Proposed reform calls for change to bail presumption of serious sexual offences such as incest, third-degree sexual assault

A neutral presumption of bail for additional sexual offences, as well as getting rid of an “unintended consequence” of the law around family violence orders (FVOs), has been suggested as part of reforms designed to improve the justice experience of victim-survivors.

Attorney-General Shane Rattenbury introduced the Sexual, Family and Personal Violence Legislation Amendment Bill 2023 on Thursday (2 November), which he said was about making the court system easier to navigate, more accessible and more trauma-informed when dealing with victim-survivors of alleged family violence and sexual offences.

Under the proposed amendments, a neutral presumption of bail would be introduced for certain sex offences, such as third-degree sexual assault, incest, use of a child to produce child exploitation material, and grooming and depraving young people.

The ACT has three categories of bail: presumption against, neutral presumption and presumption for. When a crime has a neutral assumption of bail, it means a person can still get bail but must make a case to the court about why they shouldn’t be held on remand.

Mr Rattenbury explained every single crime didn’t have a neutral presumption of bail as the Human Rights Act meant people were presumed innocent until proven guilty.

“What the Bail Act seeks to do is balance the presumption of innocence with the safety of the community, that’s why we don’t just presume everybody will be held in custody until their actual hearing date,” he said.

“Bail is designed for a range of reasons, but it’s primarily about making sure someone turns up to their next court hearing, doesn’t interfere with witnesses and potentially doesn’t continue to commit further offences.”

Another proposed change will be abolishing the crime of aiding and abetting a breach of an FVO for protected persons.

Currently, under ACT law, if an applicant or protected person under an FVO enables the respondent (or alleged offender) to breach the FVO, then the applicant can be charged with a criminal offence.

Mr Rattenbury said this was an “unintended consequence” of the current law and one that needed to be rectified to recognise and take into account the complicated relationships between victims and offenders.

“People can often reconcile in relationships, there’s a complex power dynamic, there’s all sorts of issues there,” he said.

“What we can see is that [the aiding and abetting crime] can be used as a power tool by potential offenders to control their victims. We want to make sure victims are not being trapped through an unintended consequence of the law.

“This amendment highlights that responsibility for complying with a family violence order rests with the respondent, rather than the victim-survivor.”

Other proposed changes relate to streamlining the court process for victim-survivors and FVO applicants, which include allowing courts to make provisional amendments on FVOs in special and exceptional circumstances, allowing the court to list an FVO matter for an interim hearing where there’s a change of circumstances, and changing the scope of the protection afforded under an FVO.

The changes are part of continued legislative reform in the wake of the 2021 Sexual Assault Prevention and Response report.

Victims of Crime Commissioner Heidi Yates said shifting the presumption of bail to neutral for these serious sexual offences would strengthen the ability of the courts to uphold the rights of victim-survivors.

“It is vital that the bail system reflects community expectations … consistently removing the presumption for bail for serious sexual offending is a welcome step as we work to improve the ACT’s response to sexual violence by better supporting the safety of complainants,” she said.

She described the changes to family violence and personal protection order frameworks as another positive step to responding to operational concerns raised about the process while also increasing safety for victim-survivors.

“For example, the bill allows the court to not hold a preliminary conference if doing so would constitute an unacceptable risk to the safety of the applicant, staff or members of the public,” Ms Yates said.

“The amendments will also allow the court to hear and determine temporary amendments to interim and final family violence orders on an ex parte basis where special or exceptional circumstances apply.

“For example, this power may be used when a respondent’s violent behaviour escalates rapidly once they are served with an interim or final family violence order so that extra conditions are immediately needed on the order to protect the safety of the applicant and any children named on the order.”

Getting rid of the ‘aiding and abetting’ breaching of an FVO will bring the ACT in line with other jurisdictions, such as NSW.

If you or someone you know has been impacted by sexual, family or personal violence, support is available from a range of Canberra services, including the Domestic Violence Crisis Service on 6280 0900. If you are in danger, call Triple Zero (000).