Crimes Amendment (Sexual Offences) Bill 2016

Ms PENNICUIK (Southern Metropolitan) — The Crimes Amendment (Sexual Offences) Bill 2016 is a very important piece of legislation for us to be discussing tonight. It is in fact a very complex area of the law and a very concerning and sensitive area of the law as well, and that is reflected in the bill itself, in that it is a complex bill. It is a technical bill, which mainly makes amendments to the Crimes Act 1958, the Summary Offences Act 1966 and the Jury Directions Act 2015 and also makes amendments to 18 other acts. It is a comprehensive, complex, technical bill dealing with a very important area of the law that covers offending that can have profound and lifelong effects on people who are the subject or the victim of that offending.

As the Attorney-General outlined in his second-reading speech, it is some 25 years since sexual offences in general have been amended in the state of Victoria and more than 20 since the child pornography laws were introduced. It is 12 years since the Victorian Law Reform Commission 2004 report into sexual offences and problems with the law was tabled. That report pointed out that problems with the laws had led to many appeals and retrials and that the sexual offences laws as they currently existed were not always clear to the courts, the judges, the juries, the lawyers, the victims and the public in general. Much of the terminology that is used is outdated and can be vague in the use of terms such as 'indecent' and 'obscene', which are very unclear terms and certainly subjective. In the time span that I have been alluding to there have been quite changed family relationships, the issues of domestic violence and child abuse have come much more to the fore — and rightly so — and there has also been massive change in technology that has also impacted on this area of the law.

According to the second-reading speech, the aim of the bill is to ensure that sexual offences under the law are as clear, consistent and effective as possible, and of course we would all support that. The Greens broadly agree that the bill does this, as do the major interested stakeholders — for example, the Victorian Centres Against Sexual Assault (CASA) Forum, the Law Institute of Victoria and the Federation of Community Legal Centres, although some specific and particular concerns have been raised around some areas that the bill goes to. The major areas that the bill addresses are sexual offences against children, child pornography and child abuse material, incest, sexual offences against persons with cognitive impairment or mental illness, new offences of sexual activity directed at another person and jury directions on consent and reasonable belief in consent. These are all very important areas and, as I said, in need of updating and clarification to make it easier for the courts to deal with these mostly very distressing cases that come before them.

In fact the bill, as the attorney says, overhauls and modernises more than 50 sexual offence laws across the acts I mentioned earlier.

The key aspects of the bill are to insert new definitions under clause 5 and in particular to insert a new subdivision (8B) pertaining to sexual offences against children, which will replace existing sexual offences against children with a comprehensively reformed set of offences. This will cover sexual penetration of a child, sexual assault of a child, sexual activity in the presence of the child, causing a child to be present during sexual activity and encouraging a child to engage in sexual activity. These offences will apply to children under 16 and to children aged 16 or 17 under the care, supervision or authority of the accused.

There are some other particular offences, and the provisions contain various defences to offences and exemptions which specify when an offence is not committed. This includes the element of consent where the child is at least 12 and the age difference is no more than two years under new section 49V, but sections 49D, F and H, where the child is at least 12 and the age difference is no more than two years, do not provide for the defence of consent. This is a recognition of the inability of children to provide informed consent.

One of the issues that has been raised, and I will ask the minister about this, is the use of the term 'community standards', which I think is not as precise a term as we could use in this area if the aim is to have clarity and consistency. We are getting rid of some vague terms, but I think that is perhaps introducing another vague term. We will be questioning the minister on the background regarding that.

Generally we support these reforms so that the laws will comprehensively address all sexual offending against children and also ensure that the penalties reflect the gravity of the offending. The bill increases the penalty for sexual penetration of a child under the age of 16 from 10 to 15 years.

Another key area where the bill makes changes is the replacement of the term 'child pornography' with the term 'child abuse material'. The definition of child abuse material includes all material depicting a child as a victim of torture, cruelty or abuse, whether or not it is in a sexual context. This change will bring Victoria in line with other Australian jurisdictions. Of course just to think about depicting a child as a victim of torture, cruelty or abuse is somewhat disturbing. As previous speakers have said, the fact that this type of offence appears to be increasing is of huge concern to the community. I agree with Dr Carling-Jenkins, who spoke earlier on this bill, that it is good to see more attention being paid to these issues, but the community needs to be aware of the growing incidence of it and the growing insidiousness of it as well.

Under this particular new division, subdivision (8D), there is the introduction of two new offences, which are the offence of distributing child abuse material, which recognises that distribution can happen online through simply making material available, such as by uploading a file to a file-sharing website, to an email account or even to a chat room, and the offence of accessing child abuse material, which will target the intentional viewing of child abuse material. This offence will also apply to the intentional viewing of physical child abuse material and to other forms of technology, such as mobile phone applications that are designed for one-off viewing. Both of these new offences will carry a maximum penalty of 10 years imprisonment. The same penalty will apply to child abuse material offences, such as production involving a child and possession, and also provides for sexual conduct directed at a child through the use of technology such as Skype or Snapchat.

