Guiding principles and objects clauses

25.184 The Time for Action report drew attention to the important role that guiding principles can play in the interpretation of the law relating to sexual offences and in the application of rules of evidence in sexual offence proceedings.[327] Victoria is currently the only Australian jurisdiction which provides an objects statement and guiding principles in relation to sexual offences and related procedural and evidentiary matters.

25.185 The Crimes Act 1958 (Vic) provides that the objectives of its sexual offences provisions are:

(a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity;

(b) to protect children and persons with a cognitive impairment from sexual exploitation.[328]

25.186 In addition, guiding principles were included within the legislation, which set out the facts that the court should have regard to when interpreting the various sexual offences in that Act. These are that:

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) sexual offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.[329]

25.187 There are identical provisions in the Evidence (Miscellaneous Provisions) Act 1958 (Vic) to assist the court when interpreting the provisions relating to confidential communications,[330] and in the Criminal Procedure Act 2009 (Vic) to assist the court when interpreting the provisions relating in whole or in part to sexual offences.[331]

25.188 These objects statements and guiding principles were introduced following the recommendations of the VLRC.[332] The VLRC considered that such provisions are an important educative tool, addressing the need for cultural change and the implementation gap discussed in Chapter 24. The VLRC articulated three main arguments for including guiding principles:

The criminal law has both a regulatory and an educative function. It should emphasise that people have a right to make decisions about their sexual activity and to choose not to engage in sexual activity. The interpretation clause will ensure that the provisions of sexual offences laws are interpreted consistently with the goals of the legislation.

A statement of principles of interpretation will give added weight to any directions or instructions that a judge gives to the jury. The judge and jury can refer to the principles to shed light on where any ambiguity may exist in the interpretation of particular sections.

Sexual assault continues to be under-reported, and the serious social harm of sexual assault has only recently begun to be given the recognition that it deserves. The unique nature and context of sexual assault should be clearly stated by the legislature, so that this underwrites the interpretation of the particular provisions in the legislation.[333]

25.189 Some states and territories have also incorporated objects clauses and/or guiding principles in their family violence protection order legislation.[334] While there is some question about the extent to which such provisions have been effective in practice,[335] such principles may provide an important symbolic statement about the nature of such violence, the community’s lack of tolerance for such violence, and the response of the law.[336]

Consultation Paper

25.190 In the Consultation Paper, the Commissions proposed that state and territory sexual offence legislation should include a statement that the objectives of the legislation are to:

  • uphold the fundamental rights of people to make decisions about their sexual behaviour; and

  • protect children and persons with a cognitive impairment from exploitation.[337]

25.191 The Commissions also proposed that state and territory sexual offences, criminal procedure or evidence legislation should provide for guiding principles, to which courts should have regard when interpreting sexual offence provisions, which should at a minimum refer to the following:

  • the high incidence of sexual violence within society;

  • under-reporting of sexual offences;

  • a significant number of sexual offences are committed against women, children and other vulnerable persons;

  • sexual offenders are commonly known to their victims; and

  • sexual offences often occur in circumstances where there are unlikely to be any physical signs of an offence having occurred.[338]

25.192 Finally, the Commissions asked whether a statement of guiding principles should make reference to other factors, such as recognising specific vulnerable groups of women or acknowledging that sexual violence constitutes a form of family violence.[339]

Submissions and consultations

25.193 Many stakeholders supported the inclusion of statements of objectives[340] and guiding principles.[341] For example, AIFS emphasised that the introduction of a statement of objectives and guiding principles would be of benefit in providing:

accurate, objective information on sexual assault, and may assist in counteracting any misperceptions or adherence to rape myths in jury members or members of the judiciary.[342]

25.194 The Magistrates’ Court and Children’s Court of Victoria also supported the inclusion of statements of objectives and guiding principles, which ‘provide useful guidance to the court in determining an approach to construing the meaning of relevant provisions’.[343]

25.195 Some stakeholders considered that ‘it is desirable to specifically acknowledge that sexual violence constitutes a form of family violence’[344] and emphasised the need to refer explicitly to Aboriginal and Torres Strait Islander women and children, those from CALD communities, and persons with a disability.[345]

25.196 For example, Hannah McGlade emphasised that the fact that Aboriginal and Torres Strait Islander women and children are more vulnerable to sexual assault should be expressly acknowledged in guiding principles.[346] Other stakeholders agreed but urged caution, emphasising the importance of not undermining the sexual autonomy of vulnerable groups of women,[347] and that ‘consultation is critical with respect to wording’.[348] NASASV submitted that:

groups should not just be tokenly listed as where the reader is otherwise ignorant of the factors this may feed existing prejudices, and potentially lead to further disempowerment/reinforcement of stereotypes and racism. It would be preferable if the dynamics that make these groups of women more vulnerable could be identified so that they can then be recognised for what they are in the evidence.[349]

25.197 Stakeholders suggested other matters be included in any statement of objectives and or guiding principles.[350] Suggestions included reference to:

  • the occurrence of sexual violence in the context of intimate relationships;[351]

  • the need to protect young people as well as children from sexual exploitation;[352]

  • the impacts of sexual assault, with particular emphasis on the fact that ‘there is no “typical” sexual assault, and no typical response to having been assaulted’;[353] and

  • sexual assault constituting a human rights violation, including reference to international human rights standards.[354]

25.198 Some stakeholders opposed the proposals. National Legal Aid argued that appropriate education and training should instead be provided to law enforcement authorities, prosecutors, lawyers, judicial officers, and other relevant service providers.[355] The Law Society of NSW proposed including reference to the right of the accused to a fair trial, but stated that guiding principles are not needed because

judges already take these matters into account on sentence in NSW. The danger with enunciating these principles in legislation is that they may be given added weight thus leading to a double-counting effect in relation to matters that are already regarded as aggravating factors on sentence.[356]

Commissions’ views

25.199 Statements of objectives and guiding principles can perform an important symbolic and educative role in the application and interpretation of the law, as well as in the general community. While much more is required to change culture, such statements provide an important opportunity for governments and legal players to articulate their understanding of sexual violence and provide a benchmark against which to assess the implementation of the law and procedure.

