Bills Digest No. 48, 2017-18
PDF version [694KB]
Monica Biddington
Law and Bills Digest Section
8 November 2017
Contents
Bills Digest at a Glance
Purpose of the Bill
Structure of the Bill
Background
Constitutional power to enact laws
relating to child sex offences
Existing legislation
Government policy
Royal Commission into Institutional
Responses to Child Sexual Abuse
Committee consideration
Senate Standing Legal and
Constitutional Affairs Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
New criteria to allow the
Attorney-General to revoke a parole order without notice (Schedule 1)
Admissibility of video recording in
evidence-in-chief (Schedule 2)
Cross-examination of vulnerable
person at committal proceedings (Schedule 3)
Amendments to child sex offences in
the Criminal Code (Schedule 4)
Increase existing penalties for child
sex offences relating to both grooming and other online offences (Schedule 5)
Prescribed minimum sentences for
Commonwealth child sex offences (Schedule 6)
A presumption against bail for
serious child sex offences, second or subsequent offences (Schedule 7)
Amendments to Part IB of the Crimes
Act relating to the sentencing of federal offenders (Schedule 8)
Aggravated sentencing factors for
various sexual offences against children (Schedule 9)
Presumption in favour of cumulative
sentences for Commonwealth child sex offenders (Schedule 10)
Conditional release of offenders
after conviction (Schedule 11)
Residential treatment orders for
offenders suffering a mental illness, intellectual disability (Schedule 12)
Maintaining the security of reports,
documents and information from being disclosed (Schedule 13)
Revocation of parole order or
licence, ‘clean street time’ (Schedule 14)
Definition of child sexual abuse and
other consequential amendments (Schedule 15)
Date introduced: 13
September 2017
House: House of
Representatives
Portfolio: Justice
Commencement: The
day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2017.
Bills Digest at a
Glance
- The
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 will, among other things, introduce prescribed
minimum penalties for serious Commonwealth child sex offences.
- The
Bill makes some amendments to seek to minimise the trauma that witnesses and
victims may be exposed to by court processes relating to child sex offences,
including removing requirements to seek leave to admit video recordings as
evidence in chief and to limit the cross-examination of vulnerable people at
committal hearings.
- The
most significant amendment the Bill makes is to increase existing penalties,
and prescribe minimum sentences of imprisonment for, Commonwealth child sex
offences (Schedules 5 and 6).
- The
Bill also creates aggravated sentencing factors for various sexual offences
against children, including when the conduct is inhumane or degrading to the
child.
- The
Bill will also insert a presumption against bail for serious child sex offences
and second or subsequent offences.
- The
amendments will limit the exercise of judicial discretion in many aspects of
sentencing a child sex offender. However, there has not been significant
criticism of the Bill in its current form.
- The
Law Council of Australia opposes aspects of the Bill, particularly mandatory
sentencing, however, other stakeholders are broadly supportive of a measure
which should result in somewhat more consistent sentencing of child sex
offenders.
- The
Bill did not go through an Exposure Draft period, and was debated in both
Houses of Parliament in the week beginning 16 October 2017, following the
tabling of the Senate Legal and Constitutional Affairs Committee report on its
inquiry into the Bill on 16 October 2017.
- The
Senate Legal and Constitutional Affairs Committee recommended that the Bill be
passed. The Committee also recommended that the Government consider whether the
Bill’s definition of ‘engage in sexual activity’ should also be reflected in
the Criminal Code subsection detailing penalties for sexual intercourse with a
child outside Australia (section 272.8 of the Criminal Code). The Committee
further recommended that the Government consider where discretion could be
applied by a court in considering cases where the defendant is severely
cognitively impaired. The Labor Party and the Australian Greens made Additional
Comments but did not dissent from the main Committee’s views.
- However,
in the debate on the Bill in the House of Representatives, the Shadow
Attorney-General Mark Dreyfus voiced the Labor Party’s opposition to mandatory
sentencing, which is proposed in Schedule 6 of the Bill, arguing that
‘mandatory minimum sentences are not the solution to Australia's crime
problems, they're not the solution to Australia's gun problems and they're not
the solution to child sexual abuse. There is no evidence that mandatory minimum
sentences act as a deterrent. In fact, they actually make Australia's criminal
justice system less effective, because they make juries less likely to
convict.’[1]
- Further, Shadow Minister for Justice Clare O’Neil concluded in her
speech on the Bill that ‘Labor wholeheartedly support[s] the object of this
Bill. We have no tolerance for child sexual abuse. But we believe this Bill
needs to contain even stronger messages of condemnation for these horrible
crimes. We will be pleased to support this Bill with strengthening measures in
the Senate.’[2]
Purpose of the Bill
The purpose of the Crimes Legislation Amendment (Sexual
Crimes Against Children and Community Protection Measures) Bill 2017 (the Bill)
is to make amendments to the following Acts:
The amendments will make significant changes to the laws
relating to child sex offences affecting penalties, custody, bail, rules of
evidence, sentencing, parole and rehabilitative treatment. Of significance, new
offences are proposed to criminalise the grooming of third parties for the
purpose of procuring a child for sexual activity and to criminalise the
provision of an electronic service to facilitate dealings with child abuse
material online. Further, prescribed minimum penalties are proposed for certain
serious Commonwealth child sex offences.
Structure of the Bill
The Bill is presented as 15 Schedules that will:
- permit
the revocation of a parole order or licence without notice, if doing so is
necessary to ensure the safety and protection of the community or of another
person (Schedule 1)
- remove
the requirement for the court to grant leave before admitting a video recording
of an interview of a vulnerable person as evidence in chief (Schedule 2)
- remove
the requirement for a vulnerable witness to be available to give evidence at
committal proceedings and prohibiting cross-examination of these witnesses at
committal proceedings (Schedule 3)
- create
new aggravated offences that apply where the child victim of certain sexual assault
offences is subject to cruel, inhuman or degrading treatment in connection
with, or dies as a result of, the offence (Schedule 4)
- create
a new offence criminalising using postal or similar services to ‘groom’ another
person to make it easier to procure a person under 16 years of age for sexual
activity (Schedule 4)
- increase
the penalties for existing offences in the Criminal Code that cover
grooming and sexual activity with a child outside Australia, and offences
relating to the use of postal or a similar service involving sexual activity with
a person under 16 (Schedule 5)
- introduce
prescribed minimum penalties in the Crimes Act for Commonwealth child
sex offences that attract the highest maximum penalties, and all other
Commonwealth child sex offences where the offender is a repeat child sex
offender (Schedule 6)
- introduce
a presumption against bail for Commonwealth child sex offences that attract the
highest maximum penalties (Schedule 7)
- require
the court to consider, at the time of sentencing and amongst other existing
factors: the timing of a guilty plea and whether that resulted in any benefit
to the community; if the person’s standing in the community aided the
commission of the offence (creating an aggravated offence); and rehabilitation
or treatment options for the offender (Schedule 8)
- insert
additional aggravated sentencing factors that apply when a court is sentencing
a child sex offender, including the age and maturity of the victim and the
number of people involved in the commission of the offence (Schedule 9)
- insert
a presumption in favour of cumulative sentences for Commonwealth child sex
offences (Schedule 10)
- require
all offenders convicted of a Commonwealth child sex offence to serve a period
of imprisonment that is not suspended unless the court is satisfied that there
are exceptional circumstances (Schedule 11)
- add
a residential treatment order as an additional sentencing alternative in
subsection 20AB(1AA) of the Crimes Act (Schedule 12)
- provide
that reports, documents and information are not required to be disclosed to a
person under Part 1B of the Crimes Act where the provision of the
information, in the Attorney-General’s opinion, is likely to prejudice national
security (Schedule 13)
- introduce
federal ‘clean street time’ provisions to Part IB of the Crimes Act
(Schedule 14) and
- repeal
references to ‘child pornography material’ in the Criminal Code and
other Commonwealth legislation and replace it with a broad definition of ‘child
abuse material’ (Schedule 15).