Exceptions to children apply that were introduced following the parliamentary inquiry into sexting and have been clarified and simplified in this bill. Other exceptions and defences have had increased safeguards applied, for example, preventing the use of a defence where an image depicts a criminal offence punishable by imprisonment. The bill also reforms the process for disposal of child abuse material, allowing a court to order the disposal of encrypted or password-protected data where the court is satisfied there are reasonable grounds to believe the data contains child abuse material. We are very supportive of these reforms, as are the major or key stakeholders who have been involved.

I should say that the genesis of this bill goes back to the previous government. Submissions were made to the previous government by the stakeholders that I mentioned earlier and indeed have been made as recently as early this year and only a couple of months ago on some of the provisions of the bill. The Attorney said there has been extensive consultation on the bill — we do accept that — and of course there should be with the particular organisations that I mentioned, who are in daily contact and are dealing with these types of issues on a daily basis.

One of the things to note, of course, is that with the changing of the terminology from 'child pornography' to 'child abuse material' the CASA forum have stated that they are supportive of that proposed change in terminology. However, they have expressed that the influence of adult pornography is playing an increasing role in how young people learn about, think about and experience sexuality. The community needs, I think, to turn its mind to the increasing effect that this material is having on some certain sections of the community in a negative way.

The bill also inserts a new subdivision (8C) with regard to incest and, as the Attorney says, seeks to clarify and modernise incest offences to more clearly reflect the variety of family structures covered by the offences and to protect children within all families. It makes it clear that stepchildren by marriage and stepchildren by domestic partnership are given equal protection from sexual penetration by a step-parent or a lineal ancestor. It expands the coverage of the offence of sexual penetration of a stepchild and introduces an exception for sexual relationships between adult stepchildren and step-parents where the stepchild has never been under the care, supervision or authority of the step-parent and no sexual activity has occurred between the step-parent and the stepchild when the stepchild was under 18.

There have been some submissions and comments regarding the incest provisions. For example, in their submission to the Department of Justice and Regulation earlier this year, the Federation of Community Legal Centres Victoria outlined their concerns. Key to the point they were making was that the key aspect of the crime of incest offences should not be the fact of the relatedness per se, but rather the coercion, power or exploitation involved and that the familial relation is more, in their view, an added factor that makes the crime more heinous. You could call that an aggravating factor.

So they have proposed that what is needed is the same schedule of general sexual offences for non-familial sexual offences but specifically also applied to situations where the accused and the victim are defined as family members and therefore attracting a higher penalty than for non-family sexual offences and without the availability of exceptions or defences. They posit that the retention of incest as a separate section or category of offences could lead to potentially anomalous outcomes.

In considering that issue, I think there is value in what they are pointing out in terms of the way the bill has basically been structured. While a whole rewrite of certain sections of the legislation has been done, this one has not necessarily been rewritten in the same context, I suppose you could say. It should be noted, too, that the Court of Appeal has recommended that judges hand down higher sentences in incest cases to better reflect their gravity and the long-term harm done to victims, particularly child victims.

The other major area the bill goes to is in new subdivision (8E), which relates to sexual offences against persons with a cognitive impairment or a mental illness. The reforms in this subdivision adopt new terminology and a structure to ensure that the offences will work effectively in the new service environments of the national disability insurance scheme and localised mental health treatment as well as in traditional service environments such as residential care, and will include sexual offences that are not tied to the location in which the services are delivered. The offences are based on the vulnerability of the persons in the context of the care-giving relationship, so they are not dependent upon or precluded by the legal capacity to consent. Where a person does have the legal capacity to consent, the offences of rape and sexual assault will apply.

New offences have been introduced, such as targeting sexual activity in the presence of a person with a cognitive impairment or mental illness and causing a person with a cognitive impairment or a mental illness to be present during sexual activities. Both of these new offences will have a maximum penalty of five years imprisonment. The Greens support these reforms to protect persons with cognitive impairment or mental illness and to hold perpetrators to account. We note that CASA Forum are also supportive of these reforms and refer to the Women with Disabilities Victoria 2014 research paper, Voices Against Violence, which revealed that women with disabilities are at greater risk of experiencing violence compared with both men with disabilities and women without disabilities. Further, it was found that women with intellectual disabilities are at a considerably heightened risk of experiencing sexual assault compared with other women with disabilities.

