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Legislative Assembly for the ACT: 2003 Week 3 Hansard (23 October) . . Page.. 4055 ..

MS DUNDAS

This amending legislation puts down laws on how counselling communications are able to be produced in court and sets quite stringent guidelines for the manner in which they are dealt with. The amendment tries to strike a balance between the right to confidentiality for the victim and the right to a fair trial for the accused. Ultimately, I believe that the amendment does reach the desired balance and so I will be supporting the bill.

Another important element of this bill is the directions a judge can give to a jury and how they are discussed. While some in the legal fraternity believe such directions can confuse the jury or increase the possibility of the trial judge making a mistake in law, I would like to highlight three sections of the bill in relation to judicial directions that I believe protect women and children and enhance their rights.

Section 70 prohibits a judge from warning or suggesting that children are an unreliable class of witness. This is in line with the 1997 Australian Law Reform Commission report Seen and heard: priority for children in the legal process, which reported research that found children's cognitive and recall skills have been undervalued while at the same time adult witnesses' memories can be equally fragile and susceptible to the distorting influences of suggestion and misinformation. I believe quite strongly that it is about time the law recognised this and stopped devaluing young people.

Section 71 provides for a jury warning to demonstrate that a delay in making a complaint does not necessarily indicate that the alleged offence is false. There may be good reasons why victims of sexual assault may hesitate in making an immediate complaint. This is important because there are still many in the community who do not understand the psychological and emotional barriers people have to reporting incidents of sexual assault.

Section 73 deals with the mistaken belief of consent. In relevant cases, a judge may direct a jury to consider whether mistaken belief of consent was reasonable or not. Directions like this in the Australian legal fraternity are often believed to lead to confused juries. However, this contrasts with the prevailing view in the Canadian legal system, which reinforces that women have the inherent right to exercise full control over their bodies and that their consent to sexual activity is their exclusive domain. For the courts to rule otherwise is to perpetrate women's historic repression and disadvantage. So I am pleased with the steps that sections 70, 71 and 73 are taking to deal with the issues in terms of both children's rights and women's rights in quite complex cases.

I would also like to highlight the provisions of section 43 that give the automatic right to complainants to give evidence via closed-circuit television. This is actually the status quo, but I draw attention to it in the context of a recent report by the Australian Institute of Criminology The experiences of child complainants of sexual abuse in the criminal justice system. This report surveyed the experiences of child complainants of sexual abuse in Western Australia, Queensland and New South Wales.

The key finding was that only 44 per cent of children in Queensland and 33 per cent of children in New South Wales would ever report sexual abuse again, compared to 64 per cent in Western Australia. The report suggested that, as a result, Western Australia had a more child-friendly justice system in terms of reporting of child sexual abuse, largely stemming from that being the only jurisdiction surveyed that had an automatic right for

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