I haven't spent a lot of time looking at that because I know the Criminal Lawyers' Association is going to give you some submissions about that. My understanding of the amendment is that it is broadening the scope of what constitutes sexual behaviour or sexual activity for the purposes of one of those applications to include communications.
From my experience, trial judges are already alive to that issue of whether or not sexual communication is sexual activity for the purpose of that provision. I think the big concern from the defence perspective and from the perspective of balancing the rights, which is what you always have to be concerned about, is whether or not communications around the transaction that forms the subject matter of the offence are caught by that provision. I think that's the real concern. If you define it too narrowly, you will include in the requirement for an application the communications around the transaction.
I think it needs to be drafted in a way that ensures that communications on the same evening of or in anticipation of whatever the transaction is that leads to the event don't get excluded. Therefore, the courts and the defence are able to freely examine the full circumstances of the events that led to the offence, and what you're requiring an application for are truly additional communications that are not connected to the offence. I think that's the concern about how broad that section may be, that it would include or that it would be seen to apply to communications around the offence itself.
I hope that's helpful.