CASA Forum also suggests that more work is needed to support people with cognitive impairment or mental illness in reporting sexual abuse and increasing their access to therapeutic counselling and support services. Again, it is disturbing that people in such a vulnerable situation can be at risk of the offences that we are talking about here this evening.

Other new offences covered by the bill are in clause 48. A new offence will apply where a person engages in a sexual activity intending that another person will see it and experience fear or distress. Clause 15 inserts new section 45 into the Crimes Act 1958 to make it a crime to procure a sexual act by telling lies or half-truths.

The Scrutiny of Acts and Regulations Committee (SARC) raised some particular concerns about this section, which I may return to during the committee stage. There is also new subdivision (8F), which replaces existing sexual servitude offences by largely replicating existing sex offences. This has been redrafted for consistency in structure and style. Also, some of the offences will introduce a new limb — that is, where a victim is not free to leave the place where commercial sexual services are provided.

The last major area of the bill is jury directions on consent and reasonable belief in consent — part 4 of the bill amends the Jury Directions Act 2015. The trial judge will be able to inform the jury that experience shows that there are many different circumstances in which people do not consent to a sexual act, that people react differently and that there is no typical, proper or normal response to non-consensual sexual acts. People can be involved in sexual activity on some occasions but not consent to a particular act with a particular person on others. Also, on the reasonable belief in consent, the trial judge may direct a jury to take into account personal attributes and characteristics of the accused, such as mental impairment of the accused. Also, in assessing whether reasonable belief was reasonable the test will involve considering what the community should reasonably expect of the accused in the circumstances. A further new direction is that a stereotypical belief in consent based solely on a general assumption about the circumstances in which people consent is not reasonable.

In a previous bill on this particular topic the Greens did move an amendment which stated that these jury directions should in fact be mandatory and not discretionary because this is an area where the community is not always fully apprised of the particular directions a judge may give. Relying on the barristers to request it, we think, will fall short of the mark until we get to a point where the community is much more aware of the issues around these particular areas of consent and reasonable belief, because they are not well understood by the community. Therefore in terms of making sure that juries and everybody in the court dealing with these issues actually understand what is at stake, judges should be required to give these directions to make sure that juries are on top of what they are dealing with in these very complicated and often very disturbing cases.

It is worth congratulating the Scrutiny of Acts and Regulations Committee and its secretariat staff for the very comprehensive report they wrote on the bill — 15 pages. They wrote to the minister raising a large number of questions about some of the issues that I have touched on already. Members may recall that the minister's response, which itself is six pages, was only tabled last week. I had said to the government that given the very complex and important area of law the bill is dealing with and the quite extensive overhaul of the existing laws it proposes, it would be of benefit to members to have some time to actually read what the Attorney-General has said in response to some of the issues raised by the Scrutiny of Acts and Regulations Committee.

I note that the Attorney-General in his response to the Scrutiny of Acts and Regulations Committee has I think comprehensively answered most of the questions raised by SARC, but not all of them, and has made the comment in certain instances — in fact on three occasions in his response — that those particular issues will be addressed in further legislation.

I spent some time last week going through this, and on Friday I wrote to the Attorney-General asking him to delay the bill. I basically said that after considering the bill and the SARC response and the minister's response to it I was of the view that there were still certain aspects of the proposed legislation that raised concerns and would benefit from further consultation with key stakeholders. The issues I raised were: the incest provisions, which still seem unnecessarily complex; the language used in clause 24 dealing with indecent or offensive exposure, and which the minister stated in his response may be considered in a later bill; and also the provisions on sex offences against children where there is a similarity in age, as the application of the defence of consent requires further clarification, as does the term 'community standards'.

I made the point that:

Given the bill overhauls sex offence laws in Victoria, ideally any amendments required to improve these laws should not be left to later legislation. This is a complex area of law and it is imperative that all areas of reform undertaken by this bill do improve the criminal justice system and ensure that the law is clear and fair, with minimum requirement for further amending bills.

So where the minister has said, 'We'll bring in another bill', I would have thought it would have been better, if he is intending to make the change, to just make the change by way of house amendments, which could have been done this week, rather than waiting for a future date, given that this is a comprehensive overhaul of the laws in this area.

I also made the point that:

This bill also provides the opportunity to include all necessary reforms such as amending the failure to disclose provision under section 327 of the Crimes Act 1958 with a provision that ensures that the particular vulnerability of women who are victims of family violence is taken into account —

in terms of that provision, which imposes a duty on all people to report sexual offences against children but does not include that particular vulnerability in terms of the Crimes Act 1958.

