HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-02 Daily Xml
Contents
Xml

Bills

Statutes Amendment (Stealthing and Consent) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2022.)

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:43): I rise as the lead speaker for the government on the bill introduced by the Hon. Connie Bonaros and indicate that the government will be supporting this bill, subject to one very minor amendment. The bill proposes various legislative reforms to improve the operation of laws around sexual offences and consent to sexual activity, including:

section 46 of the Criminal Law Consolidation Act 1935, to put beyond doubt that stealthing—where a person deliberately and without consent does not use, damages or removes a condom before or during sexual activity—is unlawful conduct;

section 124(8) of the Criminal Procedure Act 1921, to require the disclosure of experts' reports to the prosecution where the expert evidence relates to topics that are dealt with in section 34N of the Evidence Act 1929; and

section 34N(1) of the Evidence Act, to broaden the jury directions that must be given in cases involving a sexual offence where consent is an issue and to allow for the admission of expert evidence to address certain misconceptions about non-consensual sexual activity.

This bill is identical to the Statutes Amendment (Stealthing and Consent) Bill 2021 that was introduced into this parliament last year. Unfortunately, that bill did not pass before the end of sittings last year.

Stealthing is an insidious crime where a perpetrator deliberately and without consent either damages, removes or does not use a condom before or during sexual activity. Stealthing can have significant impacts for victims. It carries a risk of transmission of sexually transmitted infections, may result in unplanned pregnancy and may be used as a form of coercive control. It can cause psychological harm to the victim, including distress, trauma, guilt and shame. The existing laws around stealthing are unclear. The government agrees that the introduction of an express provision that addresses stealthing would put beyond doubt that such conduct is unlawful.

I recently had the good fortune to meet with Chanel Contos, who is the founder of the Teaching Us Consent campaign and has long been a staunch advocate for positive sex education in Australia, including raising awareness around stealthing. In that meeting, Chanel and her colleagues made clear to us that, as well as making the law expressly clear, a critical part of this sort of legislation is to educate people on what stealthing actually is. Only 3 per cent of over 2,000 respondents in an Australian youth study said their school taught them about stealthing.

In relation to the minor amendment that I foreshadowed, the government has lodged an amendment to allow for the bill to commence by proclamation rather than assent. This amendment is designed to provide greater flexibility to set a date for commencement and will ensure that there is adequate time to notify relevant parties, including the courts, of the amendments before they come into operation. In addition to the reforms proposed by this bill, the government has separately committed to reviewing legislation pertaining to consent to sexual activity.

I would like to thank Chanel Contos and all the advocates in this space who have raised national awareness about the act of stealthing and have been incredibly brave in sharing experiences for the better understanding and safety of others. I would particularly like to thank the Hon. Connie Bonaros for her longstanding support and advocacy in this area. I am very pleased to be supporting, on behalf of the Labor government, the honourable member's bill today.

The Hon. I. PNEVMATIKOS (17:47): I rise to support this bill and in doing so I thank the Hon. Connie Bonaros for bringing this bill to this house. Similar bills have been introduced by the Hon. Connie Bonaros and the former Attorney-General, the Hon. Vickie Chapman MP, in the previous session of parliament. It is important that we acknowledge the contribution that these members have made to make survivors of sexual violence and assault heard and put their calls into action.

The Labor Party, in opposition at that time, supported each of those bills, and I am glad today to once again stand in support. Since the original introduction of this bill, other states and territories have heeded the call to make stealthing a crime. Victoria, New South Wales, Tasmania and the ACT all have legislation on stealthing. Again, South Australia seems to be behind in legislative change.

Although specific legislation on stealthing is relatively new across Australia, the practice is not. Although many of us had not heard of the practice before it came to this chamber, studies show that the practice is disturbingly common. A 2018 study by Monash University and the Melbourne Sexual Health Centre surveyed 2,000 people and found one in three women and almost one in five men had experienced stealthing. Only 1 per cent of these had reported the act to police. This is telling of the nature of the practice and the importance of criminalising it.

It is not secret that sexual assaults are disproportionally unreported compared to other crimes. We know this is because of issues of shame, self-blame, fear of consequences, powerlessness, victim blaming—the list goes on. Legislation such as this sends a strong message that this sort of behaviour is not only unacceptable but illegal. The harsh penalties are a strong deterrent and measured for the offence of rape.

We cannot stop here though. As well as laws such as this we need social change. We need commitment from everyone to end sexual violence. We need education on all levels to make it known that there are consequences. Stealthing has not always been classed as clear as cases of rape or sexual assault. This amendment to the criminal law sends a clear signal to perpetrators by reinforcing the social condemnation of the act. It goes some way to offering remedy to those who have been subject to stealthing and giving survivors power to prosecute their crimes.

The Hon. R.A. SIMMS (17:50): I rise on behalf of the Greens to also speak in support of this bill. In doing so I do want to praise the Hon. Connie Bonaros for her leadership in raising this issue in the last parliament and for her persistence in advocating on this very important reform. I recognise also that this was a matter taken up by the previous Liberal government, and we in the Greens welcome that, and also the support of this Labor government to address this very important issue.

As has been stated by my honourable colleagues, this is a very important issue for the parliament to tackle. The role of the criminal law is to address community expectations and to reflect community standards. Indeed, I think the community will view stealthing practices as abhorrent. I also refer to the report that the Hon. Irene Pnevmatikos referenced, that is the survey conducted by Monash University where it was found that one in three women and almost one in five men who have had sex with men had experienced stealthing.