Background
The Bill was introduced into the House of Representatives
on 13 September 2017.[3]
It was referred to the Senate Legal and Constitutional Affairs Legislation
Committee the following day with a four week consideration and reporting
period.[4]
While broadly speaking, legislation that aims to protect children from the
abhorrent crimes of sexual abuse will be supported, there are legal
technicalities and considerations in the Bill that may warrant further
consideration and refinement.
Constitutional power to enact laws relating to child sex
offences
The states and territories are responsible for child sex
related offences occurring domestically. The Commonwealth has Constitutional
power where telecommunications technology is used or where the offence is
committed overseas, with an Australian connection. The Bill’s proposed
amendments to child sex offences in the Criminal Code have a connection
to telecommunications networks (‘carriage services’ as defined by the Telecommunications
Act 1997). The Commonwealth has power to make laws with respect to
‘postal, telegraphic, telephonic and other like services’ under section 51(v)
of the Constitution
and with respect to ‘external affairs’ under section 51(xxix). Further, Australia is a party to several relevant international conventions in
this area: the Convention on the Rights of the Child, the United
Nations Convention Against Transnational Organised Crime, the Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, the International Convention to Suppress the Slave Trade and
Slavery, and others.[5]
Article 3(1) of the Optional
Protocol on the Sale of Children, Child Prostitution and Child Pornography
requires that certain forms of child sex abuse be covered by the criminal law.[6]
Consequently:
the new offence for facilitating online dealings in
child abuse material criminalises new ways that child sex offenders are
utilising technology to perpetrate offences. These amendments are necessary to
ensure that the criminal law remains abreast of technological advances and to
ensure that child sexual abuse is fully criminalised.[7]
Existing legislation
Existing Commonwealth child sex offences are in the Crimes
Act 1914 and the Criminal Code Act 1995. Of relevance to this
Bill, the Commonwealth enacted offences in 2005 to prohibit using a carriage
service for child pornography and child abuse material (as defined in section
473.1 of the Criminal Code). Further information on these offences, and
all sexual offence and child sexual abuse legislation in Australian
jurisdictions, is available in the Australian Institute of Criminology’s Special Report for the Royal
Commission into Institutional Responses to Child Sexual Abuse.[8]
Government policy
At the federal level, there has been increased attention
on child sex matters with Senator Derryn Hinch’s consistent lobbying for tough
penalties and a public register of all child sex offenders.[9]
The Bill complements recently legislated measures that stop convicted child sex
offenders from travelling overseas to commit criminal acts of abuse against
children.[10]
The Bill also seeks to respond to the changing and sinister reality of modern
child sex offences, where it is possible to cause significant harm to a child
through the use of technology. The Attorney-General’s Department further
explains that part of the policy rationale behind the Bill is:
... [a]dvances in technology, and increasing access to those
technologies, is facilitating a progressive increase in the number of charges
and prosecutions for online sexual abuse of children. Offenders are using more
technologically sophisticated networks to distribute child sexual abuse
material, using the dark web, encryption and online ‘cloud’ storage ...
Australia’s laws should reflect the changing landscape of
offending, and appropriately reflect the impact that online sexual abuse can
have on child victims ...
... [T]he Bill addresses the myth that child sexual abuse material
offences are a ‘victimless’ crime by criminalising emerging uses of
technology to facilitate dealing in child abuse material and ensuring that the
terminology and sentences for these offences reflects the gravity of the
offending. Behaviour such as accessing and transmitting child sexual abuse
material encourages the market demand for, and commercialisation of, child
abuse material and leads to further physical and sexual abuse of children, in
addition to the harm suffered in the production of that material.[11]
Royal Commission into Institutional Responses to Child
Sexual Abuse
Following an investigation and report by
the ABC’s Four Corners program in 2012 into allegations of historical and continued child
abuse by members of the Catholic Church,[12]
the then Prime Minister, Julia Gillard, announced in November 2012 the
Government’s intention to establish a Royal Commission specifically examining
‘institutional responses to instances and allegations of child sexual abuse in
Australia’.[13]
A short period of consultation on the establishment of the Commission followed,
with a consultation paper released on 19 November 2012 and comments requested
by 26 November 2012. On 11
January 2013, on advice from the Prime Minister, Governor General Quentin Bryce
issued Letters Patent to appoint a six-member
Royal Commission to investigate ‘Institutional Responses to Child Sexual Abuse’.
The Royal Commission’s work has been conducted through
three approaches: private sessions, public hearings and policy and research.
In relation to legislative reforms, the
Commission’s research report, Criminal Justice contains 85 recommendations
aimed at reforming the Australian criminal justice system in order to provide a
fairer response to victims of institutional child sexual abuse.[14] Released on 14 August
2017, the report recommends:
... a sweep of legislative and policy changes. It
includes reform to police and prosecution responses, evidence of complainants,
sentences and appeals, and grooming offences.[15]
The Bill is consistent with a number of recommendations
made by the Royal Commission in that report. However, the Explanatory
Memorandum is not explicit about which recommendations the Bill is
implementing. This Digest indicates where it is clear that the Bill is addressing
the recommendations.
Committee consideration
Senate Standing Legal and Constitutional Affairs Committee
The Senate Selection of Bills Committee considered the Bill
on 14 September 2017. Labor Senator Anne Urquhart proposed that the Bill be referred
to a committee for inquiry ‘given the importance of the subject matter, the
complexity of some of the Bill’s provisions and the broad scope of the Bill’.[16]
The Bill was referred to the Senate Standing Committee on Legal and
Constitutional Affairs for inquiry and report by 16 October 2017. Details of
the inquiry are at the inquiry
homepage.
Eight submissions have been published on the inquiry
homepage, including one from the Attorney-General’s Department which provides
additional context to the Government’s policy rationale for the Bill.
The Committee’s report made three recommendations,
including that the Bill be passed.[17]
The other recommendations endorsed two recommendations from the Law Council of
Australia’s submission on the Bill.[18]
These recommendations were that the definition of ‘engage in sexual activity’
should also be reflected in the Criminal Code subsection detailing
penalties for sexual intercourse with a child outside Australia (section 272.8
of the Criminal Code); and that the Government consider where discretion
could be applied by a court in considering cases subject to a mandatory minimum
penalty where the defendant is severely cognitively impaired. The Labor Party
and the Australian Greens made Additional Comments but did not dissent from the
Committee’s views.[19]
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills reported
on the Bill on 18 October 2017.[20]
The Committee requested further advice on the following key aspects of the
Bill:
- why
it is necessary to provide the Attorney-General with a broad discretionary
power not to give notice before revoking a person’s parole and why the existing
provisions in section 19AU of the Crimes Act 1914 are insufficient to
address any immediate risks to safety (Schedule 1)
- why
it is proposed to reverse the legal burden of proof, and how the reversal of
the burden of proof interacts with the obligation on the prosecution to prove
the defendant’s belief about age (relating to defences in items 16,18, 37
and 39 in Schedule 4)
- the
appropriateness of removing judicial discretion in sentencing for certain child
sex offences, whether there are examples of analogous offences that carry a
mandatory minimum penalty, and how mandatory minimum sentences would interact
with existing sentencing principles regarding the setting of a non-parole
period (Schedule 6)
- the
appropriateness of imposing a presumption against bail, including information
as to why the current bail requirements are insufficient, and why it is
necessary to create a presumption against bail rather than specifying the
relevant matters a bail authority must have regard to in exercising their
discretion whether to grant bail (Schedule 7)
- the
proposal to allow the Attorney-General to refuse parole without reason and on
‘opinion’, rather than objective criteria, why the information could not be
provided to the applicant’s legal representative and why the decision would not
be subject to merits review (Schedule 13).[21]
Policy position of non-government parties/independents
The Australian Greens, in their
Additional Comments to the Senate Legal and Constitutional Affairs Committee’s
Report on the inquiry into the Bill, support the legislative measures that
address protecting children against sexual abuse and harm. The Australian
Greens endorsed concerns raised in the Law Council of Australia’s submission
and pointed to some aspects of the Bill that may have negative and unintended
consequences.[22]
The Australian Labor Party is broadly
supportive of the objects and many of the measures contained in the Bill. The
Labor Party also noted the concerns raised in submissions to the inquiry and believes
that these concerns should be seriously considered and, where appropriate and
possible, addressed by the Government. Labor also believes that there are areas
of the Bill that could and should be strengthened, stating that ‘Labor will be
looking to work with the Government to ensure this Bill is as effective as
possible’.[23]
In the debate on the Bill in the
House of Representatives, the Shadow Attorney-General Mark Dreyfus voiced the
Labor Party’s opposition to mandatory sentencing, which is proposed in Schedule
6 of the Bill, arguing that ‘mandatory minimum sentences are not the solution
to Australia's crime problems, they're not the solution to Australia's gun
problems and they're not the solution to child sexual abuse. There is no
evidence that mandatory minimum sentences act as a deterrent. In fact, they
actually make Australia's criminal justice system less effective, because they
make juries less likely to convict.’[24]
Further, Shadow Minister for Justice Clare
O’Neil concluded in her speech on the Bill that ‘Labor wholeheartedly
support[s] the object of this Bill. We have no tolerance for child sexual
abuse. But we believe this Bill needs to contain even stronger messages of
condemnation for these horrible crimes. We will be pleased to support this Bill
with strengthening measures in the Senate.’[25]
Other non-government parties and independents do not
appear to have commented on the Bill at the time of writing.