The Attorney-General very quickly wrote back to me, on Monday. He mentioned, in terms of the issues I raised in terms of incest, that the provisions in the bill would clarify and simplify the current provisions by making it clear which family relationships are covered and would ensure that certain people are excluded from the offence provisions, such as victims of child sexual abuse in the new section 50J(2), and that refers to where a person who is a victim of child sex abuse but then becomes an adult and is still involved in that abuse cannot then be caught up under the new law. But he did not go to the other complexities that have been raised by others regarding those provisions.

With regard to indecent exposure he said:

The government proposes to clarify the wording of this offence, and will ensure that those amendments commence at the same time as the proposed new sexual offence provisions.

So perhaps a new bill will be rushed in to deal with those. He went to quite a level of detail regarding the new section 49 and all its variously numbered provisions that I think take up the whole alphabet, basically. It is a bit of an issue with this bill, the renumbering and lettering of the bill — it is something I have raised before — particularly if you are going to go to the trouble of overhauling a whole section of the law, or of the act, and still be introducing all these provisions with letters at the end and new provisions.

If you go through this new section 49V, there is an awful lot of cross-referencing between new sections 49A, B, C, D, U, V, T and S, and I am not sure that that does entirely simplify things. Simplifying is an aim of the bill and clarification, consistency and effectiveness are aims of the bill, and I am not sure that we have got simplification as well as we may have got clarification and consistency.

With regard to the failure to disclose offence, the Attorney-General said that the Royal Commission into Institutional Responses to Child Sex Abuse is expected to release a consultation paper early next month, which will consider, amongst other things, the effectiveness of reporting offences such as the failure to disclose offence under section 327 of the Crimes Act. The commission's final report on criminal justice matters will include recommendations and is expected next year, and the government will carefully consider all the recommendations. The Attorney-General believes it would be not appropriate to pre-empt the commission's findings on this issue and delay debate on this bill. Well, I take that as read. I am glad the Attorney-General said that he will take it into consideration, because it certainly is an area where people can be caught up due to their particular vulnerabilities and sometimes horrific domestic situations.

While there are some specific areas of the bill where some concerns or queries have been raised, I also indicate that the Greens will support the bill. We generally feel that mostly it is going to improve this area of the law and make it easier for the courts to deal with it, but it is something that the government will definitely have to keep an eye on to make sure that that is in fact happening.

Committee Stage:

Ms PENNICUIK (Southern Metropolitan) — I do concur with the point that is being made by Mr Rich-Phillips in that if you read the second-reading speech, it is really a basis on which the government is proceeding with this legislation, which does make very substantial changes to the Crimes Act in particular with regard to these offences. I think that all parties, apart from certain particular issues we have raised, are generally supportive of that. I am not trying to steal Mr Rich-Phillips's thunder, but under the established case law here we do need to have that basis. I am actually surprised that the statistics were not included in the second-reading speech. I think it is not just for the benefit of Mr Rich-Phillips and me; it would also be for the benefit of the committee and the general community to have those statistics. They must be available if the government has made the claim in the second-reading speech. I just think it is part of the general context, and if the minister could provide it, that would be good.

Mr HERBERT (Minister for Training and Skills) — I have given my answer: if I can, I will. I will say we have wasted 6 hours between the Greens and the opposition today on a tactic to delay the government's bill. This is a very, very important bill, and I would be shocked, as would so many in the Victorian community, if because of the internal tactics that are being played out today this bill was delayed.

Ms PENNICUIK (Southern Metropolitan) — Following on from everything that Ms Patten has said, on a straight reading of this new section 45 it does look as if a person could incur the penalty there, which is five years maximum — level 6 imprisonment — for intending that a sexual act would occur with another person. It was intended that that would happen, and it did happen, as a result of a falsehood such as saying, 'I'm not married' when I am married. Is that what the government is intending here, because it does seem as if that is quite possible by the way the section is written? It is entirely possible.

Mr HERBERT (Minister for Training and Skills) — The intention here was to replicate what applies in the current act and add sexual touching over and above sexual penetration. Clearly the issue is about proof and reasonable doubt in a court, but there is no change per se in the act around the intentions of that particular part.

Ms PENNICUIK (Southern Metropolitan) — I suppose I go to section 45(1)(c) where the expression is 'a sexual act' rather than a sexual offence, so I think perhaps the committee might be more relaxed with the idea of a sexual offence — because this bill is about sexual offences — rather than a sexual act, which may not be an offence. So I wonder if the minister could clarify that that is what is meant here — the broadest definition of a sexual act rather than a sexual offence.

Mr HERBERT (Minister for Training and Skills) — I think new section 35C contains the meaning of taking part in a sexual act. I think that is the case.

Ms PENNICUIK (Southern Metropolitan) — Could you repeat what you just said?

Mr HERBERT (Minister for Training and Skills) — Yes, so for helpful clarification, there is a definition of 'sexual act' under section 35C.

