Tuesday, 30 August 2022

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.

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (19:06): This is a fantastic opportunity to sum up debate on a really important piece of legislation. I would like to thank the speakers from last sitting week and this week who made contributions. This is a bill that I am extremely proud to be delivering. It is taking a significant step to improve Victoria’s sexual offences laws. We know that sexual harm continues to be rife in our community. We have serious problems with under-reporting, conviction rates and the way the justice system is supporting victim-survivors.

Sexual violence can affect all people but is overwhelmingly experienced by women and girls, highlighting the need to strengthen gender equality and justice in our society. Too often we get complacent and think the job is done, such as when we see women in positions of power. But we know that gendered, sexual and family violence is insidious, and we must continually improve our systems. As I have said, I am so grateful for the speakers in this house, but I also tuned in to a lot in the other house. Many shared personal experiences, stories and reflections or those of people that they know and care about. It reiterated how pervasive the problem is, and this highlights why we need to work together across party lines to improve it.

I thank the opposition and other members for their support for the bill and its aims. I also want to acknowledge the strong and extremely powerful advocacy for sexual offence reform from brave women such as Saxon Mullins, Grace Tame, Brittany Higgins and many more. This advocacy tells us directly why it is critical to act and make changes now and drive cultural change. These reforms are a step in responding to that advocacy and actually mimic the national conversation and contemporary attitudes about what is free and voluntary consent.

The bill is the first tranche in the delivery of a response to the Victorian Law Reform Commission’s report Improving the Justice System Response to Sexual Offences. The bill forms part of the ongoing commitment to develop a whole-of-government 10-year strategy to address sexual violence and harm, which will be delivered next year, and to continue to deliver meaningful change.

The bill will embed a clear affirmative consent model, including by amending the definition of ‘consent’ to be ‘free and voluntary agreement’, clarifying circumstances in which consent can be given and making it clear that a person cannot have a reasonable belief in consent if they did not say or do anything to find out that there was consent. Quite simply, if you want to have sex with someone, you need to say or do anything to find out if they want to have sex with you. This will in turn shift the scrutiny from the actions of the victim-survivor to those of the accused. The bill will reinforce key principles such as that consent can never be assumed and must be actively sought by the other person or people taking part in that act. It is an important change because we know the onus in trials very often continues to be on a complainant to show what they did or did not do to show a lack of consent, in effect attributing blame. Our attitudes and expectations of sexual conduct continue to change. Many people, especially young people, are already past the ‘no means no’ adage and understand that it is only yes that means yes.

Unfortunately I have seen attacks on and trivialisation of this bill. These have included suggestions that people will go to jail for kissing their partner while they are asleep and general claims that the bill will kill romance, that teenagers will be inhibited from discovering their sexuality or that the bill will end the presumption of innocence. A quote from an article from, as I mentioned earlier, an incredible advocate and victim-survivor, Saxon Mullins highlights the issue with this commentary:

Lawyers can work in the hypothetical; as a survivor, I work in the reality … The laws are not clear, and we need to be clear on what negates consent. It leaves it up to too much interpretation.

Of course I acknowledge that debate is important and new laws should be tested and worked through. That is why we held extensive consultation on all aspects of this bill, particularly the affirmative consent. Advocates certainly tell us that there is much more work to be done beyond this bill, and some people wanted us to go further in this legislation. Some parts of the legal community have suggested we are going too far. As I said, this was subjected to extensive consultation. It was a bill that I took extensive interest in. I have had many conversations with the department and many conversations with people that contributed to the consultations about getting this right, and I feel personally confident that we have struck the right balance.

It is also really important to point out that much of these affirmative consent reforms mirrors recent reforms in New South Wales and the ACT. Consistency with other jurisdictions is important and beneficial as it allows for a uniform understanding of consent across Australia. That can provide a foundation for education and, all importantly, changing behaviours. These reforms will be assessed and reviewed across New South Wales and the ACT and in Victoria and perhaps lead to further enhancements, further improvements. But it will be great to be in the same spot very soon.