Position of major interest groups
Submissions made to the Senate Legal and Constitutional
Affairs Committee’s Inquiry into the Bill were generally supportive of the
Bill, particularly the increase to the penalties of imprisonment for
Commonwealth sex offenders. However, the Law Council of Australia (LCA)
considered that there should be a review of the proposed three year increase in
maximum penalties.[26]
Further, the LCA, despite noting the short timeframe in
which to make a submission, raised more detailed concerns on the broader legal
policy matters raised by the Bill, particularly that the Bill has been
introduced prior to the Final Report of the Royal Commission into Institutional
Response to Child Sexual Abuse, which is due in December 2017.[27]
The LCA also raised issues about whether the proposed amendments would
unintentionally capture normal teenage behaviour where one person is over the
age of 18 and the other is not.[28]
The LCA is strongly opposed to mandatory minimum penalties for criminal
offences.[29]
Academic Lorana Bartels raised wider criminal justice issues
related to the effect of mandatory sentencing as a broader criminal justice
policy, including its impact on women and Indigenous people.[30]
The submission did not expressly support the Bill.[31]
The Uniting Church of Australia, in its submission to the
Committee, voiced support for the Bill, in particular Schedules 2-5 and 15.[32]
Other submissions from Anti-Slavery Australia, the Carly Ryan Foundation and
Collective Shout commended the Bill. The Attorney-General’s Department also
submitted a detailed policy paper to the Senate Committee.[33]
Financial implications
The Explanatory Memorandum notes that there will be some
increase in costs borne by state and Commonwealth agencies for investigating
and prosecuting new offences, and that these costs will be absorbed.[34]
In relation to potentially increased prisoner numbers, the
Explanatory Memorandum explains that convicted federal sex offenders are housed
in state and territory prisons, but as they are only a small percentage of the
prison population, the financial impact on states and territories ‘will be
negligible’.[35]
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[36]
The Statement of Compatibility advises that the Bill
advances measures that State Parties have undertaken to implement under the Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography,[37]
which elaborates on Article 34 of the Convention
on the Rights of the Child, including:
- criminalising the offering,
delivering or accepting a child for sexual exploitation, and distributing,
disseminating, offering, selling or possessing child pornography (Article
3(1));
-
making child exploitation offences
punishable by appropriate penalties that take into account their grave nature
(Article 3(3));
- protecting the rights and interests
of child victims at all stages of the criminal justice process, including
adopting procedures to recognise their special needs as victims (Article 8);
and
- strengthen laws to prevent child
exploitation offences (Article 9).[38]
Parliamentary Joint Committee on Human Rights
Like the Scrutiny of Bills Committee, the Parliamentary
Joint Committee on Human Rights (PJCHR) questioned the removal of judicial
discretion in the Bill (Schedule 6). The PJCHR noted concerns about the Bill’s
impact on the right not to be arbitrarily detained, the right to have a
sentence reviewed by a court and the right to release pending trial. The Committee
has sought further advice from the Minister on these issues.[39]
Key issues and provisions
New criteria to allow the Attorney-General to revoke a
parole order without notice (Schedule 1)
Schedule 1 of the Bill will insert a new exception where
notice to a federal offender is not required when the Attorney-General revokes
their parole. Presently, section
19AU of the Crimes Act allows the Attorney-General, by written
instrument, to revoke a parole order or licence at any time before the end of
the parole or licence period if the offender has failed to comply, or there are
reasonable grounds for suspecting that the offender has failed to comply, with
a condition of the order or licence (subsection 19AU(1)).
However, in most cases, before revoking the parole order or
licence the Attorney-General must give a written notice to the offender advising
them of the condition alleged to have been breached and that the Attorney‑General
proposes to revoke the parole order or licence 14 days after the date that the
notice is issued unless, before the end of that period, the offender gives
written reasons why the order or licence should not be revoked and those
reasons are accepted by the Attorney-General (subsection 19AU(2)).
Subsection 19AU(3) then outlines four conditions that remove
the need for notice to be given to the person. In summary they are where the
person’s whereabouts are unknown, where it is urgent, where the
person is outside Australia or where it is necessary in the interests
of the administration of justice.
The amendment will insert new paragraph 19AU(3)(ba) to
allow the Attorney-General to revoke the parole or licence without giving
notice to the person in the interests of ensuring the safety and protection
of the community or of another person.
All imprisoned offenders are incarcerated because they are
considered by a court to be, to some degree, a danger to (the safety of) the
community. As part of standard sentencing practices, the court can use its
discretion to determine a non-parole period of the prison sentence, after which
time the offender can apply for parole, which may be allowed with conditions
that might include weekly reporting, limited movement etc.
The proposed amendment is broad and its general application would
mean that parole could be revoked without notice by the Attorney-General for
many federal offenders (including terrorist offenders, drug offenders and
trafficking offenders). If parole is revoked, the person is remanded in
custody. This deprivation of liberty and potential encroachment on a judicial
process will raise concerns for key stakeholders, lawyers and human rights
organisations. The Government states that the person is ‘still afforded
procedural fairness as they retain the opportunity under section 19AX of the Crimes
Act to make a written submission to the Attorney-General as to why the
parole order should not be revoked’.[40]
The Statement of Compatibility with Human Rights states that the amendments
made by Schedule 1 are reasonable, necessary and proportionate, ‘appropriately
balanc[ing] offenders’ right to liberty with the primary right of children
under the [Convention on the Rights of the Child] to be protected from sexual
abuse’.[41]
However, it is not only child sex offenders who can be captured by the
amendment.
A further effect of this proposed provision is in
circumstances where a minimum sentence of imprisonment (as outlined in Schedule
6 of the Bill) is prescribed and imposed, and a non-parole period is applied by
the discretion of the sentencing judge, the Attorney-General would be able to
revoke the parole, if granted, without notice, putting the offender back in
prison. This could be seen as an affront to the discretionary nature of the
sentencing process even where a non-parole period is not prescribed by
legislation.