Ms PENNICUIK (Southern Metropolitan) — I am just looking at the provision that the minister has directed me to, which in fact says 'sexual activity' rather than a 'sexual act', so that is not quite the same thing. So I suppose the concern really is whether two otherwise consenting adults may get caught up in this provision due to a person just saying they were not married when they were or, under paragraph(d), omitting to disclose that fact.

Mr HERBERT (Minister for Training and Skills) — The primary purpose of this of course is to stop fraudulent activity to obtain sexual activity acts. In the case Ms Pennicuik has outlined, the proof would have to be beyond reasonable doubt in a court that the misinformation about being married or not being married was the primary factor which led to the sexual act. It is a fairly high bar, I would think.

Ms PENNICUIK (Southern Metropolitan) — I think the minister has pretty well established that in the situation I outlined that could be the case. This is not limited to, for example, minors and it is not limited to sexual offences. It is just limited to sexual activity in the widest definition that you referred me to in section 35D, and that could be between two people over the age of 40, put it that way, and so one wonders whether that is going to be an appropriate outcome. Rather than just asking more questions about it, I could just say that I think the government probably needs to, given the minister has foreshadowed his answer to other queries raised by the Scrutiny of Acts and Regulations Committee, turn its attention to this particular provision and see whether in fact it needs to be tightened up to actually target what it is meant to be targeting. Not wanting to speak for Ms Patten, but I think Ms Patten and I are concerned that it is probably not as tight as it could be.

Mr HERBERT (Minister for Training and Skills) — I will take that as a comment and just perhaps finish off with the fact that there are many circumstances here. A person could lie about their age. They might be young looking; they could be 60 but they look 40, and they might say they are 40 years old to get into a 39 and under 40s speed-dating club. The attraction would have to be not that they are an attractive person and how they look or that they had a great personality, but it would have to be that basic point, proven beyond doubt, that that is what the perception is. I take your point, that it is one of the things. We will continually be changing these laws as society's expectations, mores and norms change.

Ms PENNICUIK (Southern Metropolitan) — Clause 16 inserts new section 49A through to section 49ZC. In fact it goes further than that. The next section also has a lot of letters attached to it — it includes new section 50A through to new section 50K. If I could first draw the minister's attention to new section 49A through to new section 49ZC. My overarching question is: given the statement by the Attorney-General in the second-reading speech with regard to simplification, clarification and modernisation — and I do not really take issue with modernisation, but I do with simplification and clarification — I have spent a bit of time going through this particular section and I do not find it simple to navigate. So I ask the question: why has the government introduced these new sections outlining new offences but then the defences to these offences are in sections further on, which refer back to the earlier clauses? So new section 49V is a defence for an offence against new section 49B(1). I wonder why. I would like an answer on this because if the aim is to simplify it, I do not think it does.

Why would the offences not be listed straight out — 'Here is the offence'? For example, new section 49A, 'Sexual penetration of a child under the age of 12': why is that offence and subsequent offences not just listed with their exceptions underneath, as they are in the Crimes Act 1958? Instead you have to go further into the bill to find that new sections 49W and 49V are defences or exceptions that refer you back to new section 49B(1). Why not just put each offence with its defences and exceptions attached to the same section? That is my overarching question.

Mr HERBERT (Minister for Training and Skills) — I will seek some advice on that. It may be the way the parliamentary drafting process has occurred as opposed to us wanting to do it; that is often the case. I would never profess to be an expert on parliamentary drafting, but I shall seek advice.

I can give you an answer. I do not know if it will satisfy you, but I can give you an answer. The instructions were developed in consultation with parliamentary drafting. I am advised that any greater renumbering would lead to a full renumbering of the Crimes Act, which would cause disturbance for the courts and lawyers. I will get to the real bit in a tick.

The bill clearly sets out offences in order of conduct — sexual penetration, sexual touching, sexual activity, preparatory conduct, other, exceptions, defences and what is not a defence. That was the way it was drafted in consultation with parliamentary drafting.

Can I just say that the exceptions and the defences have been simplified so that they apply to many offences, which I think is your point as to why they are not there. I have been advised that the bill does not replicate the exceptions and defences for each offence, as this would take more pages and be more complex. Thank you, Ms Pennicuik. That is the best I can do. Can I ask Ms Mikakos to relieve me for a little bit?

Ms PENNICUIK (Southern Metropolitan) — Minister, I am not sure if you were listening to what the minister, who has just left briefly, was saying or whether you heard my question, so I will not go too much over it. But I was querying why there was so much cross-referencing between new section 49A through to new section 49ZC in this bill. The minister said, 'Okay, the way it has been drafted is the offences and then the exceptions and defences following on, and not repeating them in the clauses'. The reason he just gave was 'So we didn't take up too many pages in the bill'. I suppose that is just by way of a comment.

