to jury directions on the meaning of ‘beyond reasonable doubt’ are matters that Mr O’Brien discussed. What I wish to touch upon briefly, and this is the direct content of the amendment, is some uncertainty that I feel will be introduced by the use of the language of ‘voluntary’.

Changing the definition of ‘consent’ from ‘free agreement’ to ‘free and voluntary agreement’ is something that has elicited some comments from a range of legal groups, in particular the Law Institute of Victoria. Mr O’Brien in the other place referred to the views of a range of other legal groups. I will briefly touch upon the views of the law institute, principally because I agree with them, noting that in the other place there was commentary about the views of some other legal groups. Here is what the law institute says:

The LIV does not support amending the definition of consent in section 35(1) and 36 of the Crimes Act.

The LIV considers that the addition of the word ‘voluntary’ is wholly unnecessary as it adds nothing to the definition of consent from a legal perspective. Involuntary acts do not constitute free agreement under existing law.

And the law institute goes on. After thorough consultation, our view is in line with the view of the law institute that in actual fact this change, well meaning undoubtedly, could introduce some confusion and that that confusion, we feel as the law institute feels and some other local bodies feel, may in actual fact lead to less good outcomes for victims and alleged victims.

And so that is why we are moving our amendment. We move it wholly in good faith. We hope it receives the support of the house, but again I do want to be very clear: if it does not receive the support of the house, we will vote for the bill because overwhelmingly we think it is a very good one. It addresses a very significant issue that is thorny and complex, yes, but we are thrilled that the committee saw fit to seek to deal with these matters and that then the Attorney has brought them before this place.

This bill includes a number of reforms. The most highly publicised of these are a change to the definitions of ‘consent’, 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 have seen a few times in this place the reason of complexity used as an excuse to push some important legislation down the road, and that has 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 complicit, consenting participants when their realities have been very traumatising sexual assaults.

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 it reflects that we are a federation of states, that there are many cross-border towns and that people travel and do not necessarily confine their sexual encounters to one place or one state. We need to ensure that what is considered as obtaining consent in one state is similar to another and that there are more similarities between our laws and education programs so 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. The bill also provides a non-exhaustive list where consent cannot be assumed, such as silence or because someone is asleep. You would think that would be pretty simple—you ask permission before you act—but there will be a few curls to iron out as this law is applied. These include, for example, what constitutes a reasonable time frame, whether there is a threshold for what would be considered lack of fear or harm, whether this will enable vexatious claims, how much jury directions will be used as a basis for appeal and what level of mental illness is an excuse for having a reasonable belief in consent. The explanatory memorandum points to situations where matters will be determined on a case-by-case basis. I recognise that leeway is important, but history shows in our experience that offenders love a loophole and victim-survivors end up being 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 were 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 and the Law Institute of Victoria have certainly been used by the government to justify voting against some of my amendments. I would have hoped that the consultation process could have really worked through some of these issues so we could have the best possible legislation for victim-survivors of these crimes. I have read reports where a spokesperson for the Australian Lawyers Alliance said that Tasmania’s changes have not made a difference to the number of cases coming before the court or the number of people coming forward or to increased conviction rates. He said there is still ‘an air of unreality about affirmative consent in many situations’.

Perhaps the real benefits of these laws will be further down the road, once we have educated a generation of young people about doing better than other generations and showing greater respect—to ask instead of take. I hope that future surveys will show a reduced 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 amongst lawyers and judges. We tried to gain a better understanding of this during the inquiry into Victoria’s criminal justice system; however, the committee was restrained by legislation from being able to gain the evidence that could have unpacked this a lot more.

We hope that an alternative sexual assault reporting option, which is 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 is our state government in 2023 makes this a priority. We also welcome the response to stealthing, a mystifying and repugnant act. This was another reform that Mr Grimley had drafted and 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 and harm. 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 rule hearings as a measure to support the experience 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 so 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 increased 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 ‘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 heaven’s sake. This amendment could allow a photo of any male at the beach or mowing their lawns without a shirt to be considered an intimate image. This continued moving of language, like trying to change the term ‘breastfeeding’ to ‘chest feeding’, is simply ridiculous and something that our party will not support.

This bill implements a number of changes, most notably making it clear for the first time in law that stealthing is a crime. The term ‘stealthing’ refers to the act of intentionally not using, removing or tampering with a condom when consent to engage in intercourse was given on the basis that a condom would be used. Such behaviour is a clear violation of dignity and bodily and sexual autonomy. It is a fundamental breach of trust between partners. It exposes victim-survivors to significant consequences, including ongoing trauma and psychological distress, transmission of STDs and unplanned pregnancies. This is just one of five new or amended circumstances in which under this bill there can be no consent.

