View the recording of this speech here.
Record of Proceedings, 5 March 2024
Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill; Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill
I rise to make some comments in the cognate debate of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill and the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill before us today. I want to reflect on some of the comments made by the non-government committee members, the member for Currumbin and I, in the statement of reservation. I was going to start with the double jeopardy bill but, having reflected on the comments of the member for Bundaberg and the way in which he was attempting to frame this debate in terms of funding for education, which was a good recommendation that came out of the inquiry into the bill, I want to note that when governments change laws as significant as this it is very important that they get it right. One of the biggest concerns that LNP members and significant serious learned stakeholders have is that the government has rushed this and does not have the legal provisions right so they will not do what they are intended to do.
We support the bill. We support its intent to criminalise coercive control and to put in place penalties for it. That reflects all of the inquiries that we have supported, starting with—and I recognise the interjections of the member for Nanango during the speech of the member for Bundaberg—the Not now, not ever inquiry, which was started by the LNP government in 2014. We support the criminalisation of coercive control. However, it is a big concern that not enough time has been taken to properly frame the offence. I take the House to our statement of reservation in which we reference the Women’s Safety and Justice Taskforce’s clear recommendation that the offence be subject to at least three months consultation before being introduced into parliament. I think the member for Currumbin reflected earlier that there were 14 days of consultation before it was wrapped up in a bill and introduced into parliament. If the government supports the Women’s Safety and Justice Taskforce recommendations, why can they not actually take on board its recommendations about getting the offence right?
Last year we held an inquiry into victims of crime legislation in Queensland. I was a part of that inquiry. Throughout the inquiry, other inquiries and my time in this place, one of the things I have learned is that it is not just the offence that is committed against someone that can be traumatic; the judicial process can be traumatic as well. We need to look at the warnings of the Law Society, the Bar Association and other stakeholders about this law. I fear that, if this law is flawed, it will result in huge trauma for victims because it is not framed correctly. The government has ignored all of the warnings. They did not put it out for proper consultation and they are ignoring the warnings of stakeholders throughout the process.
The Queensland Law Society’s warning is completely clear and plain. It said—
In its present form, the offence is a disservice to both complainants and accused persons, and the wider community. It will be too difficult for juries to understand. It will produce unjust outcomes.
How much clearer a warning can there be for the government? I will not read all of the quote because it is quite long, but the Queensland Law Society also stated—
This will result in protracted trials. There will be an amplified interrogation of the facts and the matters that underpin a charge of coercive control.
When they refer to ‘an amplified interrogation of the facts’, I think they mean longer cross-examinations of victims about the facts because the offence is not framed correctly. That is a disservice to victims and it a disservice to everyone who supports the intent of criminalising coercive control. For whatever reason, and I do not know what the reason is, the government has decided to ignore the recommendation of the Women’s Safety and Justice Taskforce about properly consulting on the bill.
When the member for Waterford spoke earlier, I note that she made a reference to delaying some provisions of the bill that relate to what constitutes harm or not having consent in relation to the transmission of diseases. That is an example of listening to stakeholder feedback. Other provisions in the bill could also be delayed and put out for more review and wider consultation, as was initially recommended.
The Queensland Human Rights Commission did not make a submission on the flaws in the drafting of the bill. However, they were present at the public hearing, heard the cogent evidence from the Law Society and, essentially, adopted that view.
The member for Bundaberg talked about funding for education and training and threw accusations around the chamber about what has been done in the past and what will be done in the future. I simply say: get the first things right first. That involves getting the law right in the first place. The government is failing on that front as evidenced by all of the submissions to that effect. In the future we will be back here amending this law because it has not been framed correctly for anyone.
The other bill before us is the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill. The report was given without a statement of reservation. We recommend that the bill be passed. There are two elements to the bill. The subsequent appeal framework where people can appeal against a conviction when there is new or fresh evidence was broadly supported by all stakeholders as a way for people who have been convicted to reopen their case and perhaps be acquitted if new or fresh evidence comes about. There is also an expansion of the exceptions to double jeopardy where the state can potentially bring a prosecution against someone who has been acquitted on the basis of new or fresh evidence, which was subject to a lot more conjecture in the committee. The Queensland Law Society, as a matter of high principle, I think, opposes the provision because they say that the principle of double jeopardy is a key factor in balancing the power of the state against the power of a defendant, with the state having all the resources and quite often defendants not having many resources at all.
Something of interest arose during the committee process. The member for Currumbin referred to the fact that this bill relates to the DNA lab maladministration and that 103,000 DNA samples, or something like that, might have to be retested and a whole lot of cases may need to be reopened as a result of the maladministration.
Mrs Gerber interjected.
Some 37,000 cases. I thought it was quite interesting that one of the government members on the committee objected to the member for Currumbin referring to that maladministration as a ‘debacle’. What else can you describe it as? It has been a debacle over many years. I cannot remember who it was now, but one member took offence to it being called a debacle. That is absurd because it was a catastrophic failure and we have seen that reflected in the media. This bill is basically a response to that. It has been brought forward very quickly after a couple of commissions of inquiry so that if people need to be re-tried based on new evidence to come out of the retesting of DNA samples they can be.
We are broadly supportive of that change to the double jeopardy laws. It is not creating a whole new mechanism, because we have one in Queensland already—it has been in place since 2007 for murder. There is a process for reopening a murder case if fresh or new evidence comes about. There was some conjecture about the test to be applied.
The QLS recommended that a miscarriage of justice test be applied in the case of both fresh and new evidence, whereas the bill takes a slightly different approach and requires the defendant in the case of new evidence to prove on the balance of probabilities that that evidence might prove their innocence. I know that that seems to be the situation in Western Australia, where this provision is already in place, but we need to reflect upon the considerations put forward by the Bar Association and the Law Society. In the end, they are the experts when it comes to dealing with criminal law—not people in the government who are bringing forward these bills in a rush to deal with the DNA debacle and other debacles that they have presided over.
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