The impact of that is really very serious on survivors of this practice because survivors, as a result of the removal of condoms occurring during sex that they were not aware of, 'experienced a fear of sexually transmitted infections and pregnancy and also a less concrete but deeply-felt feeling of violation'. That was a quote from a study from the University of Yale referred to as 'Rape adjacent, imagining legal responses to non-consensual condom removal' that was published in the Columbia Journal of Gender and Law.

Since we last discussed this matter as a parliament there has been some significant movement in this regard. The ACT was the first jurisdiction to make stealthing criminal in October 2021. Tasmania has also since made stealthing a criminal offence. Victoria passed affirmative consent and stealthing laws in August 2022. New South Wales has brought into effect laws to do with affirmative consent that also includes stealthing in June of this year, and also reviews in Queensland and Victoria have recommended criminalising this practice, so it is very important that South Australia takes action on this matter, and the Greens are pleased to add our support to the bill.

The Hon. J.M.A. LENSINK (17:53): I rise to indicate once again that the Liberal Party is supportive of these measures, and there is a lot of commonality in the speeches this afternoon on this legislation. I would also like to add my commendation and thanks to the Hon. Connie Bonaros who was the initiator of the first legislation in the South Australian parliament.

I am not going to cover the ground again in terms of the clauses and those sorts of matters, but just briefly to state that on 7 October 2021 the Australian Capital Territory was the first jurisdiction to pass legislation to specifically criminalise stealthing. Under the current South Australian law, it is arguable that stealthing is already captured as a condition that negates sexual consent and consequently constitutes rape.

It is also arguable that stealthing might constitute an offence where a perpetrator procures sexual intercourse by 'false pretences, false representations or other fraudulent means', is guilty of an offence; however, there is not legal clarity, and the introduction of a specific provision would ensure there is no uncertainty that this conduct is unlawful and would send a clear message to the community that this conduct is unacceptable.

The original Bonaros bill was introduced last year. There was also, as has been noted by the speakers, a bill introduced by the former Liberal government, drafted in the name of the former Attorney-General, the Hon. Vickie Chapman, and that is the bill which is before us today. This bill amends both the Criminal Procedure Act and the Evidence Act, and I am pleased to add some remarks in favour of its passage.

The Hon. S.L. GAME (17:55): I rise to support the honourable member's bill and her ongoing work on this important subject. In other jurisdictions stealthing is an act of sexual assault and victims are protected by legislation. People who experience stealthing have no current legal avenue here to pursue and therefore there are no legal consequences for the offenders. I am pleased that South Australia will join the growing list of states and territories to outlaw this degrading violation to men and women.

We have heard the statistics from the Australia Institute that one in five men and one in three women in Australia will experience stealthing. It is absolutely unacceptable that there is no legislated consequence for perpetrators and no legal redress for victims. Stealthing and the lack of consent it represents can result in unwanted pregnancies, serious sexually transmitted infections and a feeling of lack of control over one's self that can spiral into mental health and wellbeing issues. Consent is paramount, and it is clear in this legislation put forth by the honourable member.

I support victims of stealthing, and I believe that stealth is absolutely a form of sexual assault. One Nation supports strong sexual assault laws and strong consequences for perpetrators. If you do the wrong thing by a sexual partner, you should expect to receive appropriate consequences. I welcome this bill and I am pleased to give my support to the honourable member.

The Hon. C. BONAROS (17:56): I thank all honourable members for their contributions today: the Attorney, the Hon. Irene Pnevmatikos, the Hon. Robert Simms, the Hon. Michelle Lensink, and the Hon. Sarah Game and, indeed, all members in this place. As with the previous occasion, we had unanimous support then and we have unanimous support now. It is a good day, indeed, when we are all on the same page about such an important issue. If only it would happen more often—we all say.

I, too, would like to acknowledge the work that has been done by everybody in this place on this very important issue. I thank the Attorney and the government for their continued support and the opposition for their continued support, but I also acknowledge the former Attorney-General who supported the bill and with whom I worked constructively on improving it. Those changes are reflected in here. Of course, I thank also the Hon. Robert Simms, the Hon. Tammy Franks and the Hon. Sarah Game.

I note particularly, just in relation to the work that the Hon Tammy Franks has done in relation to sex workers, that when I introduced this bill one of the issues that I canvassed at some length was the extra layers of complexity that our sex workers have when it comes to issues involving stealthing. I think I said at the time that Mark from West Lakes was well and truly on notice, and now he well and truly is on notice that that sort of behaviour simply is not acceptable. I acknowledge also the work of the Hon Tammy Franks and the impact that this will have on a cause that she has championed in this place.

This is one of those issues, as I said, that deserves the unanimous support of this chamber for very good reason and, indeed, the parliament as we are all equally concerned about it. I thank all honourable members for their support and look forward to the swift passage of this legislation.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

New clause 1A.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 2, after line 4—After clause 1 insert:

1A—Commencement

This Act comes into operation on a day to be fixed by proclamation.

As foreshadowed in my second reading contribution, this is a simple amendment that will enable the bill to come into operation on a date to be fixed by proclamation. It is to provide sufficient notice and greater certainty to relevant parties, particularly bodies like the Courts Administration Authority and the Director of Public Prosecutions, to be properly informed about the amendments coming into force. Subject to any feedback we receive, I want to reiterate it is the government's intention that we will be implementing it as soon as we practicably can after that.

The Hon. C. BONAROS: I indicate our consultation with the government in relation to those changes and the reasons for them and my support for the amendment.

The Hon. R.A. SIMMS: The Greens are also supportive of the amendment, and I note that the proponent of the bill is comfortable with it.

The Hon. J.M.A. LENSINK: We are happy to support the amendment.

New clause inserted.

Remaining clauses (2 to 6) and title passed.

Bill reported with amendment.

Third Reading

The Hon. C. BONAROS (18:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT