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.