I want to touch on the Liberals’ amendment, which we can go through in committee, but I will see if I can respond to some of that now. We will not be supporting the opposition’s proposed amendment to exclude the word ‘voluntary’ from the definition of ‘consent’. Defining consent as ‘free and voluntary agreement’ is consistent with most other Australian jurisdictions, including the previously mentioned New South Wales and ACT but also Queensland, South Australia, the NT and WA. As I have said, consistency is important and can really provide a foundation for continued conversations and changing behaviours. In fact it is the Australian Law Reform Commission that previously recommended that:

Federal, state and territory sexual offence provisions should include a statutory definition of consent based on the concept of free and voluntary agreement.

So that is what we are doing here.

The opposition have noted that some stakeholders do not support this proposed change. That is true. I acknowledge that people have raised concerns, but as I indicated, all of these views have been previously given consideration in the development of this bill. The reforms do not displace the existing understanding of free agreement but rather expand on it to make it clear that involuntary bodily reactions are not an indication of consent, for example. It is intended not to substantially change the definition of ‘consent’ but rather to reinforce and strengthen the definition to ensure that any potential gaps are covered.

Touching on image-based offences, the bill will elevate the existing image-based offences to the Crimes Act 1958. This will better reflect the seriousness of this behaviour and allow for us to address current trends such as matters including deepfake porn.

The Greens have got an amendment, which I am sure we will have another conversation on in committee, but I want to touch on the reasons that the government is not in a position to support these amendments to extend the definition of ‘intimate image’ to include the breasts of a female or any person who has breasts. These changes of course have been previously put to me by many stakeholders directly, including Equality Australia and the Victorian Pride Lobby, and I certainly appreciate the very legitimate concerns about gender-inclusive language. It is something that I want to commit to addressing. But this is just not the bill to do it with at this time. It is not appropriate to use this specific offence to rush changes that have a much broader impact. The core concerns of inclusivity are not confined to the image-based sexual abuse offences; there is more work to be done to improve the inclusivity of language relating to gender and gender identity in the Crimes Act and indeed our whole collection of statutes in this state. This will be a longer term project undertaken in close consultation with LGBTIQ+ stakeholders. It certainly was important to me to make this commitment explicit in the second-reading speech, which I did, and I want to reaffirm that now.

The government’s bill seeks to extend the definition to include transgender and intersex Victorians who identify as female, but broadening the definition further at this stage and without the opportunity to obtain detailed advice and, importantly, test that advice could be a significant policy shift and raise potential inconsistencies with community expectations. For example, most people would not consider an image of a topless man in board shorts at the beach to be an intimate image, and changes such as this could bring that into question.

There are also potential implications for other parts of the Crimes Act, which refer to the breasts of a female such as for forensic procedure provisions, and there is also the potential for fair trial implications in relation to an accused’s knowledge. They are complex issues, they are important issues, and I certainly completely understand why people have raised them and why they would like to see an amendment to this bill. But hopefully, as I have explained, it is not an avoidance of wanting to do the right thing, it is just not the right vessel to achieve the change that people want. But I want to reaffirm that I am very committed to the issues that have been raised, just not in this bill at this time.

As announced in our recent budget, the government will work with local organisations and specialist services to deliver community-based consent education. This will ensure that affirmative consent is understood, supported and adopted by Victorians. It will complement existing education initiatives, such as Respectful Relationships in schools, and embed a culture of consent and respect in young people and across the community.

I think I say quite regularly when it comes to justice bills and legal reform that one of the advantages of updating the law is the opportunity to talk about it and for people to learn about it and to have a conversation about it. I think when you are having a conversation about how you should interact with people that you want to have a sexual relationship with, particularly younger people, continue to have a conversation about what constitutes consent, what you should do, the actions you should take to make sure that the actions that you are seeking are reciprocated and that you have taken steps to ensure that you are both on the same page. It is not that complex.

Time and time again we see people fall foul of the law. We see victims try and get justice through the justice system, and they are too often asked about what they did. I really am happy, really proud, that this legislation is going to flip that. It is always going to be difficult to prosecute a sexual offence crime. It is always going to be difficult for a victim to go through the justice system, but this is going to make it that little bit easier when it is about what the accused did. What did they do? What steps did they take? But also ensuring this conversation about how you should behave takes place will hopefully prevent the court having to consider these in the first place. It is a conversation worth having. I will continue to have the conversation as we roll out this legislation, because I understand that it will receive support today, but also those important education campaigns and the continued conversation. Again, particularly for those young women that have been at the forefront of demanding cultural change, hopefully this delivers on some of that hard work. I look forward to the committee stage of this bill and its ultimate passage this evening.

