Defence lawyers will not be allowed to delve into the sexual history of alleged victims during rape or sexual assault trials, under a new federal government bill on Feb. 7.
The Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill will “make evidence about sexual reputation inadmissible for all victims and survivors of child sexual abuse, and place greater restrictions on evidence relating to a person’s sexual experience,” said Attorney General Mark Dreyfus in a statement.
However, the Law Council of Australia has aired several concerns about the changes and whether they will impact the operation of fair trials.
Meanwhile, the Bill will enhance protections for vulnerable people involved in court proceedings as complainants or witnesses.
Recorded Evidence Permitted
It will also permit evidence to be recorded, and allow for that recording to be used in subsequent trials and retrials, which Mr. Dreyfus said will “address barriers that may deter vulnerable people from giving evidence.”He did not clarify how defence lawyers would then exercise their right to cross-examine the witness.
The government says the Bill implements several outstanding recommendations from the 2017 Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, and supports the National Strategy to Prevent and Respond to Child Sexual Abuse (2021-2030).
“These reforms support victims and survivors engaged in the Commonwealth criminal justice system, while maintaining due process protections and ensuring that defendants continue to be tried fairly and impartially,” said Mr. Dreyfus.
He revealed the reforms were developed in consultation with victims, survivors, and their advocates.
“I thank them for sharing their experience and expertise,” he said.
Recorded Evidence May Impact Fair Trials: Law Council
The Law Council of Australia—the peak body for the state law societies—said in a submission that while it generally supports the Bill, some aspects, particularly the provision allowing for pre-recording of evidence “lack necessary detail to effectively guide the courts, complainants, and the accused.“This risks the possibility of delays and appeals as courts try to determine Parliament’s intention. The lack of procedural fairness safeguards, such as the requirement for complete disclosure before pre-recording commences, also risks unfair trials.
Who is a ‘Vulnerable Witness?’ Council Asks
It also noted that the Bill did not define who comprised a “vulnerable witness,” despite offering that class of person protections.“The Law Council supports protections applying to proceedings involving child complainants for this broader range of offences, however, it does not support the automatic application of the protections to adult complainants,” it said.
Other concerns included a provision that allows a court to make a direction about the duration of questioning of a vulnerable person.
“Whilst it is acknowledged that it may be appropriate to make a direction that allows a vulnerable witness sufficient breaks, the Law Council is concerned that this provision might be used to put a time limit on the evidence given by the witness,” the submission said.
The government has introduced the Bill despite having tasked the Australian Law Reform Commission (ALRC) to inquire into how the justice system handles sexual violence just two weeks ago. The report from the ALRC inquiry is not due until Jan. 22, 2025.