Going through this bill and looking at the new provisions and how they apply is quite confusing. I am looking at new section 49U, and it is referring me back to new section 49B(1). You have to try to keep them in your head. I am not sure whether this is actually simplifying the provisions. It would be simpler, I think — whether or not it takes up more pages — to have the exceptions and defences to each particular offence attached to that offence so that it is very clear — 'Here is the offence described. Here is the penalty. Here is the exception or defence that applies to that defence'. I suppose that is more of a comment than a question, so I make that comment.

I then want to go to two particular offences and exceptions. Minister, on pages 25, 26 and 27 are the new sections 49B, 49C and 49D. I just want to ask questions particularly about new sections 49B and 49D. New section 49B is the offence of 'Sexual penetration of a child under the age of 16'. Minister, you will have to follow me here. If you go then to page 60, new section 49V provides a defence to that offence. It says:

It is a defence to a charge for an offence against section 49B(1) —

which is the sexual penetration of a child under 16 —

if, at the time of the conduct constituting the offence—

(a)    A was not more than 2 years older than B; and

(b)   B was 12 years of age or more; and

(c)    B consented to the sexual penetration.

Minister, that is to allow for young people who are close in age. So it is basically saying if two people are both young and they are close in age, it can be a defence to the offence of sexual penetration of a child under 16.

Then if you go to the offence on page 27, new section 49D, which is 'Sexual assault of a child under the age of 16', that refers, as you can see, to touching another person, and causing or allowing B or A to touch another person — it is mainly around touching offences. There is no defence to that similar to the defence for new section 49B. So in terms of young people under the age of 16 and the offence of assault, which is touching, there is not that similar defence of similar age, which is a defence for sexual penetration.

Minister, I just ask the question, and I will preface the question with it is not always but it would probably be seen by the community that sexual penetration of a child under 16 years as in many cases a more heinous offence than touching between two young people. As I said, not always — that is, the touching offence or a sexual assault could be more serious, but not always. So I just wonder why, in terms of people under 16 within 2 years of age of each other, there is not a defence for them, being within 2 years of age of each other, for a touching offence, yet there is for a penetration offence, which usually would be seen to be the more serious offence.

Ms MIKAKOS (Minister for Families and Children) — Ms Pennicuik, thank you for your question. Can I just say at the outset, in terms of your earlier comment, that in a previous life I used to have to deal with the Income Tax Assessment Act 1997, so this one looks like a breeze to me in comparison. But in terms of the question that you have posed, section 49U, I am advised, provides for an exception, not a defence, for similarity of age in terms of the offences established under section 49D.

Ms PENNICUIK (Southern Metropolitan) — Minister, I realised after you had gone to the advisers box that in fact that does exist, and it is part of the confusion of the whole thing. What does not exist in section 49U that does exist in section 49V is the issue of consent. So the age issue does apply to both of those sections 49B and 49D, but the issue of consent — and I will be prosecuting this issue a bit later too — does apply. So in terms of penetration, it can be a defence if B consented to it, but that particular defence of consent does not apply for what in most cases would be the less serious offence of touching. I wonder why that is. This also will lead to another question on that particular section 49D with regard to community standards.

Mr HERBERT (Minister for Training and Skills) — In answer to Ms Pennicuik's question, I advise that for the offence of sexual penetration, which is the more serious offence, consent is an element of the defence of similarity in age. For the less serious offence of sexual assault there is no consideration of consent because it is an assault. If the two children involved are similar in age, section 49D does not apply. This means no offence under section 49D has been committed. I hope that helps.

Ms PENNICUIK (Southern Metropolitan) — Yes. So if they are within two years of age of each other, there is no offence under 49D is what you are saying?

Mr HERBERT (Minister for Training and Skills) — Yes, that is correct.

Ms PENNICUIK (Southern Metropolitan) — I will think about that one. The other issue raised by the new section 49D is where it states in (c):

(c)    the touching is —

(i)    sexual; and

(ii)   contrary to community standards of acceptable conduct.

That is an issue I did raise with the minister and during the second-reading speech debate, as you may well remember, of that being a very broad term covering a wide range of views in the community. What one person might find as contrary to their standards, another may not. I am not being frivolous about that. I am just saying there is a range of views and it seems a very vague standard. The minister in his response to my letter to him said:

QUOTE NOT SUPPLIED IN TIME FOR VERIFICATION.

As for the meaning of community standards, the offences in new sections 49D and 49I require the touching or activity, as the case requires, to be sexual and contrary to community standards of acceptable conduct. This reflects the current legal meaning of the term 'indecent'. Replacing the notion of indecency with simple sexual touching or activity would inappropriately broaden the scope of existing offences.