Admissibility of video recording in evidence-in-chief
(Schedule 2)
In his second reading speech on the Bill, Minister for
Justice Michael Keenan stated that the Government remains committed to
strengthening the protections afforded to child and other vulnerable witnesses
giving evidence in Commonwealth criminal proceedings.[42]
Further, both Schedules 2 and 3 intend to ‘improve justice outcomes by limiting
the retraumatisation of vulnerable witnesses by removing barriers to the
admission of pre-recorded video evidence and ensuring that they are not subject
to cross-examination at committal and other preliminary hearings, thus allowing
them to put their best evidence forward at trial’.[43]
Part IAD of the Crimes Act (‘Protecting vulnerable
persons’) outlines procedural protections for witnesses or victims of offences
listed in section 15Y, which include:
- an
offence against Division 272 of the Criminal Code (child sex offences
outside Australia) (paragraph 15Y(1)(cab))
- an
offence against Division 273 of the Criminal Code (offences involving
child pornography material or child abuse material outside Australia) (paragraph
15Y(1)(cac)) and
- an
offence against Subdivision B or C of Division 471 of the Criminal Code (offences
relating to use of postal or similar service involving sexual activity with
person under 16) (paragraph 15Y(1)(ca)).
Presently, the court may grant leave for a video recording
of an interview conducted by police to be admitted as evidence in chief (paragraph
15YM(1)(b)). Subsection 15YM(2) prohibits the court from giving leave if
satisfied that it is not in the interest of justice for the person’s evidence
in chief to be given by a video recording. The Government proposes to remove the
requirement to seek the leave of the court for video evidence to be admitted because
it ‘may have an adverse effect on the vulnerable witness and is contrary to the
intent of the vulnerable witness protections more broadly’.[44]
Items 1 and 2 of Schedule 2 will amend section 15YM
to allow a video recording of an interview of a person (a child witness, a
vulnerable adult complainant, or a person declared as a special witness under
subsection 15YAB(1)), in a proceeding to be admitted as evidence in chief
if a constable, or a person of a kind specified in the regulations, conducted
the interview.
The Explanatory Memorandum notes that removing the requirement
to seek leave ‘also brings the Commonwealth’s vulnerable witness protections
into line with the approach taken by states and territories’.[45]
The amendments complement recommendations that were made
about police investigative interviewing in relation to reports of child sexual
abuse by the Royal Commission, which stated that police conduct should accord
with principles including:
... the importance of video recorded interviews for children
and other vulnerable witnesses should be recognised, as these interview usually
form all, or most of the complainant’s and other relevant witnesses’ evidence
in chief in any prosecution.[46]
Improving the interview method, substance and the
technological quality of the interview will have an impact on its use without
leave from the court, going further to protect vulnerable witnesses.
Cross-examination of vulnerable person at committal
proceedings (Schedule 3)
Schedule 3 will insert new section 15YHA into the Crimes
Act (item 5). Proposed subsection 15YHA(1) prevents the cross-examination,
at committal proceedings or proceedings of a similar kind, of a child witness,
a vulnerable adult complainant or a person declared as a special witness under
section 15YAB.
The Explanatory Memorandum outlines that the amendments in
Schedule 3 will achieve three things:
- vulnerable witnesses will be spared an additional risk of
re-traumatisation
- criminal
justice processes will be streamlined by ensuring lengthy cross-examination is
reserved for trials and not committal proceedings (or proceedings of a similar
kind)
-
the Commonwealth will be brought broadly into line with practice in
other Australian states and territories.[47]
In its 2006 report, Uniform Evidence Law, the
Australian Law Reform Commission (ALRC) found that child witnesses are particularly
vulnerable in the adversarial trial system. In their inquiry into children and
the legal process, the ALRC and the Human Rights and Equal Opportunity
Commission (now the Human Rights Commission) ‘heard significant and distressing
evidence that child witnesses, particularly in child sexual assault cases, are
often berated and harassed to the point of breakdown during cross-examination’.[48]
The amendments in this Bill will be a significant step in reducing the trauma
to vulnerable witnesses.
Amendments to child sex offences in the Criminal Code (Schedule
4)
Section 272.9 of the Criminal Code prohibits a
person from engaging in sexual activity (other than sexual intercourse) with a
child, where the sexual activity is engaged in outside Australia.[49]
The maximum penalty for the offence is 15 years’ imprisonment. Subsection
272.9(5) outlines a defence to a prosecution for the offences in subsections
272.9(1) and (2) if the conduct constituting the offences consists only of the
child being in the presence of the defendant while sexual activity is engaged
in; and the defendant proves that he or she did not intend to derive
gratification from the presence of the child during that activity.
Without changing the substantive offence, item 1
will insert a Note after subsection 272.9(1) of the Criminal Code,
to clarify that the definition of ‘engage in sexual activity’ in the Dictionary
of the Criminal Code includes being in the presence of another person
(including by means of communication that allows the person to see or hear the
other person) while the other person engages in sexual activity. This would
include communication through electronic devices such as laptop computers,
tablets or television screens.
Items 3 and 26 insert new aggravated offences
into paragraph 272.10(1)(b) and paragraph 474.25B(1)(b) respectively. The new
offences will apply, respectively, to the underlying offences in sections 272.8
and 272.9 (discussed above) and section 474.25A (using a carriage service for
sexual activity with a person under 16 years of age). A maximum penalty of
imprisonment of 25 years will apply to these offences.
Proposed new paragraph 272.10(1)(b) provides that a
person commits the aggravated offence if they commit an offence under section
272.8 or 272.9 (the underlying offence) and one or more of the following apply:
(i) the
child has a mental impairment at the time the person commits the underlying offence;
(ii) the
person is in a position of trust or authority in relation to the child, or the
child is otherwise under the care, supervision or authority of the person, at
the time the person commits the underlying offence;
(iii) the
child is subjected to cruel, inhuman or degrading treatment in connection with
the sexual activity covered by the underlying offence;
(iv) the
child dies as a result of physical harm suffered in connection with the sexual
activity covered by the underlying offence.
Paragraph 474.25B(1)(b) is amended in a similar way by the
Bill. Subparagraphs (iii) and (iv) are new and are introduced because ‘the Government
is deeply disturbed by the emerging trend where offenders inflict severe
violence on children alongside sexual abuse. To ensure that this conduct is
appropriately punished, the Bill will criminalise activities that aggravate
particular types of sexual offending such as subjecting a child to cruel,
inhuman or degrading treatment, or causing the death of the child’.[50]
Schedule 4 will further amend specified subsections in
Division 471 of the Criminal Code, addressing postal offences. The key
items are:
- item
5, inserting a new offence (proposed section 471.25A) to use a
postal or similar service to ‘groom’ another person to make it easier to procure
persons under 16 to engage in sexual activity
- item
9, substituting subsections 471.27(3) and (4). Section 471.27 sets out the
approach to be taken in relation to offences against Subdivision C of Division
471, which deals with using postal or similar services to commit offences involving
sexual activity with a person aged under 16. Currently subsections 471.27(3) and
(4) relate to evidentiary requirements for establishing the age that the sender
of a posted article believed the recipient to be. Proposed subsection 471.27(3)
redrafts and combines the current provisions (without making substantive
changes to their substance) to provide that, for the purposes of Subdivision C,
evidence that a person was represented to the defendant as being of, younger
than, or older than a certain age is proof that the defendant believed the
recipient to be that age, unless there is evidence to the contrary
- item
12, inserting proposed subsection 471.28(2A) where, for the purposes
of an offence against section 471.25A (new offence in item 5), it
does not matter that the recipient or the child is a fictitious person
represented to the sender as a real person[51]
- a
defence to the new offence in proposed section 471.25A (item 5). Proposed
subsection 471.29(1A), inserted by item 16, will provide that it is
a defence if the defendant proves that, at the time he or she caused the
article to be posted, the defendant believed that the child involved was at
least 16.
