The bill will expand the circumstances in which vulnerable people who are involved in court proceedings as complainants or witnesses are afforded enhanced protections, 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.

In addition, the new reforms will also address barriers that may deter vulnerable people from giving evidence by introducing evidence recording hearings and allowing for that recording to be used in subsequent trials and retrials and will ensure that victims and survivors can speak out about their experiences, by clarifying that they may publish self-identifying information, or give their informed consent to a third party, such as a media organisation, to publish that information.

“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,” Attorney General Mark Dreyfus said in a statement.

“The reforms were developed in consultation with stakeholders, including victims and survivors and their advocates. I thank them for sharing their experience and expertise.”

The bill also implements a number of 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).

In conversation with Lawyers Weekly, Hamilton Janke partner James Janke said that the bill is a “major step” from the Commonwealth government to bring federal law in line with state laws.

“The amendments also seek to allow survivors to speak out about their experiences in court, by permitting them (or a third party with their consent) to publish ‘self-identifying’ information. The primary objective of the draft legislation is clear, in that it seeks to encourage survivors of sexual violence to feel safe in reporting, whilst also feeling reassured that if they do so report, they will be protected throughout the ensuing court process,” he said.

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“However, the ancillary objective of the bill must also be to promote healing for survivors, so as to minimise the extreme social cost that sexually violent offending has on the community, for example the stress it places on the federal health care and welfare systems as a result of the extreme adverse outcomes which are often experienced by survivors and which were well documented in the Royal Commission into Institutional Responses to Child Sexual Abuse.”

A spokesperson for 1800RESPECT also voiced support for the bill.

“Violence of any kind is not OK. It is important that people know that whatever their situation, there is help and support available. We encourage anyone affected by sexual violence to seek assistance through appropriate services such as 1800RESPECT for counselling, information and support, or other state- and territory-based services,” the spokesperson told Lawyers Weekly.

“Any measures that support and safeguard people who have experienced sexual violence are welcomed.”

But these reforms, president of the Law Council of Australia Greg McIntyre SC noted, must be balanced against the “fundamental right to a fair trial”.

“The Law Council supports appropriately framed procedural reforms designed to minimise any traumatisation for parties identified as being vulnerable in Commonwealth criminal proceedings, noting that any such reforms must be carefully balanced against the fundamental right to a fair trial, which requires that the accused be able to test the evidence,” he said.

“The bill seeks to expand the circumstances in which vulnerable people are afforded enhanced protections; however, this expansion is for a finite list of offences, including crimes against humanity, war crimes and drug offences involving children.

“The bill also allows for a court to order an evidence recording hearing for a vulnerable person to give evidence, if satisfied that it is in the interests of justice to do so. This is broadly consistent with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse as they relate to vulnerable witnesses.”

Despite these positive changes, accredited specialist in criminal law and Streeton Lawyers principal lawyer Justin Wong said the practical effect of these reforms will be “limited”.

“The proposed changes only apply to prosecution of Commonwealth sexual violence crimes and not state or territory prosecutions. The vast majority of sexual crimes fall under state or territory legislation, so the practical effect of these new changes will be limited. Also, some of the protections reflect what is already in place under state legislation. The recording of a complainant’s evidence so it can be replayed at a later trial has been in practice in NSW for some time.

“However, some of the changes go further than current state legislation. The restrictions against evidence of a complainant’s prior sexual experience would be limited to only evidence of sexual activities with the defendant. This is narrower than the current NSW provisions,” he explained.

“Further, although NSW currently allows for the pre-recording of evidence in child sexual assault matters, the proposed Commonwealth changes would allow the pre-recording of evidence in matters involving adult complainants. The wider expansion of pre-recorded evidence before a jury is a significant change to the way criminal trials have historically run. The bill is still yet to be reviewed through the committee process, and it will be interesting to monitor how the likely impacts are assessed.”