Australian of the Year 2021, Grace Tame,[1] has used her award to shine a spotlight on problematic ‘gag-laws’ which prohibit survivors of abuse from speaking about their experiences. Although the intention of these laws was to protect survivors, many survivors claim these laws are undermining their right to speak-out against their abusers and warn others of predatory behaviours. Indeed, Grace Tame and other survivors have courageously raised their voices to fight for change in the #LetHerSpeak campaign.
Jurisdictions across Australia have listened, with some states and territories moving quickly to implemented positive change, while others have initiated legislative review processes. In this article, we’ll take a closer look at three jurisdictions: Tasmania, Queensland, and Victoria, and explore the story so far.
Grace Tame, Australian of the Year 2021
Photo from: Australian of the Year Awards, ‘Grace Tame: Advocate for survivors of sexual assault – Australian of the Year 2021’, Australian of the Year Awards (January 2021) <https://www.australianoftheyear.org.au/recipients/grace-tame/2297/>.
Gag-laws in Tasmania
Prior to Grace Tame’s fight for her story to be heard and the #LetHerSpeak campaign, Tasmania’s Evidence Act 2001 (Tas) (‘Evidence Act 2001’) did not provide much room to allow victims of sexual assault to share their story and experience if they wanted to. The earlier version of s194K of the Evidence Act 2001 required a court order to allow information pertaining to sexual assault offences to be published. It required the judge to consider whether it would be in the public’s interest to publish such information before making an order. This is because s194K(2) expressly states that a court ‘is not to make an order unless satisfied that it is in the public interest to do so’.[2] Therefore, the courts were limited in how they could interpret and decide on the previous version of s194K and things such as the consent of a victim to publish details of their story would not have been so easily considered.
The amended version of s194K, which took effect on 6 April 2020, still requires a court order to be issued and that a court should still consider whether the publication of information is in the public interest under the new s194K(5)(c). However, the difference lies in the language of the newly amended s194K that is now a part of the Evidence Act 2001. Instead of expressly stating that a court should not make an order unless it is satisfied that it is in the public interest, s194K(5)(c) states that a court ‘may make an order…if the court is satisfied that – it is in the public interest to do so’. For statutory interpretation, ‘is not to make’ versus ‘may make’ can make a difference. It gives more room for the court to exercise its discretion and lifts some of the restrictions in interpreting s194K.
Another key difference is the incorporation of new subsections that enable the court to consider the possibility that victims want to be identified and their stories heard. Sections 194K(3)(b), (4) and (5)(a)-(b) deal with when a victim of sexual abuse/assault has consented to the publication of information like their name and/or their story. This change in Tasmania’s gag-laws will hopefully make it easier for victims of sexual abuse/assault to share their story, should they wish to do so, and in a way that would still enable other victims of the same defendant to remain anonymous, should they wish to remain so.
Gag-laws in Queensland
Meanwhile, in Queensland sexual abuse survivors may consent to publication of their identity.[3] Survivors must be at least 18-years-of-age and have ‘capacity to give the authorisation’.[4] This recognition of autonomy of survivors has been present in Queensland’s legislation since 2008.[5] In Tasmania’s current laws regarding the publication of information pertaining to sexual abuse/assault, the age of consent is also 18 years old.[6] The wording of the Queensland legislation indicates, however, that survivors must still be cautious of the publication of any information likely to identify the defendant ‘before the defendant is committed for trial or sentence upon that charge’. This is a matter of procedural fairness for the accused.[7] A failure to comply with these publication restrictions may result, for an individual, in a large fine or up to 2 years imprisonment.[8]
Survivors must also be cautious of identifying other survivors who were abused by the same perpetrator. Each survivor who is identified, or likely to be identifiable from the information, must have given consent. Nevertheless, Queensland is said to have robust protocols to ensure that information regarding other survivors of the same perpetrator do not accidently get revealed which has been effective so far.[9]
Gag-laws in Victoria
The relevant legislation in Victoria is the Judicial Proceedings Reports Act 1958 (Vic).[10] Until recently, sexual abuse survivors had to obtain a court order or the consent of their abuser before being legally allowed to be identified in publications about their stories. Seeking such a court order has ‘proven problematic and expensive’ both in financial and emotional terms, according to Rachael Burgin, Anastasia Powell, and Asher Flynn.[11] If permission was not obtained and a survivor spoke-out regardless, the survivor could be liable for a large fine and/or to serve up to 4 months imprisonment.[12]
In November 2020, this Act was changed to allow victims to speak-out. Section 4(1A) of that Act prohibits publication of any information likely to identify a victim of an alleged sexual offence, regardless of whether the proceedings are continuing or have been determined. However, s 4(1BA) now clarifies that this prohibition does not apply to victims unless publication of the information is likely to identify another victim who does not consent to the publication.
Nina Funnell, co-founder of the #LetHerSpeak campaign, has welcomed the change.[13] Ms Funnell says the limitation on publication of information likely to identify another victim is ‘entirely appropriate’.[14] ‘The right of an individual sexual assault survivor to remain anonymous must take priority at all costs,’ says Ms Funnell, ‘even if it limits other survivors in terms of what they can say.’[15] For example, survivors of childhood abuse perpetrated by the same offender, such as siblings or school classmates, may feel differently about whether they wish to be identified. That is an individual’s choice and must be respected.