The term 'indecent' I understand is also subject to the same variety of views in the community and whether or not we have just replaced one vague term with another. That particular term is used for this particular offence and the other offence which is 49I, which is 'causing a child under the age of 16 to be present during sexual activity'. My question is: how is that to be interpreted by the courts in a clear way when it is not a clear expression?

Mr HERBERT (Minister for Training and Skills) — I shall seek some advice on the first point. On the second point 'causing a child under the age of 16 to be present during sexual activity', I would have thought that was pretty clear.

Ms PENNICUIK (Southern Metropolitan) — I am just saying that that particular term 'community standards' applies to those two clauses.

Mr HERBERT (Minister for Training and Skills) — I am being a bit lazy here. I had this in my question and answer, but I will do as well as I can. The offences in the new sections 49D and 49I replace the outdated language of indecency with a simpler, clearer concept of touching or activity, as the case requires — and I will get to your main point in a minute — that is sexual and contrary to community standards of acceptable conduct. This reflects the current legal meaning of the term 'indecent'. Replacing the notion of indecency with simply sexual touching or activity would inappropriately broaden the scope of existing offences. Therefore the bill requires that the touching or activity also be contrary to community standards of acceptable conduct. This means that in the circumstances the touching or activity does not conform to generally accepted standards of sexual behaviour.

The new offences expressly identify two factors as being relevant to this assessment — and now we are getting to it: the purpose of the touching or activity and whether the accused seeks to get sexual arousal or sexual gratification from it. In many cases these factors will overlap, but it is necessary to list them separately so as to exclude touching or activity which is for a legitimate purpose or is not accompanied by a desire for sexual arousal or sexual gratification — patting someone on the back or whatever. This ensures that the new offences do not inappropriately criminalise non-exploitative touching or activity — parents bathing children, for example.

On the issue of whether it is necessary or not or who made the determination, in this regard the government put this proposition out there to a whole range of stakeholders — the courts, the various groups — and what we have come back with in this bill is what is considered by those stakeholders as better wording than the term 'indecency'. Obviously there will be different viewpoints on this, but that is the process that happened.

Ms PENNICUIK (Southern Metropolitan) — Thank you, Minister. I appreciate the answer and the fact that you have followed through on my query on this issue. I was actually going to ask what the views in particular of the judiciary and the people on the advisory committee were, because I still maintain that we have exchanged one vague term for another vague term — or imprecise term, put it that way — and also a subjective term which will need interpretation by the court. However, I understand the aim the government is talking about: you do not want to catch people in this who are just doing normal things and not intending to assault or inadvertently assaulting anybody. I suppose I just put that as a comment without wanting to prosecute the argument any more on that issue. I just say that I suppose the government and the courts will be looking at how those particular provisions actually do get interpreted by the courts and whether they are simplifying the offences and provisions.

Mr HERBERT (Minister for Training and Skills) — I take your point. Clearly if you do not get it right, you change it. That is the nature of legislation, particularly in these areas. There are areas of black and white and then grey and then, as I said, changing community standards and interpretations of the courts. Often incidents arise where these are tested, and that leads to amendments to legislation. Undoubtedly that will be the case in many aspects of this bill, as in so many others.

Ms PENNICUIK (Southern Metropolitan) — If I could move on to a different part of clause 16, new sections 50A to 50K, the new provisions for incest that are replacing the existing provisions in the Crimes Act. As I mentioned in the second-reading debate, it has been raised with us, and I think it is a valid question, why the new provisions are concentrating on the familial relationship between people and whether it may have been a simplification of this area to not necessarily focus on that so much but more on the offence that has been committed and have the relationship between the people — particularly where that involves a power relationship or an exploitative relationship — be an aggravating circumstance to the actual offence. That is the question.

Mr HERBERT (Minister for Training and Skills) — I have got an answer here. Just before I go and get it, one of the major intents here is that children — in circumstances where there has been a power relationship and they were under age and the parents, as defined in the act, have had incestuous relationships and when they turn 18 they continue that relationship — are not guilty of the offence of incest because it started when they were a child. I think that is a reasonable thing that most people would accept. I will just get a little bit of information, though, on your point about whether it should have been laid out here or whether it should have been in relation to a power position.

Victoria's incest offences are commonly charged in the case of sexual offending against children. Recently the Victorian Court of Appeal in DPP v. Dalgliesh (a pseudonym) [2016] VSCA 148 stated:

Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular.

I am sure everyone in this chamber is, too. In this case the Court of Appeal has called for higher sentences in the case of incest. It is clear that the views of some stakeholders on how we achieve that are not uniform. Ms Pennicuik's view is noted.

Ms Pennicuik — Questions.

