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Amy Olver

Published: 27 August 2020
Author: Amy Olver

A mistake by Parliament sees survivors gagged for 6 months and counting

Changes to the Judicial Proceedings Reports Act 1958 (‘the legislation’), which took effect in February but has only recently attracted widespread attention, have left sexual abuse survivors gagged from speaking publicly about their experiences of abuse – even after conviction of the offender and even where they want to speak out.

The controversial legislation now requires survivors to seek permission from the court before speaking publicly about the abuse they suffered and identifying themselves. Failure to seek such permission can result in fines and even up to four month’s jail time for survivors of abuse. In order to seek such permission, the survivor would have to apply to the court at their own cost. The idea of having to apply to a court for permission would also no doubt be disempowering and a disincentive for many abuse survivors.

In what appears to be the result of inept drafting, the legislation most probably should require permission of the court OR of the survivor of abuse, but instead, s4(1CA) requires both permission of the court and the survivor. The legislation also applies retrospectively, meaning that those survivors who have told their stories over many years whilst advocating for justice are now silenced from continuing to do so.

Perversely, the effect of the current legislation is that while survivors are gagged from speaking without Court permission where the offender has been convicted, they are free to do so when there have been no charges laid against an alleged offender, or where the alleged offender has been found not guilty and all proceedings have concluded

In a series of tweets, Jill Hennessy MP, a long-time supporter of survivors, has advised that the amendments were originally intended to reduce barriers to justice and improve clarity for victims who want to speak their truth. She has requested the Department of Justice and Community Safety conduct an urgent review of the amendments to determine any further changes required to ensure the intention of the legislation is adhered to.

It remains unclear how this clumsily drafted legislation was allowed to pass through parliament and indeed remain in force now and raises questions about the process of review for draft legislation. It appears the intent of the legislation was to protect survivors from being identified without their consent. However, the legislation as it stands only serves to disempower survivors who wish to tell their stories and to protect convicted abuser’s reputations.

It appears the intent of the legislation was to protect survivors from being identified without their consent. However, the legislation as it stands only serves to disempower survivors who wish to tell their stories and to protect convicted abuser’s reputations.

For many survivors this legislation will be retraumatising, and reminiscent of the environment that existed in the years preceding the Royal Commission into Institutional Responses to Child Sexual Abuse. All too often, survivors who reported their abuse were disbelieved and indeed suffered further abuse as a result of their complaints. At RCT, more often than not our client’s report their motivation in telling their story is based foremost in the need to be heard and to prevent further abuse from occurring to others. This legislation must be amended. And it must happen quickly.

In the interim the government ought to give an assurance that no survivor will be prosecuted for speaking in their own name about their own case after conviction of their offender.

For more information about making a claim for sexual abuse, call us on 1300 366 441 or email us at enquiries@rctlaw.com.au to arrrange a free, no-obligation first consultation.

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