If someone is coerced or intimidated into engaging in a sexual act, there is no consent. If someone submits to intercourse due to force, harm or fear of force or harm, there is no consent. If someone abuses a position of power or authority to make another person engage in intercourse, there is no consent. If someone makes a false or misleading representation about payment to a sex worker who then engages in the act on that basis, there is no consent. Consent is something that cannot be assumed or coerced. This is why we are implementing a model of affirmative consent with this bill, so that every Victorian knows they have a responsibility to get agreement from a partner before engaging in sexual activity. Under existing law the onus is on the victim-survivor to prove that they did not consent, placing enormous pressure on them and exposing them to scrutiny and retraumatisation. The focus should not be on the victim-survivor to show their non-consent, and that is what this bill rectifies. This bill will require in simple terms a clearly communicated and enthusiastic go-ahead for consent to be given.

More than that, reasonable belief in consent can only exist when a person takes steps, be that through words or actions, to find out if the other person consents. This bill also updates the definition of ‘consent’ through the addition of the word ‘voluntary’, reinforcing the fact that involuntary bodily reactions are not indicative of consent. It builds upon this to further highlight the need for clear communication of consent, acknowledging that a lack of resistance or any other such action does not equal consent. This shifts the focus from victim-survivors’ actions to the accused person’s actions in sexual offence trials and makes it explicit that consent cannot be obtained through coercion, threats or other inappropriate means. The simple fact is that the existing undercurrent of consent as hinging on the amount of resistance offered by the victim-survivor is entirely outdated and unhelpful and, to put it bluntly, perpetuates an unacceptable culture of victim blaming.

Of course our goal is not just to provide greater protection for victim-survivors but also to ensure that adequate preventative and educative measures are in place to stop sexual violence before it even occurs. We know that when these reforms are understood they will have an enormous potential to change people’s behaviour and attitude so that we all can reap their full benefits. As announced in this year’s state budget, this government is committed to working with local organisations and specialist services to deliver community-based consent education, ensuring that all Victorians have an opportunity to learn about and become familiar with the concept of affirmative consent. This will complement existing education initiatives like Respectful Relationships in schools, making sure every Victorian understands, supports and adopts these reforms and enabling us to embed a culture of consent and respect in young people and across the community.

It is also important to recognise that in an increasingly digitised society, online sexual offences are a significant issue that really does need to be addressed. This bill includes stronger laws to target image-based sexual abuse, which includes taking intimate photos of someone without their consent and distributing or threatening to distribute intimate images, including deepfake porn. As the Victorian Law Reform Commission (VLRC) recommended, the bill will take the existing offences from the Summary Offences Act 1966 and elevate them to the Crimes Act 1958, where they can be tried at higher courts and with higher potential penalties where appropriate. This will better reflect the seriousness of this conduct.

The bill also amends the definition to better cover persons of diverse genders in line with New South Wales and other jurisdictions. Under the change an ‘intimate image’ will include an image that depicts the breasts of a transgender or intersex person identifying as female. The government acknowledges that there is more work to be done to improve the inclusivity of language relating to gender and gender identity in the Crimes Act and Victorian legislation more broadly. We have heard specific advocacy to further expand these provisions right now. However, these suggestions have not been properly worked through yet, and we have to obtain policy advice about implications and better understand views from a range of stakeholders. The government has committed to this long-term project affecting these offences and others, and this will be done in close consultation with LGBTIQA+ stakeholders.

The bill also provides a narrow exception to the requirement to say or do anything, to address cases where the accused person’s failure to do this was substantially caused by a cognitive impairment or mental illness. This ensures a person with serious diagnosed cognitive impairment or mental illness will not be unfairly disadvantaged by the new affirmative consent requirement. To be clear, this exception is not a loophole or a get-out-of-jail-free card—it will only apply if the impairment is a substantial cause of their failure to say or do anything. The exception will not apply where the cognitive impairment or mental illness is an effect of self-induced intoxication caused by drugs or alcohol. Even if the exception is made out, the decision-maker will still have to consider whether in all circumstances the accused person had a reasonable belief in consent. This means that an accused person can still be found guilty of the offence.

The consent provisions have a default commencement of 30 July 2023, but they can be proclaimed to commence earlier. It really is so important that these reforms commence soon, but it is also important that we allow time for education and training to be delivered in our community to support their operation. With this in mind, the government is considering the most appropriate time for commencement. Given the significance of these affirmative consent reforms, the government will review their operation and assess how the provisions will apply in practice. We are not stopping there. We will also be able to draw upon experiences from our other state colleagues in New South Wales and the ACT, who have committed to their own reviews.

There are currently difficulties with prosecuting historical sexual offending, particularly when it is hard to pinpoint the exact time of a historical offence and there were changes in law around that same time. The VLRC recommended that this be addressed. The change will enable the prosecution to rely on whichever offence carries the lesser maximum so we can ensure that prosecutions can still be brought.

