Perin Davey (NSW, National Party, Shadow Minister for Water) Share this | Hansard source

Thank you very much for foreshadowing what I was going to ask you to do. That's great. I want to cover off some key points from the opposition's point of view with regard to amendments. The coalition by and large supports these government amendments. We acknowledge that they're absolutely necessary to correct original drafting errors in the bill, and we absolutely acknowledge and welcome the changes to address Senator Scarr's concerns, as reflected in his additional comments on the report. We want to commend the work of the committee and, once again, commend Senator Scarr for his forensic work, which has led to detailed and specific recommendations which improve the bill. We welcome the changes that will also deal with the audio recordings and the cross-examination issues. They are material improvements to this bill.

We welcome, in particular, the amendments to items 23, 24 and 26 of the bill, which substantially repair the errors that were in the original legislation. They're not quite there yet, however, and that is why we're proposing further amendments. These changes go to an issue that is technical but important. We are happy to support the government amendments, which are necessary to correct those issues, but the coalition will be bringing forward amendments, on sheet 2990, that will make changes to the government amendments.

Our concerns, as I mentioned, are technical but very important. They relate specifically to item 24C in amendment (9) and to amendment (14). Both of these amendments, as drafted by government, are essentially for the same thing. Relevantly, they remove the court's ability to admit evidence that is relevant and probative, unless the evidence is of a sexual activity that forms part of a connected set of circumstances or, in the case of a defendant, relates to sexual activity in the recent past. The concern is that there are types of evidence that the court could be prohibited from admitting—evidence of non-recent sexual activity or subsequent activity which is not otherwise connected but which could be used to prove sexual offences against children and vulnerable adults. It's technical, yes, but serious. Our concerns relate to context evidence, tendency evidence and the admissibility of evidence about non-recent or subsequent offending.

In sexual assault cases, prosecutors will sometimes lead evidence about the relationship between the complainant and the accused for the non-tendency purpose of placing evidence of the specific act charged into its true and realistic context. This is done to assist the jury to appreciate the full significance of what would appear to be an isolated act occurring without any apparent reason and to establish a sexual relationship that makes the complainant's evidence of the specific act that is charged more likely to be true. If evidence about sexual abuse by a defendant is not part of a connected set of circumstances, the court would have no discretion to admit the evidence, unless it was in the recent past, and evidence about unconnected sexual activity which was not recent or which was subsequent to the offence would be inadmissible. In some cases, this could mean that a child could not contradict evidence given by their alleged abuser. We think that it is better to leave these decisions to the court rather than setting concrete rules down in law.

Similarly, in some cases, such as multiple-complainant sexual offence cases, prosecutors will sometimes lead evidence about offending which is not part of the connected set of circumstances in which the offence was committed but nevertheless shows an accused has a tendency to act in a particular way. The court should have the discretion to admit this type of evidence about abuse if it is probative and relevant.

Similarly, on occasion, courts will receive evidence about non-recent or subsequent sexual offending. This may happen in sentencing proceedings in the course of a victim impact statement. We do not want victims prohibited from giving that kind of statement. The amendments that we propose on sheet 2990 go to only those two provisions, and I commend them to the Senate.

I also quickly want to cover the amendment on sheet 2942. It provides for a basic review provision designed to ensure that this chamber has the opportunity to consider whether this bill is working as intended. As my colleague Senator Cash mentioned in the second reading debate, we support the intent of this bill. But the egregious mistakes and errors in the original draft legislation were found only because we went through a process of basic scrutiny through a committee, and that should be par for the course. What the amendment on sheet 2942 will do is require a further review after 12 months and that a report must then be tabled in parliament. It's a very simple, very straightforward measure which should be a no-brainer. I commend it to the Senate.