Motion agreed to.

Read second time.

Committed.

Committee

Clause 1 (19:19)

I have two questions pertaining to clauses 3 and 8, and I am happy to ask them now, in the general clause, if you wish to acquit all the questions now.

Let us go to them.

Attorney, I have got two questions. Firstly, on clause 3, regarding tampering with a condom, there is concern that a person could use an oil-based lubricant on a condom, not knowing that it could damage the condom. If they intentionally apply the lubricant despite not knowing the damage it could cause, would it amount to intentionally tampering with a condom?

Thank you, Dr Ratnam, for your question. It is a question that we were prepared for. I have received advice in relation to the intention of this—on what happens if tampering is accidental or the parties agree not to use a condom. The provision is intended to only capture intentional non-use of, removal of or tampering with a condom, not accidental conduct or consensual acts, which covers off half of what you said. But further, we discussed specific advice in relation to oil-based lubricants, as in the example that you have provided. Of course we know that in these situations things do not always go to plan and the wrong lubricant could accidentally be used, causing slippage or breakage et cetera. The provision is not intended to criminalise any of that type of accidental conduct. It is targeted at people who deliberately disregard a person’s fundamental right to set boundaries before engaging in a sexual act.

Thank you very much, Minister, for that response. My next question regards clause 8 and reasonable belief in consent. There is concern about how this would operate in the scenario of a dark room at a sex-on-premises venue. In that scenario it is generally silent, so nothing can be said to find out whether person B consents to the act, and it is dark, so nothing can be seen to find out whether the person consents to the act. Consent is often negotiated by touch—so person A will touch person B to find out if they consent—but non-consensual touching is also against the law. Furthermore, it cannot be argued that person B consented to the act just because they were in the dark room, and that is regarding proposed new sections 47G(d) and 47I of the Jury Directions Act 2015—clause 48 of that bill. So there is a question about how affirmative consent would operate in this scenario. Attorney, could you clarify how the bill applies in this situation?

I thank Dr Ratnam for her specific question in relation to that scenario. In this particular situation the person would still be required to say or do anything to find out whether the other person consented. Fundamentally what underpins this legislation is that consent cannot be assumed just because a person enters a sex premises, for example. A person must seek consent from the other person within a reasonable time before or at the time of the sexual act. A reasonable time before might include verbal or non-verbal interactions about consent and the parameters of the sexual act to occur before entering the dark room, provided they continue negotiating consent through ongoing and mutual negotiation—because, as we know, you can withdraw consent at any time.

The requirement in new section 36A(2) is intended to be flexible enough to apply to a range of different settings. If words cannot be used in this context, consent would need to be negotiated by doing something. This could be through non-sexual touch or gestures. Whether the touch is sexual touching would be a matter for the court to decide in accordance with the definition of ‘touching’ in section 35B of the Crimes Act 1958. Any reciprocating response from the person could then indicate consent. For example, if the person is consenting, they might lean their body into the other person or engage in reciprocal touching. Affirmative consent principles are not designed to inhibit sexual practices at sex-on-premises venues but rather to make sure that sexual acts that occur in these settings are safe and done with free and voluntary agreement of all of the parties involved.

Clause agreed to; clauses 2 to 4 agreed to.

Clause 5 (19:24)

I move:

1. Clause 5, line 6, omit “and voluntary”.

The DEPUTY PRESIDENT: The question is that Dr Bach’s amendment 1, which tests his remaining amendments, be agreed to.

Committee divided on amendment:

Amendment negatived.

Clause agreed to; clauses 6 to 21 agreed to.

Clause 22 (19:31)

The amendments I am moving have been suggested by Equality Victoria and will ensure everyone who has breasts or private upper-body parts similar to breasts is protected from intimate image abuse. As currently drafted, the image-based sex offences do not fully protect people of all genders from discrimination and abuse based on sex characteristics.