The current law already prohibits a ‘confidential communication’ from being compelled, produced or used in a proceeding without leave of the court. This protects the privacy of victim-survivors and ensures that they are not discouraged from seeking counselling. As the VLRC recommended, this bill will expand and strengthen protections in criminal proceedings for sexual offences, including expanding protections to include health information such as the personal information about a sexual offence victim-survivor that is collected in the course of providing a health service. The bill will also ensure that victim-survivors’ concerns regarding the use of their sensitive records are heard and considered, by including notification requirements and providing a clear right to appear in any such application.

The reforms in this bill before us today are the result of extensive consultation with victim-survivor groups, community organisations, service providers, legal stakeholders and multicultural and First Nations groups. As a government we are committed to ensuring that reforms such as these really do centre the voices of victim-survivors. I recently met with key stakeholders to discuss this bill and the broader movement for justice for women within our society. Last week I met with Safe and Equal, the peak body for specialist family violence services, who provide comprehensive support to victim-survivors in our state. I have consulted with leaders from Our Watch, an organisation committed to the eradication of violence against women and children, who have provided expert insight into the root causes of violence and how we can work towards eradicating it. Even before my time in this place I channelled my passion for improved conditions for women in this state through my time on the Women’s Health Victoria board, where we considered the gender appropriateness of health sector services, including those in sexual and reproductive health.

I really am proud to be a member of the Andrews Labor government, which has a long history of delivering major reforms for victim-survivors. We recognise that sexual violence in any form has no place in our society, and we have been working hard each and every day to eradicate it within our community. However, there is always, always more work to be done, and the Victorian government recognises the need for further reforms for victim-survivors going forward.

This bill forms part of an ongoing commitment from the Andrews Labor government to develop the whole-of-government, 10-year strategy to address sexual violence and harm. The vital consultative work that underpins this strategy is continuing and will shape the strategy’s release next year to ensure it delivers meaningful change. The time for change is now, and we must act decisively to protect the community from sexual violence and ensure the criminal justice system can respond effectively to these abhorrent crimes. Through the passage of this bill Victoria is seeking to take a step towards achieving justice for victim-survivors, and I commend it to the house.

I for one am sick and tired of the missives, ‘What was she wearing?’, ‘She shouldn’t have drunk so much’ or ‘If she didn’t want that to happen, she shouldn’t have sent the photo’. Toxic masculinity is all too real, and it is a scourge. What she was wearing is irrelevant. She has a right to wear whatever she wants without fearing assault. Being intoxicated does not give anyone a free pass to commit rape. If she trusted someone she loved with an intimate picture, she has a right for her privacy to be respected, particularly within the confines of that relationship. It is men who are the problem. It is men who must stop it. How about we just stop being scumbags? Sexual violence is rife in this country, in this state, and the reality is that we truly do not understand how deep it runs. That is because for too long the onus has been on victim-survivors to prove what happened to them.

I know I do not need to tell the women in this place that the legal system is not easy for survivors of sexual assault to navigate. It is stacked against them. It intimidates them, and too often it brings them no justice. All of us will know someone who has experienced a sexual assault. Disgracefully it is a feature of most women’s lives at some point. But very few of us will know a woman who has taken action on her assault, because they know it could further prolong their pain, their suffering and their trauma.

Sexual assaults and sexual violence can take many forms, and this bill addresses many of them, giving power back to victim-survivors and further avenues to seek justice. All men need to know is that anything less than a yes is a no. Affirmative consent, featured in this bill, makes it clear that everyone has a responsibility to gain consent before engaging in sexual activity. Too many survivors are scared to speak out, because they were silent or were too scared to show resistance to their perpetrators. The fact that these women were too terrified to sometimes even move has been used as the excuse to dismiss legal action in our courts—a disgraceful fail-safe used by perpetrators to attest consent, backed by magistrates too weak to believe the truth. This has created countless barriers to survivors seeking justice, especially if they were intoxicated or froze during that attack—the common fear response.

This bill also bans the disgraceful act of stealthing, the non-consensual removal of a condom during sexual intercourse. Again, disgracefully, stealthing is a feature of far too many women’s sexual experiences. It is traumatic. It takes away agency and self-determination. It creates a lack of trust in relationships and is linked to post-traumatic stress disorder. Stealthing is not only an assault, it puts victims at risk of sexually transmitted infection and pregnancy. In Australia one in three women have been stealthed. This is a disgraceful statistic to reflect on, because it makes not only one-third of women victim-survivors but one-third of men perpetrators of sexual assault. Stealthing is indicative of a deeper, more insidious problem: men viewing women as objects or possessions. It leads to further sexual and physical violence, removes dignity and autonomy and leads men to believe that sexual experiences are only for a man’s enjoyment.