Under Schedules 5 and 7 of
the Broadcasting
Services Act 1992 the Online Content Co-Regulatory Scheme administered by the Australian Communications and Media
Authority regulates internet service
providers and internet content
hosts. However, it does not regulate either the producers of content, or
persons who upload or access content. Technological advances create and expose
a gap in the existing law that the Bill will address. Item 20 will
insert proposed new section 474.23A to create a new offence, with a maximum
penalty of imprisonment for 18 years, to provide an electronic service with the
intention that the service will facilitate the commission of an offence against
sections 474.22 or 474.23 of the Criminal Code.[52]
The new offence will apply if:
(a) the person engages in
any of the following conduct:
(i) creating, developing, altering or
maintaining an electronic service;
(ii) controlling or moderating an
electronic service;
(iii) making available, advertising or
promoting an electronic service;
(iv) assisting in doing anything covered
by a preceding subparagraph; and
(b) the person does so with
the intention that the electronic service be used:
(i) by that person; or
(ii) by another person;
in
committing, or facilitating the commission of, an offence against 474.22 or
474.23.
Increase existing penalties for child sex offences
relating to both grooming and other online offences (Schedule 5)
Schedule 5 will increase existing penalties for online
child sex offences, including grooming offences. The term ‘grooming’ generally
refers to behaviour that is designed to make it easier for the offender to
procure a child for sexual activity. Grooming offences in the Criminal Code
already exist and Schedule 5 to the Bill proposes to increase the
penalty of all the relevant offences by three years. The offences are:
- subsection 272.9(1)—engaging in sexual activity with a child
outside Australia (item 1 of Schedule 5)
-
subsection 272.9(2)—causing a child to engage in sexual activity
in the presence of the defendant (item 2)
-
subsection 272.15(1)—grooming a child to engage in sexual
activity outside Australia (item 3)
-
subsections 471.25(1) and (2)—using a postal or similar service
to groom persons under 16 (items 4 and 5)
- subsection 471.26(1)—using a postal or similar service to send
indecent material to a person under 16 (item 6)
- subsection 474.25A(1)—engaging in sexual activity with a child
using a carriage service (item 8)
-
subsection 474.25A(2)—causing a child to engage in sexual
activity with another person (item 9)
-
subsection 474.27(1) and (2)—using a carriage service to groom a
person under 16 (items 10 and 11)
- subsection 474.27A(1)—using a carriage service to transmit
indecent communication to a person under 16 (item 12).
The Explanatory Memorandum outlines that the proposed
increase to penalties for grooming offences ‘reflects the growing body of
evidence that demonstrates the extent of harm “grooming” has on a child victim ...
The impact of ‘grooming’ can be damaging and lifelong in its effect, likely
because in establishing trust and normalising sexually harmful behaviour, the
perpetrator impacts the child victim’s psychosocial development’.[53]
The arbitrary approach of adding three years to these
offences has been questioned by Dr Lorana Bartels in her submission to the
Senate Committee’s inquiry into the Bill, noting that the effect of this is
that the penalties for some offences (those with lower maximum sentences) are increased
by a larger proportion and this may be an anomaly. [54]
(That is, increasing a seven year maximum sentence to a 10 year maximum
sentence (as in item 6 of Schedule 5) results in the new penalty being 43 per
cent higher than the original penalty; whereas increasing a 15 year maximum
sentence to an 18 year maximum (as in items 1 and 2), results in the new
penalty being 20 per cent higher than the original sentence.) To address this,
the Parliament might seek to readjust the proposed penalties, or increase the
penalties with the highest number of years’ imprisonment by an additional two years.
Prescribed minimum sentences for Commonwealth child sex
offences (Schedule 6)
According to the Attorney-General’s Department, 59 per
cent of charges for Commonwealth child sexual abuse offences since 2010 have
resulted in a custodial sentence and 1.8 years is the average custodial
sentence length for Commonwealth child sex offences.[55]
However, it is also necessary to note that these offences have attracted a low
number of prosecutions, which can create a skewed statistical result.
For example, in the six cases between 2012 and 2017 where
a person has served a sentence for an offence under section 474.25A(1) of the Criminal
Code (engaging in sexual activity with a child while using a carriage
service), three of the offenders received sentences of three, four and five years
and three offenders received a sentence of 18 months, bringing the average
to 33 months where the maximum sentence possible is currently 15 years.[56]
An offender is sentenced to a prison term based on many factors, and the
maximum penalty applicable for the offence (and where it exists, a prescribed
minimum penalty) is only one factor for the sentencing judge to consider and
apply. Nonetheless, there is a strong push to modernise sentencing practices to
reflect the impact of technology on crime, the potential for a greater impact
on a wider number of victims and community expectations that the offenders will
be appropriately punished.[57]
Prescribing minimum penalties is one way the legislature can achieve this.
The Bill proposes to insert prescribed minimum sentences
for offences classified as serious Commonwealth child sex offences and to all
child sex offences where the offence is a second or subsequent offence. The
Bill uses the term ‘minimum penalties’ and while the Explanatory Memorandum
uses the term ‘mandatory’, it is more accurate to define the penalties as
prescribed minimum penalties. Prescribed minimum penalties are different to
mandatory sentencing:
A presumptive sentencing system is where parliament
prescribes a minimum penalty that must be imposed unless the judiciary
determines, in accordance with the legislation and the factors of the case,
that a departure is justified.[58]
By virtue of the operation of proposed section 16AAC
of the Crimes Act (‘Exclusions and reductions’), at item 2
of Schedule 6, the amendments facilitate the exercise of the court’s
discretion to impose a sentence of less than the minimum penalties specified in
proposed section 16AAA or subsection 16AAB(2) in specific restricted
circumstances. The court can impose a lesser sentence if the court considers it
appropriate because of either or both of the following:
-
the person pleaded guilty or
- the
person cooperated with law enforcement agencies in the investigation of the
offence or of a Commonwealth child sex offence.
Proposed subsection 16AAC(3) outlines the scope of
the sentence reductions that the court may apply in these circumstances.
Proposed paragraph 16AAC(1) provides that the
minimum penalties listed in proposed section 16AAA and subsection 16AAB(2)
do not apply to a person who was aged under 18 years when the offence was
committed.
In this sense then, and with the additional factor that
non-parole periods are not specified, the court still has some sentencing
discretion in what would otherwise be a very strict mandatory sentencing
framework. However, the Law Council nonetheless strongly opposes this Schedule
of the Bill, noting that the imposition of ‘mandatory minimum sentences upon
conviction for criminal offences imposes unacceptable restrictions on judicial
discretion and independence, and undermines fundamental rule of law principles
and human rights obligations’.[59]
A presumption against bail for serious child sex offences,
second or subsequent offences (Schedule 7)
Existing section 15AA of the Crimes Act outlines
circumstances where bail is not to be granted for specified Commonwealth
offences, unless exceptional circumstances exist that justify release on bail.
The specified offences are terrorism offences, treason and espionage offences,
and circumstances where the death of a person is alleged to have been caused by
conduct that is a physical element of the offence. Proposed section 15AAA,
at item 3 of Schedule 7, will insert a presumption against the
granting of bail for certain Commonwealth child sex offences. The new provision
is intended to have the effect of both protecting children and preventing an
alleged offender from continuing to use anonymous practices such ‘as encryption
and virtual private network [which] makes the enforcement of conditions
particularly difficult where that relates to internet offending’.[60]
Proposed section 15AAA will apply the presumption
against a person charged with or convicted of:
- a serious
Commonwealth child sex offence listed in column 1 of the table in proposed section
16AAA (at item 2 of Schedule 6) or
- an
offence described in column 1 of the table in proposed subsection 16AAB(2) (at
item 2 of Schedule 6), who has previously been convicted of a child sexual
abuse offence.