While I understand the definition in the bill was adopted for consistency with other jurisdictions, this is not appropriate for Victoria, where we have led the country in recognising non-binary genders and upholding the rights of people who are trans or intersex. My amendments will also respect trans and intersex women by not marking them out as different to other types of women, as is currently the case with the existing wording in the bill, and I so move my amendments:

1. Clause 22, page 17, lines 1 to 3, omit “female, or a transgender or intersex person identifying as female,” and insert “female or has breasts,”.

2. Clause 22, page 17, after line 4 insert—

“(e) if the person is a transgender male person or a person whose gender is neither exclusively male nor exclusively female, the person’s chest area;”.

I would like to support Dr Ratnam’s amendments. As I said in my second-reading speech, it goes to the point that the whole act needs review and needs a modernisation. While I am not certain the amendments are necessarily perfect in this regard, they indicate what we do need to do in renewing, reviving and reviewing the justice legislation, and I think this shows a willingness to do so.

I struggle with these amendments, seeing that I feel there needs to be a definition that everyone can actually understand. We would like to understand what a breast is. Define it. Is a breast sexual, or are we just talking about nipples? Is a chest sexual? If we are going to start to continually add language that for everyone is just not basic language—it should be basic language. You say either the nipple is considered a sexual organ or a breast is considered—which most people would say is not, for breastfeeding. A chest is not considered a part that you would use sexually, but a nipple does actually have—a natural nipple of a man or a woman, not disconnected and reconnected—normal use in a sexual act.

The Liberal Democrats will not support these amendments. We are concerned about the potential unintended consequences, and if some amendment of this type was to go ahead I think it would require a far wider review. For that reason we will not be supporting these amendments.

Dr Ratnam made reference to breasts and other sexual upper body parts. I am wondering what those sexual upper body parts might be, because I am sitting here trying to work it out.

Dr Cumming: Only nipples, Bernie.

Mr FINN: I would have thought they were part of the breasts. I do not know, but look, I have an inquiring mind and I will not be able to sleep tonight unless I know what these sexual upper body parts are that Dr Ratnam has referred to.

The DEPUTY PRESIDENT: Mr Finn, I think we might just leave that there.

I just might take some time to go through some of these issues, because they are important issues. I do not disagree with anything that Ms Patten said, except I form a different conclusion, because she was saying that the amendments as put demonstrate a willingness to do something that we need to do. I struggled with this when it was brought to my attention—the language and the disrespectful nature of it. I was like, ‘Can we fix it in this bill?’. I was convinced that, no, we cannot. It is not ideal, and I accept that. I gave a commitment in my second-reading speech and in my summing up and give it again now that this is something that we need to look at in a broader sense. But to the issues that Mr Limbrick has picked up on, it creates another problem, trying to fix the situation in this bill.

What I did want to do is just go through a few things, again reaffirming that the government is strongly committed to improving the inclusivity of language across our statutes, specifically in relation to gender and gender identity. We should have that better reflected in a modern Victoria through our statutes; I acknowledge that. Language is important, particularly as it underpins our laws, because our laws apply to all Victorians. I recognise that for too long our legislation has not reflected the diverse, tolerant and inclusive society that we value so highly here in our state.

Having said this, recognising the inclusivity of language in our laws is really a much broader issue than the legislation that we have got here today. As I said, I cannot fix it through this bill. If I could, that would be great, I would do it, but I cannot. We are committed to addressing the issue of inclusive language in the Crimes Act 1958 in the future in consultation with the Victorian LGBTIQ+ communities, other stakeholders and the stakeholders that have brought these amendments that the Greens have sponsored today in particular. But we do need a considered approach, one that will enable changes to be made without creating confusion and complexity of inconsistency and potentially undermining the operation of other important objectives in our laws.

It was not possible to delay this bill to do the broader consultation of the longer term project. It would have meant this bill would not have come through in this term of Parliament, and as I think you have probably picked up, I was pretty committed to getting this work done this term. Therefore we have proposed an approach that will promote, through this bill, equal protection for transgender women, including those that have intersex variations, under our intimate image laws. We have done this in a way that is consistent with terminology used in the ACT, New South Wales, Northern Territory, Queensland and WA, and it is intended to deliver as best as possible equal protection. I do of course understand that there are people that are unhappy with this language, but it would have led to broader challenges and issues about delivering equal protection to transgender women, including those that have intersex variations, in relation to intimate image offences. I wanted to make sure the protection was there without confusing and potentially undermining the intention of the legislation.