Until recently stealthing was not widely known about or understood. My female staff reflected on this with me while considering this bill—that stealthing is a common occurrence, particularly for young women. But often the experience was minimised due to so many not realising it was a sexual assault, despite the feelings of violation it gave them. It is important to talk about young women when considering stealthing, because girls and young women between the ages of 16 and 24 experience the highest rate of intimate partner violence—almost triple the national average. This means that men are learning violence young, and it is displayed in their sexual relationships. By having strong laws that make it clear stealthing is a crime, we are teaching young men and boys about having respect, that their actions have consequences and violence against women is never okay.

Finally, the targeting of image-based sexual abuse in this bill is another much-needed change. The rise of technology, smartphones and sexting has in turn seen the rise of outing and revenge porn. Outing ruins lives and careers and in some circumstances can even result in someone deciding their life is no longer worth living. We cannot let the ‘If you don’t want them to be released, don’t send them’ narrative to continue any longer. It is the leaking of private, intimate images that is shameful, not the decision of someone to take them. As more and more young people, particularly women, grow up with digital footprints, we must drive this message home. I understand the Greens have some amendments to this section of the bill around the definition of ‘intimate image’ to protect trans and gender-diverse Victorians, which of course I will support.

I want to thank the government for bringing this important bill today. We have a long, long way to go to end sexual violence in this state, but this is an important first step and I thank you.

I have got to say there has been a lot of improvement over the past decade or couple of decades and we are making some headway, but we have still got a way to go. We know that we need to do more. It would be lovely if we could come back here and say we do not have any more sexual violence in this state, in this country, but unfortunately we are not there yet. The other problem is conviction rates for sexual offences remain very low. Only one in 23 rape cases that are reported result in conviction, plus we know that under-reporting is another serious problem we have, because there is always the onus of proof on the victim.

What the bill will do is actually change that around to make it easier for victims to come forward and put their cases before a court and make sure that we redefine consent. Some people will come out and criticise it, saying this bill is putting too much onus on the definition of ‘consent’, but I have got a simple answer to that: for an adult, yes means yes and no means no. You do not assume what the other party is saying. Do not apply the mind-reading strategy. Consent is very simple. If you say the person did not object—‘She didn’t say no. She didn’t push me back’—well, there would be a number of reasons probably why that happened. Was it an issue of power? Was it an issue of fear? Was that why that person had not wanted to say no? Or did the person who committed the act basically not hear or not want to hear that that person did not want to participate in a sexual relationship? It is all about respect. I will call it what it is. If a man is going to have a sexual relationship with a woman—or any relationship: man and woman, woman and woman, man and man—it has to be based on consent. It is very simple. It is one party saying, ‘Yes, I want to freely participate in that act’, regardless of your sex. It is a no-brainer, and let us not twist things—‘Oh, I assumed there was consent’.

This bill will make a number of changes to make sure there is a clearer definition of ‘consent’. There has been some criticism that the bill is going to create some problems where people have not proved there was consent, but to me it is very simple. If you are going to use your position to have a sexual relationship with an employee, for example, and you are going to use your power and that person is fearful of that imbalance in the relationship, to me it is a problem. It is problematic. To me it has to be two people freely consenting to these sexual activities.

The bill gives some examples of circumstances when there is no consent. The bill will introduce a new provision that will re-enact and build upon the existing consent circumstances. For example, it will address cases where a person submits to or engages in a sexual act due to force, harm or fear of harm of any kind. That strengthens existing circumstances in recognition that harm is not just physical but can include psychological, economic or financial harm and subtle emotional manipulation. The issue can arise from a single act or an ongoing pattern of behaviour. The other one is coercion and intimidation. That is another way of describing the current situation and has a similar rationale to ‘fear of harm’. The provision better reflects the family violence dynamic and how the ability to give free and voluntary agreement is negated in these circumstances. A lot of men unfortunately use that position of power to intimidate and coerce women into sexual activities.

Abuse of a relationship of authority or trust is another example. This provision will capture the situation where a person abuses their position of power in a relationship in such a way as to cause the other person to submit to a sexual act or feel they have no choice but to submit. That provision is consistent with the language used in New South Wales and the ACT, and again it is an area we need to watch. A person may say, ‘Well, there was no objection at all’, but if you are in a position of power where that person is fearful of, if she said no, what would happen to her, to me it is not consent even if that person did not come out and say ‘No, I do not want to have or engage in a sexual relationship with you’. That is another example where to me there is no consent. It is an absolute abuse of power.

False or misleading representation about payment for commercial sexual services is another example. Previous speakers talked about the non-use of or tampering with a condom, for example, which is stealthing. Mr Meddick talked about that as well. I mean, that is another abuse of power. He said something along the lines of particularly for women from the ages of 16 to 24, even if they agree to engage in a sexual relationship, in that age group they might not want to end up with a pregnancy, for example. If the male decides, ‘Well, okay, I’ll take the condom off and then I’ll go for my life’, that is not consent. That is rape. That is abuse, and that should stop. One of the wonderful arguments that comes up from time to time is being asleep, for example. I mean, to me that is not on.

