The Australian Greens thank everyone who made a public submission and/or public representation to this inquiry.
The Australian Greens generally support the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, and the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (the Bill), which seeks to implement some of these recommendations.
The Australian Greens welcome the Government’s decision to remove mandatory sentencing from the Bill.
However, the Australian Greens hold several concerns regarding definitions in, and scope of, the Bill. These include substantive concerns regarding legal professional privilege, and privilege against self-incrimination.
As noted by the Law Council of Australia, the privilege against self-incrimination is recognised as a fundamental human right. This right is abrogated in s 273B.5(5) of the Bill. As such, the Australian Greens support the Law Council of Australia’s recommendation on this matter.
A derivative use immunity should be inserted at proposed section 273B.9 to cover material obtained as a result of answers given in accordance with questioning under proposed subsection 273B.5(5).
There is uncertainty regarding s 273B.9, and whether this section would deny legal professional privilege in certain circumstances. As legal professional privilege is a fundamental common law right in relation to legal advice and litigation in Australia, it must be clearly protected in this bill.
The Bill be amended to clearly state that it is not an offence under the relevant provisions for a lawyer to fail to disclose information, which is the subject of legal professional privilege.
The explanatory memorandum identifies a reversing of the evidential burden of proof in this Bill in s 273B.5, and defends this reversal of a key principle in common law by arguing that the information to be proven would be peculiarly within the knowledge of the defendant and significantly more difficult and costly for the prosecution to disprove than for the defendant to establish. The Standing Committee however said it was not apparent that each of the matters would be peculiarly within the knowledge of the defendant. Regardless, the Australian Greens believe the principle of evidential burden of proof should always be protected in Australian law.
The offence specific defences listed in subsection 273B.5(4) be amended so that the matters listed in paragraphs (a) to (d) be included as elements of the relevant offences.
The recommendation of the Australian Greens is that the bill be passed with the above amendments made.