25.200 In the Commissions’ view, the statements of objectives and guiding principles articulated in the Victorian legislation are an instructive starting point for similar provisions in other jurisdictions.

25.201 While such objectives and principles are, however, intended to provide a contextual framework for the legislative response to sexual assault, rather than any exhaustive list of issues to which judicial officers and jurors should have regard, the recommendations below expand on the Victorian provisions to incorporate certain other matters.

25.202 In particular, the Commissions consider that it is desirable to acknowledge that sexual violence constitutes family violence, as it is precisely these cases that criminal justice systems deal with least effectively.[357] Further, it is important to recognise the particular vulnerability of certain groups of women and, as a result, specifically recognise Aboriginal and Torres Strait Islander women, those from CALD backgrounds and women with a cognitive impairment as victims of sexual violence.[358]

25.203 The Commissions recommend that legislative statements of objectives should underline the aims of upholding individual sexual autonomy and agency, while ensuring the protection of vulnerable persons from sexual exploitation. In addition, guiding principles should be incorporated in sexual offences, criminal procedure or evidence legislation, to recognise the nature and dynamics of sexual assault.

Recommendation 25–8 State and territory legislation dealing with sexual offences should state that the objectives of the sexual offence provisions are to:

(a) uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity; and

(b) protect children, young people and persons with a cognitive impairment from sexual exploitation.

Recommendation 25–9 State and territory legislation dealing with sexual offences, criminal procedure or evidence, should contain guiding principles, to which courts should have regard when interpreting provisions relating to sexual offences. At a minimum, these guiding principles should refer to the following:

(a) sexual violence constitutes a form of family violence;

(b) there is a high incidence of sexual violence within society;

(c) sexual offences are significantly under-reported;

(d) a significant number of sexual offences are committed against women, children and other vulnerable persons, including those from Indigenous and culturally and linguistically diverse backgrounds, and persons with a cognitive impairment;

(e) sexual offenders are commonly known to their victims; and

(f) sexual offences often occur in circumstances where there are unlikely to be any physical signs of an offence having occurred.

[327] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 111–112.

[328] Crimes Act 1958 (Vic) s 37A.

[329] Ibid s 37B.

[330] Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32AB.

[331] In Director of Public Prosecutions (Vic) v Theophanous [2009] VSC, the Supreme Court of Victoria considered the applicability of the guiding principles contained in, what was then, the Evidence Act 1958 (Vic) s 32AB. This case considered, in part, whether the magistrate had applied those guiding principles when allowing the publication of certain parts of the complainant’s evidence given in a committal proceeding. The court rejected the argument that s 32AB, and its intention to encourage the reporting of sexual assault, would necessarily mean that there could be no publication of evidence from a sexual assault proceeding.

[332] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Recs 105, 106, 107.

[333] Victorian Law Reform Commission, Sexual Offences: Interim Report (2003), [8.88]. See also [8.87].

[334] See Ch 7.

[335] In the family violence context see J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 55–56.

[336] In the family violence context see R Hunter, ‘Women’s Experience in Court: The Implementation of Feminist Law Reforms in Civil Proceedings Concerning Domestic Violence’, Thesis, Stanford University, 2006, 64; R Hunter and J Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alternative Law Journal 12, 12.

[337] Consultation Paper, Proposal 16–6.

[338] Ibid, Proposal 16–7.

[339] Ibid, Question 16–8.

[340] For example, Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; N Ross, Submission FV 129, 21 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[341] For example, Australian Institute of Family Studies, Submission FV 222, 2 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; N Ross, Submission FV 129, 21 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[342] Australian Institute of Family Studies, Submission FV 222, 2 July 2010.

[343] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[344] J Stubbs, Submission FV 186, 25 June 2010. Also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010 and Education Centre Against Violence, Submission FV 90, 3 June 2010.

[345] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; H McGlade, Submission FV 84, 2 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[346] H McGlade, Submission FV 84, 2 June 2010. Also Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[347] J Stubbs, Submission FV 186, 25 June 2010.

[348] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[349] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

[350] AIFS, for example, suggested including: emphasis on the fact that there is no ‘typical’ sexual assault, and no typical response to having been assaulted; that overt force and violence not being the norm in sexual offences; that the fact there is an ongoing sexual relationship does not negate the fact that non-consensual sex occurs; and that being sexually ‘experienced’ does not decrease the harm of sexual violence, nor does it mean a woman is more likely to have consented to an unwanted encounter: Australian Institute of Family Studies, Submission FV 222, 2 July 2010.

[351] Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[352] Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010.

[353] Australian Institute of Family Studies, Submission FV 222, 2 July 2010. Other submissions, such as Women’s Legal Services NSW, Submission FV 182, 25 June 2010 suggested adding reference to the trauma of sexual assault and resulting impacts on complainants’ capacity to report and participate in legal processes.

[354] For example, Women’s Legal Services Australia, Submission FV 225, 6 July 2010; H McGlade, Submission FV 84, 2 June 2010.

[355] National Legal Aid, Submission FV 232, 15 July 2010.

[356] Law Society of New South Wales, Submission FV 205, 30 June 2010. Also Legal Aid NSW, Submission FV 219, 1 July 2010.

[357] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 112.

[358] See also, Recs 5–1(b), 7–1.