- Bail may only be granted to such people if the authority
considering whether to grant bail is satisfied that circumstances exist that
justify the grant. In making this determination, the bail authority must
consider whether the person:
- is likely to fail to appear at any proceedings for the offence
-
is likely to commit a further offence
- would put at risk the safety of the community or cause a person harm
- would be likely to conceal, fabricate or destroy evidence or intimidate
a witness
- was aged 18 years or over when the offence was committed
- has
pleaded guilty, and is unlikely to undertake rehabilitation or treatment while
on bail (proposed subsection 15AAA(2)).
The bail authority is only required to take these factors
into account to the extent that they are relevant and known to the authority.
The bail authority may also take other relevant factors into account in
deciding whether circumstances exist to support the grant of bail.
The Statement of Compatibility with Human Rights outlines
that the given the ‘proliferation of different types of online child sexual
abuse and communication technologies allowing for obfuscation of online
criminal conduct, it is particularly important to ensure that any risk is
mitigated through appropriate conditions... This presumption [against bail] is
rebuttable and provides judicial discretion as to determining whether a
person’s risk on bail can be mitigated through appropriate conditions’.[61]
Amendments to Part IB of the Crimes Act relating to the
sentencing of federal offenders (Schedule 8)
Section 16A of the Crimes Act outlines the matters to
which a court is to have regard when passing a sentence for a federal offence.
The list of matters in subsection 16A(2) includes the nature and circumstances
of the offence; the personal circumstances of any victim of the offence; the
degree to which the offender has cooperated with law enforcement; the need to
ensure that the person is adequately punished, and others. Paragraph 16A(2)(g)
requires the court to take into account a guilty plea and will be amended by item
1 of Schedule 8 to also require the timing of that guilty plea and
the degree to which the plea resulted in any benefit to the community, or to
any victim or witness to the offence to be taken into account by the sentencing
court.
Item 2 of Schedule 8 will add a new factor to
the list of considerations in subsection 16A(2), which will require the
sentencing court to take into account whether the person’s standing in the
community was used to aid in the commission of the offence. If that is the
case, the court must regard it as aggravating the seriousness of the criminal
behaviour constituting the offence (proposed paragraph 16A(2)(ma)). This
amendment is intended to ‘capture scenarios where a person’s professional or
community standing is used as an opportunity for the offender to abuse
children’,[62]
including medical practitioners, celebrities and professional sportspeople.
Item 3 will insert proposed new subsection
16A(2AAA), which prescribes a specific sentencing factor relating to
rehabilitation that the court must have regard to when sentencing people for child
sex offences. The court must take the following matters into account:
- when making an order –whether to impose any conditions about
rehabilitation or treatment options (proposed paragraph 16A(2AAA)(a))
- in determining the length of any sentence or non-parole period—to
include sufficient time for the person to undertake a rehabilitation program (proposed
paragraph 16A(2AAA)(b)).
Increasingly there is evidence to suggest that the
recidivism of child sex offenders can be reduced by rehabilitation programs
within the prison environment:
Conventional wisdom has it that child sex offenders lurk
among us until caught, and that they can never be cured. But psychologists
around the world who have dedicated their careers to studying and treating
sexually abusive behaviours have discovered over decades of research that we
are only partly right.
While there is no pill that can cure child sex offenders,
there are therapeutic methods that can help prevent them from reoffending.
Corrections Victoria staff and psychologists who treat sex offenders in the
community say that therapeutic treatment can halve the rate of recidivism.[63]
The provision of resources and investment into research on
treatment programs is particularly important as more cases are brought to the
courts following the exposure of child sexual abuse through the Royal
Commission’s inquiries.
Aggravated sentencing factors for various sexual offences
against children (Schedule 9)
The Bill also introduces new aggravating factors that a
court must take into account when sentencing an offender for a relevant
offence. Items 3 and 4 in Schedule 9 will insert proposed new
sections 471.29A and 474.29AA into the Criminal Code. These are
mirror provisions that will apply when a court is sentencing an offender for an
offence under Subdivision C of Division 471 or Subdivision F of Division 474 of
the Criminal Code. (These subdivisions contain offences relating to the
use of a postal service or a carriage service involving sexual activity with a
child.) When determining the sentence for a relevant offence, the sentencing
court must consider:
(a) the age and maturity of the victim or the
intended victim of the offence
(b) if
the victim or intended victim of the offence was under 10 – that fact as a
reason for aggravating the seriousness of the criminal behaviour and
(c) the number of people
involved in the commission of the offence.
These matters are additional to other matters that the sentencing
court must consider, including those in section 16A of the Crimes Act.[64]
Minster Keenan stated at the introduction of the Bill that
‘these measures send a clear message—this government will not tolerate such
appalling and disgusting acts committed against children’.[65]
Presumption in favour of cumulative sentences for
Commonwealth child sex offenders (Schedule 10)
Schedule 10 will introduce a presumption in favour of
cumulative sentences where a person is being sentenced for multiple
Commonwealth chid sex offences or a combination of Commonwealth and state or
territory child sex offences. Section 19 of the Crimes Act deals with
the setting of cumulative, partly cumulative and concurrent sentences, but does
not specify when a particular approach is appropriate. The Act does not define
these terms but the Butterworths Concise Australian Legal Dictionary defines
them as follows:
- Cumulative
sentence: A punishment or term of imprisonment which commences at the
expiration of another punishment or term of imprisonment.
- Concurrent sentence: A sentence that is served at the same time as
another sentence.[66]
The Explanatory Memorandum describes the objective of the
presumption ‘is to act as a yardstick against which to examine a proposed
sentence of an offender for multiple child sex offences’.[67]
This Schedule takes a different approach from what was recommended by the Royal
Commission, which dealt with cumulative and concurrent sentencing, recommending
that:
State and territory governments should introduce legislation
to require sentencing courts, when setting a sentence in relation to child
sexual abuse offences involving multiple discrete episodes of offending and/or
where there are multiple victims, to indicate the sentence that would have been
imposed for each offence had separate sentences been imposed.[68]
Conditional release of offenders after conviction
(Schedule 11)
The Bill seeks to limit the
discretion of the sentencing judge, in addition to the prescription of minimum
penalties, by limiting the circumstances in which a judge may order the
immediate release of a person convicted of a Commonwealth child sex offence on
a recognizance release order. Section 19AC of the Crimes Act provides
that a court that imposes a sentence of imprisonment of three years or less on
a federal offender must generally make a recognizance release order in respect
of that sentence.[69]
(The court may decline to make a recognizance release order if it is satisfied
that it would not be appropriate to do so, having regard to the nature and
circumstances of the offence and the offender’s criminal history. In that case,
the court must state and record its reasons for declining to make a
recognizance release order.)[70]
A recognizance release order
is made under paragraph 20(1)(b) of the Crimes Act.[71]
That provision currently allows a sentencing court to sentence an offender to a
term of imprisonment and make an order directing the offender to be released, upon
giving security, either immediately or after he or she has served a specified
term of imprisonment. Under the current provision, the decision as to whether
to order release immediately (or not) is entirely at the discretion of the
sentencing court.
Item 1 of Schedule 11 will substitute existing 20(1)(b) of
the Crimes Act with a provision that will limit the court’s ability to order
the immediate release of an offender on a recognizance release order where at
least one of the offences for which the person is being sentenced is a Commonwealth
child sex offence. The court will only be able to order the immediate release
of such an offender in ‘exceptional circumstances’. The current unfettered
discretion of the court will remain in relation to offenders who are not
convicted of a child sex offence.
Together with the prescribed
minimum penalties in Schedule 6, the Bill is proposing to restrict the exercise
of discretion by the judiciary in sentencing child sex offenders, other than in
‘exceptional circumstances’. It is not immediately apparent what those
exceptional circumstances might be but could include the mental capacity of the
offender, including whether the offender suffers from an intellectual
disability. An additional sentencing option in such circumstances is provided
for by Schedule 12 of the Bill, which prescribes a sentencing alternative by
way of a ‘residential treatment order’.