Again, I have complete sympathy for this, but we just cannot support the amendments for the reasons that I have outlined. I think I have probably covered it all. As I said, I wish it was different, but it is not. Thank you to those that have made contributions on these particular amendments, but we are just not in a position to be supporting them at this time.

I just want to acknowledge from the perspective of engagement with LGBTIQ+ stakeholders and individuals the extent to which this discussion around the way in which definitions have been outlined in this bill has occurred. As the Attorney has indicated, there are a number of further steps that need to be taken as we continue to work our way through the statute book and to address, identify and then manage discrimination as it stands within laws that currently operate. One of the challenges that we do have in seeking to strike a balance here and to draft in inclusive terms is to work within the way in which the statute currently operates, but I do want to place on the record the enormous levels of good faith and engagement that stakeholders from across LGBTIQ+ bodies as well as people who have experienced discrimination and vilification over many years have come with to bring their views, their context and their lived experiences to the work that government is doing. This has informed much of the work that has taken place, including within the justice working groups that have advised government for a number of years now. So I just want to place on the record gratitude for the honesty, the candour and, in many instances, the very raw experiences from LGBTIQ+ Victorians that have not just been part of this discussion but which will no doubt continue to inform the work that we do in the equality space and in examination of the statute book more broadly.

This is just to the Attorney. Attorney, are you looking at just very neutral language? Obviously we all are human with body parts. I understand the language that you just used earlier, as well as the Greens’ and Ms Shing’s language, around looking for inclusive language, but are we looking for just neutral language, such as nipples and those kinds of things, and being able to define that—as in physical, biological language that we all as humans use?

Not through this legislation, no.

Just through that, obviously there is biological language that we use around sex and sexuality, so is the government just looking at neutral language? I would want neutral human language to describe this bill.

Ms SYMES: I am sorry, Dr Cumming, I am a little bit confused about the elements of the bill that you are wanting me to respond to.

Dr CUMMING: We are responding to images, aren’t we, of people’s upper bodies? Is that what we are discussing? And then we are talking about sexual acts and images that would be considered.

Ms SYMES: I am a little unclear on your question.

The DEPUTY PRESIDENT: Dr Cumming, can you try and make your question a bit clearer?

Dr CUMMING: My question is this. I just heard the Attorney’s contribution on Dr Ratnam’s amendments, as well as Ms Patten’s contribution. The Attorney said that this government understands this debate, is going to go and look further and cannot support Dr Ratnam’s amendments, being that this government is obviously looking for language that could be used. My question is this: is this government just looking at normal biological language that is used—current general language about us all as humans, about nipples and about breasts and about genitalia or vaginas or penises or anuses? Are we going to be using biological language? That is what I would like to know, because I just believe nipples and breasts are different. That is just breastfeeding.

Well, my commitment in response to Dr Ratnam’s amendments is in relation to a broader issue outside of this bill, and we have not done the work. This is about inclusive language, and it is about respectful consideration of how people identify and what laws can protect everyone without causing confusion. We are looking for simple language, of course, but making sure that it applies to everyone regardless of how they identify, how they interact in society and making sure that we have the best laws in the most appropriate language that do not cause offence. This language is offensive to some people, and I cannot fix it today. It is a commitment that it is a broader piece of work around how we can update our statutes to ensure that we are as inclusive as possible in the state of Victoria.

But I would believe that the inclusive language is just the physical, biological language that we have used for a long time, which is nipples and penises. It is just that kind of language that we all have no matter how you identify. We are actually talking about, ‘What is an organ that you would consider to be used sexually and biologically?’. There are certain organs that are considered to be used to actually create sexual gratification or stimulation, and they are normally the nipples and the genitalia, whatever you have got.

I cannot see how this line of questioning is even relevant to the amendments and the clause that we are debating. It is not as far as I can understand.

I thank Dr Cumming for her contribution, and I will take that as a statement. It is not a matter for this bill at this time.

Committee divided on amendments:

Amendments negatived; clause agreed to; clauses 23 to 95 agreed to.

Reported to house without amendment.

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (19:55): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

Third reading

Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (19:55): I move:

That the bill be now read a third time.

The PRESIDENT: The question is:

That the bill be now read a third time and do pass.

House divided on question:

Question agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.