The bill goes a long way to addressing some problems that still exist unfortunately in the 21st century in our society, where predominantly men think that if they have got the physical power or they have got the financial resources, they can deploy those to basically take advantage and commit these sexual offences. To me it is a no-brainer: consent has to be genuine consent between two people, between adults. Consent should be free from intimidation and blackmail. If a person has economic means and uses that against women to carry out sexual activities, to me that is not consent. To me that is rape.

When a person says no, the word means no. But what worries me the most is when the person does not have the ability and the means to actually say no for various reasons, which I talked about earlier, whether it is the power dominance, fear of safety, economic pressure—all sorts of reasons where that right to say no is taken away—and predominantly it is women. That is what worries me the most, and a lot of these cases go unreported. So hopefully this legislation will go a long way to saying, ‘We’re shifting the balance from victim blaming to we’re going to be on your side’, and now the perpetrators have to come forward to be able to establish that it was not rape and there was no sexual assault. Some of the commentators will probably say some of the aspects of this bill could be problematic and cause more problems. I would actually err on the side of caution and put more toward looking after the victims than the alleged perpetrators.

This bill will be subject to review. So if we get it right, that is great. If we got some of it wrong, we can always review that. I would rather err on the side of not blaming the victim but supporting the victim. If you do not commit the crime, you will not do the time and you have got nothing to worry about. That is why some of the changes in this bill hopefully will go a long way to stamping out this sexual behaviour predominantly committed by men because we have got the physical and the economic means and think we are entitled to commit these hideous crimes, in my view, against women. I think in 2022 it is time to stamp these things out. It is time to treat women as equal. We are equal. We are not better than them. In fact I think they are better than us. I think women are better than men in a lot of aspects in life, but because we have got the economic means and the physical means we just go out there and commit these horrible crimes against women. I am hoping this bill will go a long way to stamping that out.

I commend the minister and the Attorney-General for bringing this bill to the house. That has been a hallmark of the Andrews Labor government since we took office in 2014—to continually reform areas in relation to family violence and violence against women in particular over the last eight years. I am looking forward to continuing the reform in that area so we can live in an environment where we do not talk about these things in the future. I see a future where sexual violence, particularly against women, is a thing of the past. So with these few words I commend this bill to the house.

The way someone dresses is not consent. How much that person has had to drink is not consent. How that person walks home at night is not consent. We have all been, I am sure, involved with the Me Too movement, some of us probably in a more personal way than others, and before that we would march in the streets. We had marches in the street to keep women safe at night, and that started in the 1970s. Also for many years I was involved in a group called SlutWalk, which was again about saying that consent has to be affirmative. Consent is not suggesting ‘Well, she seemed to like me’ or ‘Gosh, she looked like she liked me’ or ‘She was dressed in a certain way’. So I think this is a proud day to be here to see this campaign come to fruition and see affirmative consent introduced into our justice legislation.

I was sexually assaulted as a young person, and I am not alone. The statistics show that if there are five women in a room there will certainly be number of them who have been assaulted. When you look at the LGBTIQA community those statistics become even higher. Particularly for our transgender community, the statistics are alarming. I did not report it to the police. I did speak to the person—he was an acquaintance—and made him understand very clearly that there was no consent there and that it was in actual fact sexual assault and in fact it was rape. That did not stop him. After that happened I actually went and spoke to his mates and told them what happened, and I am very grateful for those fellows—those young surfer guys. They immediately acted. They immediately asked that man to leave and they told him they never wanted to see him at the camp ever again, and we did not; he never came back. Had there been affirmative consent, had we had these conversations—because this was a long time ago, and it is still not much better. Most women or most people who are sexually assaulted will not go and report it, because they are worried that they will not be believed. They are worried that the bar is set at a certain level of proof so that in some ways they have to prove that they have been sexually assaulted, and basically they do. Affirmative consent takes this back, so that the perpetrator has to show that there was consent and has to show it in explicit and clear ways. The only person responsible for sexual assault is the person who did it.

So this change I hope will affect women today, and I hope that the outcome of this legislation will mean that more women will want to report and that, more importantly, less people will be raped or sexually assaulted. This is part of an education campaign, this is part of a worldwide movement. We saw that New Zealand has actually prosecuted people under some affirmative consent laws and some stealthing laws that I will mention in a moment, and we have seen other jurisdictions follow this path. We will see the ability for us to run national campaigns. This is yet another tool for us to address sexual violence in our community.

