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Exposure Draft: Crimes and Other Legislation Amendment (Strengthening the Criminal Justice Response to Sexual Violence and Other Measures) Bill 2022

The submission to the Attorney-General’s Department in response to the exposure draft of Schedule 1 of the Crimes and Other Legislation Amendment (Strengthening the Criminal Justice Response to Sexual Violence and Other Measures) Bill 2022 (Draft Bill) was prepared by the Law Council of Australia. 

In principle, the Law Council supports the Draft Bill’s aims of strengthening protections and criminal justice outcomes for vulnerable witnesses and victimsurvivors of sexual violence, particularly women and children. The Law Council recognises that victim-survivors can face barriers within the criminal justice system and are at a particular disadvantage compared with other witnesses when called to give evidence about their experiences.

Reasonable and proportionate adjustments need to be made to court processes to enable victim-survivors to give their best evidence, and the Law Council supports measures designed to strengthen available protections and provide courts with the necessary tools and flexibility, provided that such measures are carefully balanced against the fundamental right of the accused to a fair trial.

The Law Council generally supports the proposed amendments outlined in the Draft Bill, however submits that the witness intermediary and pre-recording of evidence provisions in the Draft Bill lack necessary detail to effectively guide the courts, complainants, and the accused. This risks the possibility of delays and appeals as courts try to determine Parliament’s intention. The lack of procedural fairness safeguards, such as the requirement for complete disclosure before pre-recording commences, also risks unfair trials.

The Law Council therefore makes some targeted suggestions for amendment of the Draft Bill, and would welcome the opportunity to continue to engage with the Department as the reforms develop further.

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