Inquiry into the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024

Liberty Victoria is committed to the defence and advancement of civil liberties and human rights. We seek to promote compliance with Australia’s obligations under international law as recognised in various State and Federal human rights instruments such as the Charter of Human Rights and Responsibilities Act 2006 (Vic), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). As such, we frequently contribute to federal and state committees of inquiry.

The members and office holders of Liberty Victoria include persons from all walks of life, including legal practitioners who appear in criminal proceedings for both prosecution and the defence. More information on our organisation and activities can be found at: https://libertyvictoria.org.au.

The focus of our submissions and recommendations reflect our experience and expertise as outlined above. Some of the following is drawn from work undertaken by Liberty Victoria in response to previous inquiries and proposed legislative reforms.

The principal objective of Liberty Victoria is to ensure people’s rights, freedoms and dignity are valued and protected.

Liberty Victoria supports the introduction of measures to better support vulnerable persons appearing as complainants and/or witnesses in Commonwealth criminal proceedings, insofar as the accused’s fundamental right to a fair hearing and the presumption of innocence are not adversely affected.

The proposed changes to the Crimes Act 1914 (Cth) (Crimes Act) include:

• expanding the range of offences to which special rules for proceedings involving children and vulnerable adults apply in order to more comprehensively protect vulnerable persons;

• making evidence of a child or vulnerable adult complainant’s reputation with respect to sexual activities inadmissible;

• restricting the admissibility of sexual experience evidence of vulnerable adult Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 Submission 10 3 complainants unless the court grants leave and considers specific criteria, including that the evidence is substantially relevant to facts in issue in the proceeding;

• introducing evidence recording hearings to allow a vulnerable person to have their evidence recorded, which can be tendered and relied on as evidence in any subsequent trial or retrial;

• introducing an offence to deter misuse of the recorded evidence of a vulnerable person; and

• clarifying that the current restriction on publishing material that identifies (or is likely to identify) another person as a child witness, child complainant or vulnerable adult complainant in a proceeding does not apply to a vulnerable person who publishes self-identifying material, as well as streamlining the requirements for another person to publish the identifying information of a vulnerable person with their consent.

We have supported previous reforms to the laws governing sexual offences such as amendment to the law of consent now reflected in Part 5, Division 1 of the Jury Directions Act and s 36 of the Crimes Act 1958 (Vic) as well as the introduction of intermediaries to ensure that persons with cognitive impairments and children are afforded equal participation in the criminal trial process.1

However, Liberty Victoria advocates a very cautious and selective evolution of the criminal law in circumstances where unnecessary added complexity could create injustice for accused persons. Further, some of the proposed amendments would be much more restrictive than equivalent provisions in Victoria and New South Wales, meaning that there is an inequality for those who are charged with Commonwealth offences. The proposed provisions have a real risk of resulting in miscarriages of justice.

Read more