Despite these improvements to the legislation, the issue of gag-laws is far from settled. At the time the amendments were passed, the Victorian Parliament also engaged in intense debate about whether families of deceased victims should also have the right to speak-out without a court order.[16] Ultimately, Parliament resolved to conduct further consultations with families of deceased victims before committing to any changes.[17] Family members of some victims, including Eileen Culleton – whose sister was killed in 1988, and Edith McKeon – whose daughter was killed in 2012,[18] have expressed their outrage at being ‘gagged’.[19]
Meanwhile, the Victorian Director of Public Prosecutions and the Law Institute of Victoria have both indicated their support for the laws remaining unchanged. In their view, the court is in the best position to determine whether publication should be allowed because it must take account of the views of family members – which may be diametrically opposed – as well as whether it is in the public interest.[20]
Further consultations with stakeholders would clearly be beneficial to the resolution of these issues and allow space for everyone’s voices to be heard.
Where to from here?
Important progress has been made in reforming gag-laws in Australia. However, further work still needs to be done. Notably, Tasmania – the home state of Grace Tame – still requires survivors to obtain a court order before they can speak about their stories. Meanwhile in Victoria, the government has been quick to amend the legislation so that survivors can give their consent to publication. Queensland, on the other hand, has allowed survivors to consent to the publication of their identities since late 2008.[21] The disparity in rights of survivors in different jurisdictions to tell their stories is inequitable. Where a survivor lives, or where the abuse was committed, should not impact the legality of a survivor courageously speaking-out.
The discussion in Victoria also highlights that other issues must be considered. In particular, the law must be attentive to the wishes of the families of deceased victims in relation to publications about their loved-ones' stories. Further consultations will be needed to formulate the best way to achieve this. However, it seems like the work and discussions regarding these gag-laws that have taken place are heading in a good direction.
Importantly, the efforts of survivors and their supporters demonstrate how speaking-up can be the catalyst for meaningful legal change.
[1]Australian of the Year Awards, ‘Grace Tame: Advocate for survivors of sexual assault – Australian of the Year 2021’, Australian of the Year Awards (January 2021) <https://www.australianoftheyear.org.au/recipients/grace-tame/2297/>. 2 Evidence Act 2001 (Tas) s 194K(2). See <https://www.legislation.tas.gov.au/view/html/asmade/act-2001-076#GS194K@EN> for the earlier version of s 194K(2). [3] s 10, Criminal Law (Sexual Offences) Act 1978, <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1978-028?query=#pt.3>. [4] s 10, Criminal Law (Sexual Offences) Act 1978, <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1978-028?query=#pt.3>. [5] Compare the 2006 to 2008 versions of s 10 of the Criminal Law (Sexual Offences) Act 1978, < https://www.legislation.qld.gov.au/view/html/inforce/2008-12-01/act-1978-028>. [6] s 4(a), Evidence Act 2001 (Tas). [7]Queensland College of Teachers v TRT [2017] QCAT 5, < https://archive.sclqld.org.au/qjudgment/2017/QCAT17-005.pdf>. [8] s 10(1), Criminal Law (Sexual Offences) Act 1978, <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1978-028?query=#pt.3>. [9]Nina Funnell, ‘Removing the age to speak truth’, The Mercury (16 August 2019), <https://search-proquest-com.ezproxy.bond.edu.au/docview/2273429580?pq-origsite=primo>. [10] Judicial Proceedings Reports Act 1958 (Vic), <https://content.legislation.vic.gov.au/sites/default/files/2020-11/58-6280aa045%20authorised.pdf >. [11] Rachael Burgin, Anastasia Powell and Asher Flynn, ‘Explainer: Why is Victoria fast-tracking reforms to sexual violence ‘gag laws’ and to what effect?’, The Conversation (29 October 2020), <https://theconversation.com/explainer-why-is-victoria-fast-tracking-reforms-to-sexual-violence-gag-laws-and-to-what-effect-148905>. [12] s 4(2), Judicial Proceedings Reports Act 1958 (Vic), <https://content.legislation.vic.gov.au/sites/default/files/33628e6a-0343-36fe-a082-4e69641c138d_58-6280aa044%20authorised.pdf> . [13] Nina Funnell, ‘Removing the age to speak truth’, The Mercury (16 August 2019), <https://search-proquest-com.ezproxy.bond.edu.au/docview/2273429580?pq-origsite=primo>. [14] Nina Funnell, ‘Removing the age to speak truth’, The Mercury (16 August 2019), <https://search-proquest-com.ezproxy.bond.edu.au/docview/2273429580?pq-origsite=primo>. [15] Nina Funnell, ‘Removing the age to speak truth’, The Mercury (16 August 2019), <https://search-proquest-com.ezproxy.bond.edu.au/docview/2273429580?pq-origsite=primo>. [16] Richard Willingham, ’Controversial gag laws on identification of dead sexual assault survivors fail to win support in Victorian Parliament’, ABC News Australia (10 November 2020), <https://www.abc.net.au/news/2020-11-10/law-gagging-families-dead-sexual-assault-victims-fails/12868684>. [17] Richard Willingham, ’Controversial gag laws on identification of dead sexual assault survivors fail to win support in Victorian Parliament’, ABC News Australia (10 November 2020), <https://www.abc.net.au/news/2020-11-10/law-gagging-families-dead-sexual-assault-victims-fails/12868684>. [18] The victims cannot be named due to the laws referenced in this article. [19] Mary Gearin, ’Victorian law reforms would require rape-murder victim families to apply to court to publicly reveal details’, ABC News Australia (28 October 2020), <https://www.abc.net.au/news/2020-10-28/victoria-law-change-opposed-by-rape-murder-victim-families/12819732>. [20] Mary Gearin, ’Victorian law reforms would require rape-murder victim families to apply to court to publicly reveal details’, ABC News Australia (28 October 2020), <https://www.abc.net.au/news/2020-10-28/victoria-law-change-opposed-by-rape-murder-victim-families/12819732>. [21] Compare the 2006 to 2008 versions of s 10 of the Criminal Law (Sexual Offences) Act 1978, < https://www.legislation.qld.gov.au/view/html/inforce/2008-12-01/act-1978-028>.