Have you ever wondered how our politicians manage to read and comprehend all that complicated legislation that gets presented to parliament and that they vote into law? The dirty truth is that almost none of them read almost any of it.
Want some proof of that outrageous accusation? OK.
Not long ago, Victorian Attorney-General Jill Hennessy presented to the Victorian parliament a bill making sweeping amendments to that state’s evidence laws, specifically to address the culture of suppression that has infected Victoria’s justice system in recent years, and to reinvigorate the principle of open justice.
Among these reforms, Hennessy told parliament, was a critical amendment to the Judicial Proceedings Reports Act to make it much easier for victims of sexual assault offences to tell their stories and publicly self-identify. The bill was passed with bipartisan support and much congratulation.
This is the status of the law in Victoria now, if you are a victim of a sexual offence. You tell me whether parliament has done a good job.
- If you have not made a police complaint, your identity can be published even without your consent
- If you have made a complaint, but criminal proceedings are not pending (no charges have been laid), your identity can only be published either with your consent or with a court order allowing it
- If criminal proceedings are pending, your identity can only be published with a court order
- If the proceedings have ended in a conviction, your identity can forevermore be published only with your consent (provided you’re over 18) and a court order (both are required)
- If the proceedings have ended with an acquittal, we go back to the second option, meaning your identity can be published either with your consent or a court order.
So – the victim of a convicted rapist can never, even decades later, self-identify without committing a criminal offence, unless they go to court and plead for an order allowing them to do so. However, the victim of a rapist who was acquitted at trial can go out and tell their story freely (subject only to the risk of a defamation suit).
That is, Cardinal George Pell’s alleged victim could now consent to the media identifying him, without breaking the law. However, the victims of the paedophile priest Gerald Ridsdale, because he was convicted, would need a court order to do the same thing.
I have a client who would like to tell the story of how she was serially raped by her father. Because he was convicted, we need to apply to the Victorian court, pay a filing fee, get her to swear an affidavit and ask a judge to give her permission to tell her own story. If she had never reported the rapes to the police, none of that would be required.
I cannot even begin to describe how messed up this law is. Its disregard of the rights and interests of victims, the principles it was advertised as promoting, is nauseatingly obvious. It entrenches a 19th Century concept of patronage; that survivors do not know their own minds, do not control their own bodies, cannot be trusted to have ownership of their own stories. On top of which, it cannot be navigated without a lawyer and a compass.
Frank Vincent, whose review of Victoria’s laws in 2017 led to these reforms, pointed out that the recent royal commissions into institutional child sexual abuse were “testament to the power and value of survivors of sexual abuse and family violence telling their stories”.
He also noted that “an increasing number of victims reject the absurd notion that they have been in any way diminished by the commission of criminal acts committed against them by another and are prepared to have their identities disclosed”.
Those comments were quoted in both houses of Victoria’s parliament in support of the law reform, which has made it harder for survivors to tell their stories.
The bill was made law in late 2019. Victoria stands alone as the Australian jurisdiction which has expressed, through its legislation, the least respect for the interests and dignity of survivors of sexual violence. And it did that while congratulating itself for achieving precisely the opposite result.
That’s what happens when the people we pay to understand the laws they’re passing, can’t be bothered.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
The writer’s firm Marque Lawyers is directly involved in a campaign to overturn the Victorian law.