Considerable CLA effort, along with that of experienced and astute lawyers, has produced much-improved sexual and violent offences legislation in the ACT. The CLA-inspired changes better define violence, allow the media to cover cases, and make videoing rules fairer.  CLA’s lingering concerns about evidence rules are likely to be tested in superior courts.

CLA’s actions produce fairer laws

By Lance Williamson*, CLA Director and Webmaster
Civil Liberties Australia had been concerned for more than 12 months over how the ACT Government was developing new laws on sexual assault.  The initial Sexual Assault Reform Program report, produced in 2005, was extraordinarily unbalanced because police and victim groups developed it without consulting groups with a possibly differing viewpoint.

The police, Director of Public Prosecutions and the ACT Government wanted new legislation to boost the number of convictions in sexual assault prosecutions, basing their approach on the inappropriate desire for a greater “success rate” rather than striving for highest-possible fairness to alleged victim and alleged perpetrator.

CLA sought to have an experienced female defence barrister included in a government working group: that offer was rejected by the ACT Attorney-General, Mr Simon Corbell.

CLA has ongoing concerns if the way this particular Bill has been handled is a pattern for the future:  the A-G ignored constructive consultation, and produced a fait accompli draft Bill at virtually the last possible moment.

The Attorney-General advised CLA on 5 March 2008 that:

"Department  of Justice and Community Safety officers will contact you shortly to provide you with information relating to the proposed amendments so you are in a position to provide your views prior to the legislation being introduced" (emphasis added).  

That did not happen. CLA was advised on 29 April 2008:

"I am hopeful of having a draft Bill on the proposed sexual assault legislation by mid-year. I believe that organisations like your own, the Bar Association, the Law Society and the Legal Aid Commission will want to see the detail on any proposed legislation…
I plan to introduce the Bill and leave it lie on the table to give organisations like your own a period of time to comment on the substance of the Bill…

While the Attorney-General did seek CLA’s comments, this occurred after the tabling of the Bill when time frames were extremely tight.   The Bill caused considerable difference of opinion, and required a much longer – proper – consultation period and process. While the President of ACT Law Society publicly supported the Bill, many Law Society members had a different view.

Most importantly, the breadth of the proposed law had moved from sexual assault to any violence offence, no matter how minor. There was never any consultation on this shift, which was either an ill-considered, last-minute proposal or a tactical deceit.

Effectively, the government proposed that the Bill would:

  • elevate the full range of violence offences, including minor ones, up to the same standing as sexual assault.  CLA believed this was unnecessary and excessive, and that the Bill needed to more selectively define violent offences;
  • limit the right for a person to conduct their own defence (and cover a range of offences that were minor and did not need the protection envisaged).  CLA sought court discretion to decide whether to allow a victim to be cross-examined by the accused;
  • make no clear rules that the video coverage would be fair. CLA agreed with the Government’s audio-visual approach, but sought to ensure that the body language and demeanour of a witness be observable in the video; and
  • close the court to all but a select few.  CLA believed that the courts should allow open, transparent and accountable court processes and avoid the stigma of a ‘secret trial’.

CLA also believed the proposed committal process reduced the chance to decide if a claim was without merit: the outcome could be an accused held in remand unnecessarily.  Many cases have no witnesses to the alleged offence: guilt is often determined by evaluation of each testimony.

CLA wrote to the Attorney-General on its reservations, and lobbied all parties on the merits of the Bill, with the Green’s and the Canberra Party showing particular interest in CLA concerns.

While the Bill lay on the table, CLA also became aware of barrister Ken Archer’s opinion that the Bill was unworkable and could fail in a test of its legality in court.  CLA sought its own opinion which supported that of Archer.

In the ACT Legislative Assembly debate of the Bill:

  • the Government amended the definition of violence along the lines that CLA had sought;
  • the Greens’ moved amendments to the Bill, with the Government agreeing that:
    • media could have access to a closed court and report, subject to certain disclosure requirements;
    • court rules for audio-visual images would produce an outcome similar to what is seen by a jury and judge in a conventional setting;
  • the Government continued to maintain that Mr Archer’s and CLA’s opinions on the evidentiary aspects of the law were wrong, although it has offered no counsel opinion explaining why the opinions are wrong.  The ACT Opposition ‘hoped’ the Attorney-General was right on this important aspect of the legislation. Superior courts are now likely to have to decide the question on appeal – causing more trauma to alleged victims (precisely what the ACT Government was supposedly trying to avoid).

Through CLA’s efforts the ACT now has a far better law that attempts to strike a proper balance between an alleged victim achieving justice and an accused person receiving a fair trial.

Proper consultation by the ACT Government in the first place – as offered by CLA a year ago – would have avoided last-minute changes to the draft legislation and ensured the passage of a law without the current considerable doubt still hanging over it.

 CLA Director and Webmaster Lance Williamson led the campaign to improve this important legislation, and to counter the ‘numbers game’ approach of police, prosecutors and the ACT Government seeking to improve annual conviction rates.

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