The bill also makes some important changes around stealthing and image-based sexual offences, and I am happy to support those. As someone who is a bit involved in the sex worker community, the term ‘stealthing’ is actually abhorred. Sex workers prefer not to call it stealthing. They prefer to call it sexual assault. When we were discussing this years ago there would be concerns about people saying ‘stealthing’. I think it came into our dictionary about five or six years ago, and sex workers would say that that kind of diminishes the harm that that action does to a person.

If a sex worker is working and someone pulls off a condom without consent, that is sexual assault, and this legislation goes to that, which I am very pleased about. So despite the term, the impact is that stealthing is now seen as sexual assault. For a sex worker this often would mean that they could no longer work, because they would have to take time off for sexual health checks to ensure that it had not caused any transmission of any STIs. There would also be the mental harm from this as well. So for sex workers I think there was a sense of urgency for this to be addressed, and I think if I remember rightly this was also raised in the debate around sex work law reform.

I would just like to touch on the proposed amendments by the opposition. I listened to Dr Bach presenting those amendments, and I have some sympathy for those arguments. Certainly if there is a person in this room that knows about educating and speaking to young people it is Dr Bach. The reason I could not get there was the consistency of the Northern Territory, the ACT, Queensland and New South Wales. In having the same interpretations, in having the same definitions, I think we can approach this on a national level. Having a standardised interpretation also provides for a body of precedent from the other jurisdictions in other areas, and I think I have enough faith in the judicial officers to navigate around the word ‘voluntary’ here. As I said, importantly it will assist us in consistent education across the state and across the country, to assist in changing—frankly, and as Mr Melhem put it—men’s behaviour.

The Greens have put up some amendments to this legislation as well, and while I agree entirely with the purposes of these amendments—and I absolutely support the advocacy from my friends at the Victorian Pride Lobby and Equality Australia—I think what these amendments do is actually highlight that we need to rework the Crimes Act 1958, that actually our whole Crimes Act needs to be updated. So there is a little bit of homework for the Attorney-General—I suspect possibly not before this election, not before the end of this term. But I think it is a very important piece of work that needs to be done, and I would compel the Attorney-General to consider putting that on the to-do list if they were to form government or the opposition if they were to form government after this year’s election—that they would also consider having a whole update of the Crimes Act.

Firstly, I will speak to the most significant part of the bill, which is an affirmative consent model, and Derryn Hinch’s Justice Party welcomes this move. It is something I know will be a huge celebration and frankly relief for a number of victim-survivors who we work with. For too long our system has victim blamed. For too long our system said, ‘Why didn’t you just say no?’. For too long the criminal justice system has required a woman to take the stand and be cross-examined about the fact that ‘She said yes before, so she clearly wanted it on this occasion’. It is rubbish, and I am looking forward to victim-survivors being believed. Needless to say, these reforms need to be accompanied by significant educational campaigns. This is not a statement to excuse bad sexual behaviour—in fact far from it—but many of us in this place have sons and daughters, and while some young people, young men mainly, might think they have gained consent, it may not be satisfactory under these new laws.

I refer to much of the commentary within the legal fraternity at the moment. They think that this could create real problems with clients who did not intentionally do anything wrong but, under the eyes of these new laws, may have. Consider things like: how drunk is too drunk to give consent? Some might say, ‘Well, any drinking means they can’t give free and voluntary consent’. Others might say, ‘If they’re unable to put their words together, then that’s the level at which they can’t give consent’. Others might say it depends on X, Y or Z. Further, not many people talk about the circumstances where both parties were drunk and could not have possibly, either of them, freely consented. But you can see there is no definition of how alcohol or other drugs might intersect with informed consent. That is just one example of the complexities of sexual assault law. It is going to be quite difficult for our state to move to this model in terms of changing attitudes, but I think we are heading in the right direction and I think it is absolutely necessary.

I am glad to see the bill refers to pressures outside of that moment constituting lack of consent. For instance, in family violence where the victim-survivor feels threatened due to a course of conduct and is pressured to have sex, that would not be consensual. The bill has extensive provisions relating to submission from force or fear of force or harm or fear of harm, whether from a single incident or a pattern of behaviour. We have spoken to many victim-survivors who have experienced this kind of coercion. In terms of potential loopholes, there is one which is reasonable in one eye and a defence lawyer’s breakfast in the other. If you can prove you have a cognitive impairment or mental illness, you are exempt from the requirement to take steps to confirm consent. Obviously the protection here is that the status quo remains. But I am cynical, and I am sure that there will be mental health assessments to try to access this loophole.

I have to say the explanatory memorandum to this bill is quite substantial and very prescriptive in its direction. It is the first that I have seen like it. Where federally the explanatory memorandums are very in depth and contextualised, we do not seem to have that in the state versions generally speaking. But given the complexity of this bill and the need for courts to interpret according to the Parliament’s intention, it is extremely in depth. I welcome such documents like that in the future.