The LCA is critical of this
Schedule, recommending that it be removed from the Bill:
... [M]aintaining unfettered judicial discretion as to how a
term of imprisonment should best be served is of paramount importance in these
types of cases. It is suggested that sentencing judges are well equipped and in
the best position to determine whether releasing an offender forthwith is
appropriate in the particular circumstance of an individual case.[72]
Where the court makes a
recognizance release order for a child sex offender (whether ordering immediate
release or release after serving a term of imprisonment) the order must, under proposed
subsection 20(1B) include conditions that require the offender to:
- be subject to the supervision of a probation officer
-
obey all reasonable directions of the probation officer
-
not travel interstate or overseas without the written permission of the
probation officer and
-
undertake such treatment or rehabilitation programs that the probation
officer reasonably directs.
Residential treatment orders for offenders suffering a
mental illness, intellectual disability (Schedule 12)
Subsection 20AB(1AA) of the Crimes
Act prescribes alternative non-custodial sentences that are frequently used
in state and territory jurisdictions, which may be imposed on federal offenders.
These include community correction orders, intensive correction orders, a drug
or alcohol treatment order or rehabilitative order. Item 1 of Schedule
12 proposes to add ‘residential treatment orders’ to allow the courts to have
the discretion to access such orders that have been designed to specifically
meet the needs of certain classes of offenders. This amendment is relevant to
all federal offenders, not only child sex offenders. The new subparagraph
follows from the residential treatment orders available in Victoria under
section 82AA of the Sentencing Act 1991 (Vic), which allows a sentencing court to order that
an offender be detained for a period of up to five years if the offender has
been convicted of a ‘serious offence’ (including murder and kidnapping) and
specified sexual assault offences. Such orders are intended to be applied to
offenders who have an intellectual disability.[73]
Maintaining the security of reports, documents and
information from being disclosed (Schedule 13)
Division 10 of the Part IB of the Crimes Act contains
miscellaneous provisions relating to the sentencing, imprisonment and release
of federal offenders.
The decision whether to release a federal offender on parole
at the end of their non-parole period is made by the Attorney-General or his or
her delegate (section 19AL). If the Attorney-General decides not to release an
offender on parole, the Attorney-General must give the offender written notice
of the refusal, which must include a statement of reasons (paragraph
19AL(2)(a)). This aims to provide the offender procedural fairness. Items 1
to 3 of Schedule 13 will amend subsection 19AL to clarify that the requirement
to provide reasons to an offender in the parole refusal notice is subject to proposed
section 22B.
Item 4 of Schedule 13 will insert proposed section
22B, which will provide that nothing in Part IB requires reports, documents
or information to be provided to a person if the Attorney-General considers
that such provision would be likely to prejudice national security. The
Explanatory Memorandum notes that this could be reports prepared by an
intelligence agency or corrective services agency, file notes or submissions to
the Attorney-General.[74]
Further:
... although this amendment limits the procedural fairness
afforded to federal offenders, it only does so to the extent necessary and
proportional to protect national security and the public interest.[75]
The application of this provision could result in an
offender having little, or no, substantive information to respond to when
refused parole, despite a record of good behaviour in prison. The Law Council
recommended that in national security sensitive cases, ‘the subject should be
provided sufficient information about the allegations against them to enable
effective instructions to be given in relation to those allegations. A special
advocate should also be appointed in such cases that can be privy to such
sensitive information’.[76]
Revocation of parole order or licence, ‘clean street time’
(Schedule 14)
The Bill will ensure that once an offender’s parole has
been revoked, they will serve a period of time in custody. Section 19AQ deals
with the automatic revocation of a federal offender’s parole or licence if they
are sentenced to a term of imprisonment of more than three months for a federal,
state or territory offence that they committed during the federal parole
period. Currently, in these circumstances the parole order or licence is
automatically revoked on the date of sentencing and the person becomes liable
to serve the part of the federal sentence that remained when they were released
on parole, reduced for ‘clean street’ time in accordance with the law of the relevant
state or territory (subsection 19AA(2)).
Proposed new section 19AQ will require the court,
when sentencing an offender for subsequent offences, to determine the time when
the parole order or licence is taken to be revoked by determining when the new
offence was committed. In addition, rather than applying state and territory
‘clean street’ time provisions, the court will now be required to apply
proposed paragraph 19AQ(4)(b), which allows the person’s sentence to be reduced
by the period between release on parole or licence and the time that the new
offence is taken to have been committed. The amendments will reduce the amount
of so called ‘clean street time’ that can be credited against the outstanding
sentence following commission of another offence.
Definition of child sexual abuse and other consequential
amendments (Schedule 15)
The Government proposes to repeal references to ‘child
pornography material’ and replace it with a broader definition of ‘child abuse
material’ across the Crimes Act, the Criminal Code, Customs
Act 1901 and the Telecommunications (Interception and Access) Act 1997,
for the reason:
... [a]ttaching the term “pornography” to this material proves
to be a barrier in conveying the seriousness and gravity of the offences
depicted in that material, as well as the harm faced by the children in that
material . The inference remains that “pornography” is associated with
consenting subjects, which is entirely inappropriate given this behaviour
involves the abuse and corruption of children.[77]
Prima facie this does not seem to raise significant
concerns. However, in one submission to the Senate Inquiry on the Bill, it was
deemed to be the ‘worst’ aspect of the Bill, with the submitter arguing that
there is a ‘very good reason for the distinction’:
The removal of the distinction should be scrapped. Treating
the two the same will inevitably lead to perverse and unjust outcomes. Whilst
there may be reasons for a presumption that “child abuse material” deserves a
stiff sentence, judges need the leeway to treat “mere” “child pornography” differently.
The difference in the harm caused in the creation of the two types of material
is drastic, and the law needs to reflect that.[78]
[1]. M
Dreyfus, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, House of Representatives, Debates,
(proof), 18 October 2017, p. 91.
[2]. C
O’Neil, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, House of Representatives, Debates,
(proof), 18 October 2017, p. 89.
[3]. Parliament
of Australia, ‘Crimes
Legislation Amendment (Sexual Crimes Against Children and Community Protection
Measures) Bill 2017 homepage’, Australian Parliament website.
[4]. Senate
Selection of Bills Committee, Report,
11, 2017, The Senate, Canberra, 14 September 2017, p. 6.
[5]. Convention
on the Rights of the Child, done in New York 20 November 1989, [1991]
ATS 4 (entered into force for Australia 16 January 1991); United
Nations Convention Against Transnational Organised Crime, done in New
York 15 November 2000, [2004] ATS 12 (entered into force for Australia 26 June
2004); Protocol
to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children, Supplementing the United Nations Convention Against Transnational
Organized Crime, done at New York on 15 November 2000, [2005] ATS 27
(entered into force for Australia 14 October 2005); International
Convention to Suppress the Slave Trade and Slavery, done in Geneva on 25 September 1926,
[1927] ATS 11 (entered into force for Australia 18 June 1927).
[6]. Optional
Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography, done in New York 25 May 2000,
[2007] ATS 6 (entered into force for Australia 8 February 2007).
[7]. Explanatory
Memorandum, Crimes Legislation Amendment (Sexual Crimes
Against Children and Community Protection Measures) Bill 2017, p. 7. The Constitutional system in Australia
enables the Executive Government to commit Australia to international treaties
and conventions at the international level. The External Affairs power in the Constitution
(section 51(xxix)) then enables Parliament to enact legislation that may
otherwise be outside its legislative power.
[8]. H
Boxall, AM Tomison and S Hulme, Historical
review of sexual offence and child sexual abuse legislation in Australia:
1788–2013, prepared by the Australian Institute of Criminology for the
Royal Commission into Institutional Responses to Child Sexual Abuse, AIC,
Canberra, 2014. The Commonwealth offences are outlined at pp. 92–95.
