Evidence (Children & Special Witnesses) Amendment Bill (No 31) of 2020
Second reading speech
15 October 2020
Ms ARMITAGE (Launceston) - Mr President, this important bill, which implements the pilot witness intermediary scheme - a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse - is an extremely positive step towards ensuring that those who have special communication needs are appropriately catered for in our justice system.
At this stage, I understand that in order to manage implementation of the scheme, the pilot will apply to children and adults with communication needs who are victims or witnesses in proceedings relating to sexual offence matters and homicide matters.
This is an excellent start and ensures children victims and prescribed witnesses who have experienced crimes of this nature receive support as soon as possible. It is also important to remember that for many witnesses - victims - their ability to tell their story is, in many cases, a cathartic experience, a necessary step towards healing and coming to terms with the trauma and abuse they have experienced, particularly in the context of institutional responses to child sexual abuse.
Inherent in these cases is an imbalance of power between victim and perpetrator, with many institutional responses falling far short of what a victim should expect. Giving victims and witnesses a voice and the means to tell their own stories in their own ways puts some of that power back into their hands.
We must remember participating in the justice system, particularly as a victim, is an extraordinarily difficult process in and of itself. Children and people with communication needs are already placed on the back foot so, providing them with the means to safely give evidence is another extremely important issue which this bill addresses. Specifically, the bill provides a defined meaning for communication need which applies to adult victims and witnesses, other than the defendant, and it will be taken to have a communication need if the quality or clarity of evidence given by them may be significantly diminished by the witnesses' ability to understand, process or express information. It also provides that a witness has a communication need regardless of whether their communication need is temporary, permanent or recurring, and whether the severity of the witness's communication need changes over time, or due to circumstances, or regardless of the cause of the communication need.
This broadened definition will appropriately apply to those in need of an intermediary, who themselves will be a trained professional with specialist skills in communication. It is important we are clear in saying an intermediary does not speak for a witness and does not replace the witness's own evidence. It is rather a conduit through which a witness with a communication need can properly express themselves. The bill provides that an intermediary is a neutral officer of the court who supports both the prosecution and the defence to -
· ensure vulnerable witnesses are asked questions they can understand, and
· make sure that witnesses have access to the materials they need to express themselves in answering questions and that witnesses have adequate time and space to communicate their best evidence.
The intermediary scheme will improve the quality of evidence provided to the court and give the witness an additional layer of safety to produce the best and most accurate evidence for the court to assess.
The appointment and functions of the intermediary are expressly set out by the bill. Intermediaries form a panel of persons suitable to be witness intermediaries for purpose of the act and can only be included if the person has tertiary qualifications in psychology, social work, speech pathology or occupational therapy, or has qualifications, training, experience or skills to meet the duties of the act. This is prescriptive yet broad enough to ensure that the most suitable people can be selected by the secretary for appointment to the panel.
The bill also provides, in no uncertain terms, that the intermediary assesses the witness's communication and other needs and provides a report on this; provides recommendations to the judge and any lawyer appearing as to adjustments; provides assistance to the judge and lawyers to communicate with the witness; and any other functions the judge considers to be necessary.
Moreover, the bill provides that the witness's intermediary must act impartially and, to this end, must make an oath or affirmation before participating in these proceedings. To my mind, these are entirely reasonable and adequate functions to assign to the intermediary to safeguard the defendant's rights throughout judicial proceedings and to support vulnerable witnesses.
The proposed amendment to section 8A of the act prevents a defendant from directly being able to cross-examine a witness for whom an intermediary order has been made unless the cross-examination is undertaken by counsel. This is a further positive step towards protecting especially vulnerable people going through the justice system. Examination and cross-examination are integral parts to the truth-finding process of adversarial judicial proceedings, but protection of witnesses and victims is also extremely important.
As I have already stated, this bill has the dual benefit of supporting vulnerable witnesses, which consequently produces evidence of a higher quality than what might be produced in other circumstances. In this sense, the bill strikes an excellent balance, I believe, between supporting vulnerable witnesses and victims and ensuring that a thorough and robust judicial process is maintained.
I think it is also important to state that this bill does not infringe on the rights of the defendant. It still does not alter the onus or the burden of proof that, in criminal matters, the Crown must establish the defendant's guilt beyond a reasonable doubt. This is an extremely high threshold to meet, and providing intermediary assistance to prescribed witnesses and victims does not change that.
I will be interested to see how literally witness intermediary orders will be applied. I believe there should be a reasonably low threshold to qualify because, as I have already stated, experiencing the criminal justice system is intimidating enough on its own, and for people with any degree of communication needs, it is made all the harder. I reiterate how important it is for power to be restored to vulnerable victims and witnesses of serious crimes, that by providing a witness intermediary better evidence will be produced, ensuring that our justice system overall is improved.
Mr President, I support the bill.