When Mark Dreyfus unveiled his terms of reference for an inquiry into sexual assault law, he knew what he wanted. The Attorney-General specifically required the Australian Law Reform Commission to consider what happened at a meeting he convened on August 23 last year.
Apart from himself, those present included federal ministers Katy Gallagher and Amanda Rishworth as well as state and territory attorneys-general and 22 non-government representatives. They included Luke Murphy who at that time was president of the Law Council of Australia, the peak national body of the legal profession.
The report of their discussions is outlined in a document that features prominently in the terms of reference. It is known as the “Summary report of the ministerial-level national roundtable on justice responses to sexual violence”.
It deserves more scrutiny – particularly by those concerned about the damage that well-meaning interest groups and politicians can inflict on the rule of law.
If this report is an indication of what the Law Reform Commission is intended to produce, it could mark the beginning of a national erosion in the fairness of criminal justice.
This is happening is pursuit of what the government described in a press release this week as a plan aimed at “improving the experience of victims and survivors of sexual violence”. It looks more like a plan to tilt the scales of justice. And if the justice system is to be skewed for sexual assault cases, how long will it be before a similar approach is taken for other crimes?
It is important to make the point that there will always be room for improvement in the way sexual assault matters are handled. This is despite the fact that the courts, the legal profession and state legislatures have already made significant changes aimed at reducing the trauma associated with these cases.
But the report of that meeting in August shows that worthwhile reform is at risk of degenerating into something repugnant – a push to water down the rigour of criminal justice in order to secure more convictions at the cost of a fair trial. The Attorney-General’s terms of reference will require this inquiry, “where appropriate”, to “synthesise and build on” proposals from that August meeting.
It can only be hoped the commission will decide that the worst of the ideas from August are simply not appropriate. It is unfortunate that the report of that meeting does not say which participants supported particular ideas. That leaves the regrettable impression that those present – or a significant proportion of them – endorsed ideas that are best described as dangerous.
The Law Council should be particularly aggrieved by the way this meeting has been presented in that report. It is difficult to believe that Luke Murphy, when president of the legal profession’s peak national body, would have anything but disdain for some of these ideas.
The report baldly states that “participants discussed the need for the [Law Reform Commission’s] inquiry to consider overhauling long-standing legal principles where needed. “This included the defendant’s right to silence . . .” the report says. Participants are also recorded as calling for the inquiry to consider alternative approaches such as “women-only police stations and specialist courts”. Other options were the establishment of an alternative court system for sexual assault cases including “the use of a tribunal model comprising one member of the public, one judge and one person with specialist training in the area”. Also discussed in August was the creation of a civil organisation that would second-guess the police by undertaking its own investigations under a power to “reinterrogate investigations conducted by police”. Another proposal was to exclude good character references for defendants and introduce bad character references instead. It would, however, be a mistake to dismiss this entire inquiry.
While many of the ideas that it will now be considered are truly crazy, Dreyfus nevertheless deserves praise for tackling one of the most obvious weaknesses in the way sexual assault cases are handed.
This inquiry will examine the policies, practices, decision-making and oversight of prosecutors – who are crucial. Their decisions are of vital importance.
Just before Christmas, Judge Robert Newlinds of the NSW District Court criticised the prosecutions in that state for allowing a sexual assault case to proceed that, in the judge’s view, was bound to result in an acquittal. An innocent person had spent eight months in custody awaiting trial on a charge that should never have been laid.
After this inquiry digests the nonsense that took place at that meeting in August, it might care to look up what Newlinds had to say about the rigour – or lack thereof – that seems to influence some prosecutorial decisions. Well-meaning advocates are passionately concerned about what they say are low conviction rates for rape cases.
But instead of skewing the justice system, a better approach would be to demand greater rigour from prosecutors. Logically, if prosecutors bowl up large numbers of hopeless cases, the conviction rate will be low – so long as the courts continue to adhere to legal principle. If the only real change that emerges from this inquiry is a new system of oversight for prosecutors, it will be a worthwhile exercise.
The full extent of the last great prosecutorial failure in this country only came to light after Walter Sofronoff KC was called in to run an inquiry into what happened during the aborted prosecution of Bruce Lehrmann.
Had that matter not involved such well-publicised allegations, it is hard to imagine that the conduct of former ACT prosecutor Shane Drumgold would ever have been exposed.