Mr HERBERT — Okay, her questions are noted — as are the viewpoints of other stakeholders. The government's position is that it is necessary to retain the incest offences as a separate and very serious category of sexual offending. The Sentencing Advisory Council's 2014 report on incest sentencing indicates the majority of incest offenders are parents, step-parents and lineal ancestors. We believe that maintaining separate offences for these categories recognises this as a specific form of sexual abuse by a particular family member. That is the viewpoint of the government.

Ms PENNICUIK (Southern Metropolitan) — I concur of course with the government that it is a serious set of offences where there is a close familial relationship and an exploitative and even worse situation for the people who are in those situations. My question following then is: could a person be charged with offences under new section 49 as well as under new section 50?

Mr HERBERT (Minister for Training and Skills) — The answer is yes, Ms Pennicuik.

Ms PENNICUIK (Southern Metropolitan) — I thank the minister. That is the shortest answer of the evening. I think the question was a valid question. Again I would say the courts will keep an eye on it. I was aware of and did in fact mention the Court of Appeal's view on this. I suppose what I am questioning really is not the seriousness of it and the fact that higher sentences are required but how we best achieve that; that is my question. I have no further questions on clause 16

Mr HERBERT (Minister for Training and Skills) — We will agree to disagree. I note that the Federation of Community Legal Centres — and I think Ms Pennicuik pointed this out — have a viewpoint that family members should be a separate category within the offence, but we have a different view. I thank Ms Pennicuik.

Ms PENNICUIK (Southern Metropolitan) — Clause 27 is the jury direction on consent. My question really is about the issue of jury directions not being mandatory, because the government and the previous government have not put jury directions in sexual offences trials as mandatory. I have raised that many times because it is certainly the view of many in the community who work in this area with these types of trials that occur that the whole idea of directions on consent, and in fact the following clause, directions on reasonable belief in consent, are not well understood in the community and that the law as currently written only requires these directions to be given at the discretion of the judicial officer or on request of the legal representatives. So I think it could lead to an issue where those directions are not given to the jury and the jury is made up of people who may not fully understand consent or reasonable belief, so that could lead to an unjust outcome. Why is the government leaving that possibility under the law?

Mr HERBERT (Minister for Training and Skills) — These are complex approaches to human interactions. Ms Pennicuik, in response to your question, the government maintains that it is its position that the approach in the Jury Directions Act, which was developed by the Jury Directions Advisory Group, be maintained in this bill. It is the government's view that judicial discretion should be maintained. Where, for example, there is no question that reasonable belief and consent exist — a female jogger raped by a stranger, for example — a direction on this issue would be confusing and at worst counterproductive. So we do think that the approach in the Jury Directions Act, developed through the Jury Directions Advisory Group, should be maintained and that judicial discretion be maintained for this aspect.

Ms PENNICUIK (Southern Metropolitan) — Thank you, Minister, for your answer. I say in response that where it is clear-cut that there is no consent or reasonable belief then, yes, that could be provided for in the act. But you only have to look at what has been happening with young men lately and at what is going on with them putting photos online et cetera that the idea of consent and reasonable belief is not well understood in the community. Where that is an issue for a particular offence being tried in the court it should not be up to the judicial officer or legal practitioners to assume that people on that jury actually understand these things. So that is what I am saying.

We know in the community that there is a problem with these particular concepts. Not having those jury directions given where those particular matters — reasonable belief or consent — are at issue in the trial could be a problem. I understand that probably most judicial officers would do it. But to make sure an unjust outcome does not occur where that is an issue I maintain that that should appear in the act to make sure that the people that are going to make the decision actually know the context in which they are making it.

The case law is littered with unjust outcomes due to juries not understanding completely and, dare I say, in the past even judicial officers not understanding that. I also say, and this is a comment of course, that the Greens are very much in favour of judicial discretion, and certainly we do not support mandatory sentencing and that type of thing, but sentencing is a different thing. Making sure that the court is aware of the full context of something, which we know is an issue in the public, is a different thing from judicial discretion. I will just make that comment and thank you for your answer, Minister.

Mr HERBERT (Minister for Training and Skills) — I appreciate that there are different views about this, and we have one difference, perhaps not on the outcomes we have but on the way we go about them. I would like to comment, though, on one aspect, Ms Pennicuik, on what we are seeing on websites where young lads — often very affluent young lads from very privileged backgrounds — are taking photos inappropriately and putting them on websites et cetera. I think we find that is obviously abhorrent and very distressing and illegal in many cases. I do say, though, that there needs to be some obligation on the schools in this regard. It may not be issue of understanding the law, as opposed to understanding what is acceptable and what is unacceptable behaviour. I am sure you would agree with me on that in that case.

Clause agreed to; clauses 28 to 50 agreed to.

Reported to house without amendment.

Report adopted.