Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020
Ms PATTEN (Northern Metropolitan) (16:19): I am pleased to speak on the Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020. I feel quite privileged to have been in this chamber and listened to so many of the contributions—and some extraordinarily heartfelt contributions. We know that many of the issues that this bill does cover are personal—they are very personal. For some people here they formed part of the pathway to this place. It was some of those experiences that people have shared with us today that formed who they are and formed the members of Parliament that they are today.
Before I get to the matters of most importance in this bill, I would just like to also note—probably as a note to the people who spent all this time writing this bill—that it does address other matters. Certainly it amends the Judicial Proceedings Reports Act 1958 in relation to the circumstances in which information likely to identify a sex offence victim can be lawfully published, and we will get to that in a moment. But it also implements the model defamation provisions, which finally in Australia create uniform defamation laws. It amends the Workplace Injury Rehabilitation and Compensation Act 2013 to exclude the reduction in earnings due to COVID. It amends the Victims of Crime Assistance Act 1996 to provide some delegation for the tribunal staff. It does a range of things around the Corrections Act 1986, and it amends the Forests Act 1958. However, as I mentioned earlier, the point of contention and the source of debate on this bill is the amendments to the Judicial Proceedings Reports Act.
The background, as we know, is that there were unintended consequences arising from a piece of legislation that we debated last year and that the Attorney-General undertook to fix as a matter of urgency. That unintended consequence was the inadvertent silencing of victims who want to tell their stories, and it has been the source of a very strong public campaign. I really would like to congratulate and recognise the work of Nina Funnell, Nicole Lee and many more who have been mentioned here today for the great work that they have done in raising this issue, in raising this intention and in forcing this bill back to the chamber as it is today. But I would also like to recognise the work that they have done in the years before this.
During the break, when some of us were speaking together, we were thinking, ‘This is difficult’. There is no easy path for this legislation. There is no easy path to remedy this—to give the rights to victims to speak while protecting families or protecting victims that do not want to speak. In fact the only solution for this is for people to stop sexually assaulting and raping people. That will fix this. But until we do that, we need to deal with the unintended consequences of the previous legislation, and this bill does go, to some degree, to fixing that. It clarifies those unintended consequences neatly for living victims of sexual assault and really gives them the choice, the control, to tell their own story without those barriers that we put in place of the court process and the attached expense. As I learned from Nina Funnell and her fundraising, sometimes it was in the realm of about $20 000 to get the right to tell your own story. So that is a good thing that this bill does, and it is a widely held view of victims advocates that this bill is on track in that area.
It is funny. I have spoken about my own personal experiences with sexual assault. In fact I put them in a book, and to think that some law would have excluded me from telling my story in my own book is obviously wrong. This bill goes towards fixing that, and it goes towards many of those central issues that Let Us Speak and others have sought to address.
It is so much more complex when it comes to the deceased victims, because sadly they are not here to make that choice. They are no longer able to control their own story. I think that is the matter that we are here to deal with today.
Now, what the government has said is that this issue needs greater consideration. And I think pretty much around this chamber we are unanimous in that. This needs greater consideration, and we need to speak to the victims. We need to speak to the families to find out what that right balance is, because we do not have it right now and I do not think this bill finds that balance. In fact the government acknowledges that. The government has undertaken to sunset any changes made today, which is in effect a guarantee that we will undertake that consultation and we will change this bill that is before us. We either change it today or we will change it later. I would like to acknowledge the work of the Attorney-General’s office, and I have spoken to them many times over the last few weeks about this legislation.
What we are debating here today is not what the permanent law will be; rather it is how we set the law in the interim, while this consultation takes place. It is what the law will be for probably about the next eight months. It is not what the law will be after that. I greatly respect Mr O’Donohue and there are many, many times that I agree with him, but I do not think he acknowledged that this is a temporary measure. He has certainly framed this as a permanent change—that this is setting in stone a situation when clearly it is not. But the matter is: where do we set that default position on the identification of rape victims who are deceased? Do we give the victim’s family the control and say that the media can only report on them with their permission, or do we let the media report freely and publish whatever graphic detail they might like? We know that that has caused extraordinary hurt and harm. We know that quite often the family does not want that detail out there, and certainly I am aware of a family that was incredibly hurt by the media’s reporting of their child’s murder and rape. They had felt that they had no control.
Obviously and absolutely I have no issue with the default position that gives the victims that control over their own story, but the problem with this legislation as it stands before us right now is that it is clunky and it is not nuanced. As a result, it may silence families who want to speak, who have been speaking—as we know, the families of Eurydice Dixon and Jill Meagher, rapes and murders that actually happened in my electorate, in Mr Ondarchie’s electorate, of Northern Metropolitan. Too many rapes and deaths have happened in our electorate, and as Mr Ondarchie says, yes, one is too many.