[9]. C
Bickers, ‘Derryn
Hinch defends choice to name paedophile cop in Parliament’, news.com.au,
13 September 2017.
[10]. Passports
Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017.
[11]. Attorney-General’s
Department, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 4 October 2017, pp. 2–3.
[12]. G
Thompson and MA Jolley, 'Unholy silence', Four Corners,
Australian Broadcasting Corporation (ABC), 2 July 2012.
[13]. J
Gillard (Prime Minister), Establishment
of Royal Commission Into child sexual abuse, media release, 12 November
2012.
[14]. Royal Commission into Institutional Responses to Child Sexual Abuse,
Criminal justice report, Sydney,
August 2017.
[15]. Royal Commission into Institutional Responses to Child Sexual Abuse
(Royal Commission), Report on Criminal Justice released,
media release, 14 August 2017.
[16]. Senate
Selection of Bills Committee, Report,
11, op. cit., p. 6.
[17]. Senate
Legal and Constitutional Affairs Committee, Crimes
Legislation Amendment (Sexual Crimes Against Children and Community Protection
Measures) Bill 2017 [Provisions], October 2017, pp. 29–31.
[18]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 6 October 2017, p. 14.
[19]. Senate
Legal and Constitutional Affairs Committee, Crimes
Legislation Amendment (Sexual Crimes Against Children and Community Protection
Measures) Bill 2017 [Provisions], October 2017, pp. 33–36.
[20]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 12, 2017, The Senate, 18 October 2017, p. 7.
[21]. Ibid.,
pp. 10–16.
[22]. Senate
Legal and Constitutional Affairs Committee, Crimes
Legislation Amendment (Sexual Crimes Against Children and Community Protection
Measures) Bill 2017 [Provisions], October 2017, p. 35.
[23]. Ibid., p.
33.
[24]. M
Dreyfus, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, op. cit., p. 91.
[25]. C
O’Neil, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, op. cit., p. 89.
[26]. Law Council
of Australia (LCA), Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 6 October 2017, p. 6.
[27]. Ibid., p.
5.
[28]. Ibid., pp.
12–13.
[29]. Ibid.,
p. 10.
[30]. L Bartels, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 28 September 2017, p. 2.
[31]. Uniting
Church of Australia, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 29 September 2017, p. 1.
[32]. See the
Inquiry’s Submissions
page.
[33]. Attorney-General’s
Department, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 4 October 2017.
[34]. Explanatory
Memorandum, op. cit., p. 4.
[35]. Ibid.
[36]. The
Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory
Memorandum to the Bill.
[37]. Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography, done in New York 25 May 2000,
[2007] ATS 6 (entered into force for Australia 8 February 2007).
[38]. Explanatory
Memorandum, op. cit., p. 5.
[39]. Parliamentary
Joint Committee on Human Rights (PJCHR), Report,
11, 2017, 17 October2017, pp.2–15.
[40]. Explanatory
Memorandum, op. cit., p. 17.
[41]. Ibid.,
p. 9.
[42]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, House of Representatives, Debates,
13 September 2017, p. 10175.
[43]. Ibid.
[44]. Explanatory
Memorandum, op. cit., p. 18.
[45]. Ibid.
[46]. Royal Commission into Institutional Responses to Child Sexual Abuse,
Criminal justice report, op. cit., recommendation
9(c), p. 117. See also recommendation 9(h).
[47]. Explanatory
Memorandum, op. cit., p. 19.
[48]. Australian
Law Reform Commission (ALRC), Uniform
evidence law, ALRC report, 102, Sydney, 2005, para. 5.74.
[49]. The
provision follows section 272.8, prohibiting sexual intercourse with a child
outside Australia. The Law Council of Australia (LCA) has further suggested
that a similar amendment to that proposed by item 1 of Schedule 4 should be
made to section 272.8 of the Criminal Code for consistency. See LCA, Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], op. cit., p. 8.
[50]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, op. cit., p. 10175.
[51]. This
is necessary because of the undercover police work that is undertaken online in
child sex cases. See, for example, this report on Task
Force Argos, an ongoing investigation of online child exploitation and
abuse undertaken by the Queensland Police Service.
[52]. Section
474.22 sets out an offence for using a carriage service for child abuse
material and section 474.23 sets out an offence for possessing, controlling,
producing, supplying or obtaining child abuse material for use through a
carriage service.
[53]. Explanatory
Memorandum, op. cit., p. 36.
[54]. L
Bartels, Submission
to Senate Legal and Constitutional Affairs Committee, Inquiry into the
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017 [Provisions], 28 September 2017, p. 3.
[55]. Attorney-General’s
Department, Submission,
Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes
Legislation Amendment (Sexual Crimes Against Children and Community Protection
Measures) Bill 2017 [Provisions], Annexure B.
[56]. Commonwealth
Sentencing Database, (subscription only).
[57]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, op. cit.
[58]. LCA,
Mandatory
sentencing, Policy discussion paper, May 2014, p. 9.
[59]. LCA, Submission to Senate Legal and
Constitutional Affairs Committee, Inquiry into the Crimes Legislation
Amendment (Sexual Crimes Against Children and Community Protection Measures)
Bill 2017 [Provision], 6 October 2017, p. 10.
[60]. Explanatory
Memorandum, op. cit., p. 41.
[61]. Explanatory Memorandum, op. cit., p. 10.
[62]. Ibid., p. 44.
[63]. J Lee, ‘Can
a child sexual offender be cured?’, The Age, (online edition), 17
June 2017.
[64]. Proposed
subsections 471.29A(3) and 474.29AA(3).
[65]. M
Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Bill 2017’, op. cit., p. 10175.
[66]. As
referenced by the National Judicial College of Australia ‘Cumulative
and concurrent sentences’, NJCA website, 24 April 2014.
[67]. Explanatory Memorandum, op. cit., p. 48.
[68]. Royal Commission into Institutional Responses to Child Sexual Abuse,
Criminal justice report, op. cit., Recommendation
75, p. 100.
[69]. The
court is only permitted to impose a non-parole period when sentencing a federal
offender to more than three years imprisonment (section 19AB of the Crimes
Act).
[70]. Crimes
Act, subsection 19AC(4
[71]. See
definition of ‘recognizance release order’ in subsection 16(1) of the Crimes
Act.
[72]. LCA,
Submission,
op. cit., p.18.
[73]. Victorian
sentencing manual, ‘Residential
treatment order’, Judicial College of Victoria, Melbourne, updated 3 March 2017.
[74]. Explanatory
Memorandum, op. cit., p. 51.
[75]. Explanatory
Memorandum, op. cit., p. 51.
[76]. LCA,
Submission,
op. cit., p. 28. Lucy Line and David Plater explain: ‘Special advocates are
also known as special counsel. They are appointed as representatives of an
accused’s interests, but are not representatives of the accused in the same
fulsome sense as the accused’s own solicitors and counsel. The relationship
between the special advocate and the accused is quite different to that between
the accused and his or her own lawyer. The special advocate cannot pass any
sensitive information onto the accused and is not responsible to, and cannot
take instructions from the accused’. L Line and D Plater, 'Police,
prosecutors and ex parte public interest immunity claims: the use of special
advocates in Australia', University of Tasmania Law Review,
33(2), 2014, p. 255. Further note, the authors were unable to locate an
Australian criminal trial in which a special advocate had been appointed.
[77]. Explanatory
Memorandum, op. cit., p. 56.
[78]. E
Bromberg, Submission,
to Senate Legal and Constitutional Affairs Committee, Inquiry
into the Crimes Legislation Amendment (Sexual Crimes Against Children and
Community Protection Measures) Bill 2017 [Provisions], p. 1.
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