Moving on, under the bill the removal of a condom without permission will remove consent. This is sometimes known as stealthing, but it is primarily and essentially a sexual assault. Coincidentally I drafted amendments to the Sex Work Decriminalisation Bill 2021 last year and was planning to announce them the day after the government’s announcement when they released the Victorian Law Reform Commission report. In fact the Herald Sun had written our article, and it was ready to go. We had drafted it even before the VLRC Sexual Offences report had been released. So we were very glad, though not surprised, having spoken to many survivors, to see it in there. We had consulted victim-survivors as well as Dr Brianna Chesser, who is a senior lecturer in criminology and justice and the program manager for the bachelor of criminology and psychology at RMIT. Dr Chesser worked on implementing the ACT stealthing laws. Given this, you could say we are pretty happy with the inclusion of this amendment within the bill. When I was at Victoria Police I dealt with several sex workers who submitted allegations of sexual assault by removing of the condom, but we were unable to prosecute these offences. This legislation seeks to amend this, and I welcome it wholeheartedly.

I am also grateful to see changes to image-based sexual offending which will take these crimes more seriously. I have to say it is about time. This is something which has had universal support in this place and in the community and should have been done years ago as mobile phones and computers started being used as weapons. The bill moves these offences into the Crimes Act 1958 but allows them to be tried summarily, so the statute of limitations on them will be removed, I presume. The definition will be broadened to include crimes like deepfake porn and the alteration of images without consent. There are reasonable exemptions to this clause which ensure that there are hopefully no unintended consequences.

I now move to the confidential communications provisions that have been included in the bill. Quoting my own press release from earlier this year, the amendments:

… will allow victims of sexual assault the right to defend their confidential communications … and will create a system of checks and balances to ensure courts are satisfied that victims are aware of applications to access their—

private—

information.

I introduced these amendments in March this year and withdrew them on the commitment that they would be introduced in this affirmative consent bill, and they have been. I did note that in the crossbench bill briefing the Attorney’s office did not make any reference to this amendment being due to the hard work and advocacy of Derryn Hinch’s Justice Party, which was a little disappointing. These confidential communication amendments are a six-year-old Victorian Law Reform Commission report recommendation and have not been codified since. Nonetheless I thank the Attorney for keeping her word in introducing them and extending the provisions to health records. It is a small step, but for some out there it will make a huge difference.

I want to finish on two issues—sexual assault and how we can reduce this horrible crime. It was interesting to see that I was mentioned in the 2021 VLRC Sexual Offences report. The mention was about my concern for a lack of data collection around failure to report and attrition rates. I saw it firsthand when I was at the sexual offences and child abuse investigation team at Victoria Police—the lack of data collection, the lack of de-identified narrative speaking to reasons for attrition. We simply do not have that data that we desperately need. The VLRC report made a number of recommendations around data collection, but I had beaten them to it a year or so earlier. My motion on improving data collection for sexual offences in 2020 was voted down by the government, the Greens, the Animal Justice Party and the Reason Party. My motion would have gone some way to fixing this issue of data collection. Ms Patten said at the time that it was a Trojan horse for a sex offender register, of all things. If that was the case, then the VLRC were perhaps pushing for a sex offender register as well when they recommended the same thing in their report.

I want to pick up something that Dr Ratnam said in her second-reading speech on this bill, which was:

Less than one-fifth of sexual offences reported to police result in a conviction in court. The vast majority do not progress past the police investigation stage, and of course most sexual offences are not reported at all …

The true extent of sexual violence in our community is much greater and much more concerning than those statistics would suggest. Some suggest less than 1 per cent of sexual assaults result in convictions.

I say to those crossbenchers: if we only knew what the reasons were behind this data, then we could perhaps move some way to fix the problems. It is so very frustrating in this place when we propose commonsense motions and amendments that continually are voted against by the same parties—in the interests of what? I have no idea. It is certainly not in the interests of victims of sexual assault. I urge members in this place who have voted against proposed reforms previously to speak with victims of crime and to speak with the sexual assault agencies and academics that suggest the changes are so desperately needed to improve the system. It is difficult for me to forget that vote, because it was playing politics over an issue that we have seen here today is clearly very significant. Our party’s ideas for motions and amendments do not come from me and they do not come from a political base. They generally come directly from victims and from support service agencies.