We have set up this position and it is clunky and does not meet the needs there, because it now makes a process too arduous and it involves a court application for people to continue to speak when they have already been speaking. The question for the time being is: where do we set that default until the government completes that consultation—until the victims and families can talk about where they see the balance and where they think it should lie? How do we find that balance? I would suggest that journalists—and I would include Mr Hinch in that—would prefer that that option is not restrictive, as would many families who are strong enough to speak out publicly about their tragic life experiences.
But sometimes families are not ready to do that, and certainly I know that many of you received a letter from Eileen Culleton, whose sister Anne-Marie Culleton died some 30-odd years ago. She never spoke about it. Her family did not want to speak about it. They did not. It was too painful, and that was honoured and that was accepted. But they did not want to speak about it, and they wanted the right to not have some details said. They were happy and they were grateful that sometimes the police spoke about it and that when the murderer and rapist that killed Eileen’s sister was brought to justice people spoke on behalf of her sister. But some 30 years later she is ready to speak about her sister. She is ready to speak about this, and she should have every right to do that.
But I also know of people—and Ms Crozier mentioned people who were represented in the Betrayal of Trust report—who do not want to speak about the sexual assault and rapes that they experienced as children, and they certainly do not want it spoken about after they have died. They want to take that with them. That is their private and their personal story, and they do not want that released after they have died. So we need to find that balance. We need to ensure that that person’s story is that person’s story, and I believe a number of colleagues have said that probably far more eloquently than me.
We do not want to see those personal tragedies aired after someone has died, retraumatising with graphic details of that tragedy splashed over the paper. On the other hand we do not want to silence people who want to remember, who want to keep talking about this, who want to keep honouring their family member’s death by talking about it, by ensuring that it may never happen again, by talking about it to ensure that the law is changed, that the attitudes change, that our culture changes, that we see a reduction in sexual assault crimes in our state. Sadly, we have not seen that tipping point yet, but I hope that I live to see it.
But we could ask ourselves: if it were your daughter, would you want those graphic details to be freely reported, or would you want some control over that? That is kind of what this bill is about. Some people want both, like Eileen Culleton. They want to be able to grieve in peace and then speak when they are strong enough to do so. Unfortunately having that control and taking that control under this temporary proposal is just too hard. It is too onerous, it is too much of a barrier and the last thing we want to do is punish victims any further and in any way, nor do we want to punish and make it difficult for their families to speak if that is what they want to do. We do not want to unnecessarily preclude people from speaking who want to speak and have been speaking already.
I spoke to the really wonderful and extraordinary woman Nicole Lee, who has been an activist in this area, who tells her story. This morning she said to me, ‘Fiona, what, do I have to put it in my will that I want my story to continue?’. And in some ways this bill actually would insist upon that, and even that may not be enough for her story to continue to be told.
I do not want, in all good conscience, to delay this bill as a whole because of the very significant effect that it has on living victims—that it fixes that, that it lets us speak. But I do not think we have got the balance right on deceased victims. The law could be more nuanced. It could be written in such a way that families who are already speaking publicly can continue to do so. It could be written in a way that does not prevent us from acknowledging Jill Meagher on the anniversary of her death in just a few weeks time and remembering everything that our community learned as a result of her devastating tragedy.
We acknowledge that this is complex and it is going to take time. It is going to take several months of consultation to find the right solution.
The discussion here today was not about what our law will be permanently but how it should sit in the interim as that consultation occurs. I take comfort that the DPP has assured us that she has no intention, and nor does she believe that it would be in the public interest, to prosecute victims’ families if they make comment. Her focus, as it should be, would be on journalists or commentators on social media. Despite this, and for now, I do not think the government’s proposal gets us close enough to where we might eventually land. On that basis, I think almost the status quo might be preferable.
Just to turn finally and quickly to Mr O’Donohue’s amendment, which he contests retains the status quo, I think in fact he is shifting the law in the direction of one or two possible legal interpretations and in doing so is moving the law in the opposite direction to what is desirable and where I expect the government, after that consultation, and where I expect the families and the victims will land. His amendments would also interfere with the DPP’s ability to contact the media, as I know she does regularly, to ask them to amend their reporting when they have overreached or when they have reported in a way that does not accord with the wishes of the victim’s family.
I am supportive of the sunset clause and the guarantee it provides. I understand that Dr Ratnam will be putting forward some amendments that I think actually find a balance for this period while we undertake this consultation. I think it is certainly what the emails—the heartfelt, the honest, the brutally honest emails—that I have received, that we have all received over the last few weeks, want. They do not want us to change this law until they have had their say. On that basis, I am in favour of supporting the significant and important changes that it makes in favour of living victims, but I think we have not landed in the right place for deceased victims. I will not stand in the way of this bill, but I do hope that we can find an amendment that better meets the needs, better meets the wishes, of the families of the deceased victims.