Posted 16/09/2019 by Owen Griffiths
The Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (the Bill) was introduced into the House of Representatives on 24 July 2019. The Bill is substantively similar to an earlier Bill (with the same name) which lapsed with the dissolution of the 45th Parliament.
The Bill will mainly amend the Criminal Code Act 1995 (Criminal Code). Schedules 1–6 introduce a series of new offences into the Criminal Code. Schedule 7 will make amendments to the Crimes Act 1914, the Customs Act 1901 and the Telecommunications (Interception and Access) Act 1979 to reconstitute the terms ‘child abuse material’ and ‘child pornography material’ into a single definition of ‘child abuse material’. In his second reading speech, the Home Affairs Minister, Peter Dutton, noted the updated term ‘more accurately reflect the gravity of these crimes, the harm that is inflicted on victims and survivors, and shifts in national and international best practice’.
Some of the Bill’s amendments respond to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). Although the Royal Commission’s recommendations for criminal law changes were primarily directed to the states and territories, the Bill makes related amendments to Commonwealth law. In particular, Schedule 1 will introduce new offences applying to Commonwealth officers who have responsibility for children (discussed below).
Other Criminal Code amendments include:
- introducing an offence for possession of a child-like sex doll and adding child-like sex dolls to the definition of ‘child abuse material’ (including in the Customs Act) (Schedule 2)
- introducing an offence for possession or control of child abuse material obtained or accessed using a carriage service (such as the internet) (Schedule 3)
- amend an existing offence in the Criminal Code concerning overseas persistent child abuse to make it easier to prosecute (lowering the minimum required number of underlying offences from three to two) (Schedule 4)
- expanding of the definition of ‘forced marriage’ so that existing force marriage offences may apply where either party to the marriage was under 16 years of age (Schedule 5)
- requiring the Attorney-General’s consent before prosecutions for forced marriage offences may be commenced against defendants who are under 18 years of old (Schedule 5) and
- narrowing an existing ‘valid and genuine marriage’ defence so it only applies in more limited circumstances (Schedule 6).
Notably, the separate Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 also before Parliament, includes prescribed minimum penalties for the possession of child-like sex dolls and possessing or controlling child abuse material obtained or accessed using a carriage service offences (contingent on the passage of the Bill). If both Bills pass, the minimum penalty applicable for these offences will be four years’ imprisonment, in the circumstances where it is a second or subsequent offence.
The provisions of the Bill were referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The committee’s majority report recommended that the Senate pass the Bill and stated that ‘[s]ubmitters and witnesses to this inquiry were overwhelmingly supportive of the bill, but the committee notes that some issues were raised and some amendments were proposed’. Additional comments were made by Australian Labor Party (ALP) senators. Additional comments were also made by the Australian Greens (who recommended the Bill be passed with amendments).
Schedule 1—Failing to protect children from, or report, child sexual abuse offences
Schedule 1 will introduce new offences which apply to Commonwealth officers who exercise care, supervision or authority over children, for failing to report child sexual abuse and negligently failing to reduce or remove the risk of child sexual abuse to children. Although broadly supported, some issues and possible amendments to the proposed offences were raised by submitters to the Senate inquiry.
For example, proposed subsection 273B.4(1) creates an offence with a maximum penalty of 5 years imprisonment where:
- a defendant who has care, supervision or authority over a child
- knows there is a substantial risk that any person (a specific person need not be identified and that person could also be a child) will engage in conduct that would constitute a child sexual abuse offence
- the defendant has actual or effective responsibility to reduce or remove that risk and
- the defendant negligently fails to reduce or remove the risk.
Inappropriately broad scope
Some submitters, such as the Legal Aid NSW (Submission 11), considered the Schedule 1 offences may have been drafted ‘too broadly’ and were not consistent with the Royal Commission’s Criminal Justice Report:
The Royal Commission’s Criminal Justice Report specifically recommended that the failure to protect offence should:
- apply to adults
- apply to protect children from sexual offences by adults, rather than sexual offences by children
- protect against abuse by an adult associated with the relevant institution, and
- relate to all children under 16 years old, but only relate to children who are 16 or 17 years old where the potential offender is in a position of authority in relation to the child. Some states have already adopted a failure to protect offence. There are some substantial differences between the proposed Commonwealth provision and the State provisions.
Legal Aid NSW argued that these limitations were important to ensure children were not ‘unfairly captured by the provisions, and that organisations and officers do not become risk averse as a result of unduly onerous obligations’.
Absolute liability
Another issue raised during the inquiry was the application of absolute liability to an element of the proposed offences for failing to protect children from, or report, child sexual abuse. This is the element that ‘… such conduct, if engaged in, would constitute a child sexual abuse offence’. In this context, absolute liability means that there would be no requirement to prove a fault element such as intention, knowledge, recklessness or negligence on the part of the Commonwealth officer being prosecuted in relation to this element of the proposed offences. The Law Council of Australia’s submission argued that these offences should be amended so that ‘the prosecution are required to prove that the accused knew the facts which would amount to a child sexual abuse offence’. However, the Department of Home Affairs and the Attorney-General’s Department (the Departments) (Submission 10) noted that there are instances where the application of absolute liability to elements of offences is justified and, in this case, it was ‘appropriate to ensure compliance with the reporting regime’. In their additional comments, the ALP senators ‘provisionally accepted’ the Departments' response on this issue.
Self-incrimination
Under the proposed Schedule 1 offences defendants are not excused from failing to disclose information to authorities on the grounds of self-incrimination (proposed subsection 273B.5(5)). While the Bill contains a ‘use’ immunity provision (proposed subsection 273B.9(10)) so that the information disclosed is not admissible in evidence against the discloser, it does not contain ‘derivative use’ immunity which may apply to evidence obtained as a direct or indirect consequence of a disclosure.
The Law Council of Australia’s submission (Submission 9) recommended that derivative use immunity should apply to any evidence or information that is provided in response to the application of questioning by law enforcement in relation to the proposed offence. This amendment to the Bill was recommended in the Australian Greens additional comments. The provision was also highlighted by the Standing Committee for the Scrutiny of Bills in Scrutiny Digest 2 of 2019. It drew the attention of senators to the appropriateness of abrogating the privilege against self-incrimination in circumstances where derivative use immunity would not be available.
However, the submission from the Departments stated there were a number of safeguards in place to ensure that the proposed offence did not unnecessarily infringe on the privilege against self-incrimination. These included that prosecutors must consider whether instituting or continuing prosecution is in the public interest and that proceedings cannot commence without the consent of the Attorney-General. In their additional comments, ALP senators also provisionally accepted this position.