Just before I wrap up I want to speak about another piece of advocacy from Derryn Hinch’s Justice Party in relation to sexual offending and where it is up to. Earlier this year we passed a motion in the house about sexual assault reporting options. It asked the government to commit to an online mechanism to report sexual assaults. I will not rehash the entire speech here and now, but it was supported unanimously in this place. The motion required the government to table a report on the findings of the Engage Victoria consultation outlined in the motion in the Legislative Council by 1 September 2022. I was advised by the Attorney’s office just last month that they will not have anything to table on 1 September. The consultation will not have been completed, and they cite that the matter is complicated and that they would prefer it be done properly instead of being half-baked. Whilst I tend to agree, it has also been 4½ months since this motion passed the chamber, and it was five months prior to that that the VLRC sex offences report came out. I hope, regardless of whether I am in this place or not next term, that this reporting option happens and it happens as soon as possible to encourage more survivors to come forward.

Lastly, while we may not agree with everything in the VLRC Sexual Offences report, overwhelmingly we are supportive of their work and their recommendations. Let us not forget that the government have only committed to implementing a handful of the 91 recommendations. The VLRC’s 2016 report into similar matters had many recommendations implemented, but it took until this year to implement others, only due to the advocacy of Derryn Hinch’s Justice Party. I hope the same does not happen with this 2021 report. The latter report also recommended a grab and drag offence. I am grateful for the recommendation, as you would have heard me say last week. The government has been avoiding making a commitment to implementing this particular offence for the time being, and I hope this will come to fruition next year. Given that it had the endorsement of every single party in this chamber bar the government, I think it was well supported—not to mention the 100 000-odd people who signed the petition calling for this loophole to be fixed.

In summary, we welcome the contents of this bill and hope to see more recommendations of the report acquitted as soon as possible to assist victims of sexual assault get their justice. I commend this bill to the house.

The Labor Party is not the party of consent. I am pleased that this government is just now learning how consent works. However, the fact that they are now trying to lecture others about the importance of consent shows a staggering lack of self-awareness. This government has been responsible for many laws and decrees that ignore and violate consent. Nearly every law that passes this place is about removing consent. The cheek, the utter gall, of this government talking about consent is just staggering, breathtaking. The arrogance astounds me. Where was the consideration of consent throughout the pandemic? What has changed between then and now that has made this government re-evaluate its stance on consent? This government still keeps in place the emergency powers and is still coercing people that do not agree with it. If you had any self-awareness at all, you would slink from this chamber in shame.

The Liberal Democrats will support this bill because we support the fundamental idea of consent. I think there are some issues with enshrining these things in law and there are problems that will arise down the track with the implementation of this legislation. Improving community understanding of the concept of affirmative consent is a valuable cultural project, but it is not clear to me that this legal framework is the best way to do that. Even after this bill passes, consent will not be clear cut. It will still rely on interpretation and be at risk of retrospective revision. Perhaps everyone involved will need to record all intimate encounters to establish consent or otherwise, which will then make consent around sharing of intimate recorded details even more pressing. However, consent matters. We will support the bill, but I remain shocked that members of this government can, after the last two years, stand here with straight faces and talk about consent. Shameless.

We consider a breast part of sex. You can remove it and say it is not part of being in a sexual offence—just totally remove it. I understand why you would not want to put the word ‘chest’ in this legislation, because a lot of men have chests. Women have chests when they have their breasts removed. You could just say that maybe breasts are not sexual organs, but they have gone into a really complicated description now of what is considered as identifying what you would call a woman’s breast. So I am really struggling with the language that has been used. I understand why this government continually wants to push different language and complicates a piece of legislation, but I am also really perplexed with one of the other goals of this government within the amendments.

Now sex work is contingent on payment. Making a false or misleading representation about payment to a sex worker, who then engages in the act, therefore makes it non-consensual. This conduct is currently only captured by the lesser offence of procuring a sexual act by fraud. The bill makes it clear that in some situations this conduct would be rape or sexual assault. Now we have got money complicating rape. I find that this government, the way they have put this together—the language that they are using throughout this piece of legislation and what they are trying to achieve—is becoming almost nonsensical. I will be struggling to support a lot of the amendments and changes today.

I understand the intent, but I do not actually believe it goes far enough to protect men from sexual assault. There are a lot of men who are sexually assaulted—young men who get drunk and get raped. It would seem that there still seems to be a real lack from this government of protecting men during family violence, protecting young men when they are raped or offering services that are available to them regarding what we are doing to actually help those young victims, who get extremely embarrassed and do not feel that they can actually come forward because we have no real services available for them. When it comes down to the rape of lesbians and gay men it would seem that we are getting better at providing those services to them, but when it is a young man who is raped by a young woman or an older woman, and they are of the age of consent, there just seem to be not enough resources for when they are the victims of rape.

I would hope that this government somehow, when they are looking at equality, look at everybody as humans as well as discussing our biology and actually using terms. I am fine with you deleting certain terms if you feel that that is not the term to be used, but you are complicating the language. It would seem from doctors and otherwise that the confusion is ranging from the bottom up and the top down. I will leave it at that.

That debate on this bill be adjourned until later this day.

Motion agreed to and debate adjourned until later this day.