This chapter outlines the issues raised by submissions, and then
provides the committee's view on the bill. Please note that, apart from
outlining the general support expressed for the bill by submitters, this
chapter only considers matters that were explicitly addressed in submissions,
Schedule 1—Revocation of parole order or licence to protect
Schedule 2—Use of video recordings and Schedule 3–
Cross-examination of vulnerable persons at committal proceedings;
Schedule 4—Strengthening child sex offences;
Schedule 5—Increased penalties;
Schedule 6—Minimum sentences;
Presumptive measures contained in schedules 7, 10 and 11;
Schedule 8—Matters court has regard to when passing sentence etc.;
Schedule 11—Conditional release of offenders after conviction;
Schedule 12—Additional sentencing alternatives;
Schedule 13—Release on parole;
Schedule 14—Revocation of parole order or licence;
Schedule 15—Expanding the meaning of child abuse material and
other consequential amendments; and
Other matters raised by submitters.
General support for the bill
The submissions received by the committee overwhelmingly supported the
bill's general intention to strengthen Australia's framework for protecting the
community from child sex offenders, as well as its focus on improving relevant
legislation in light of recent technological advances.
For example, the Uniting Church noted that the broader offences under
the new provisions would provide a real deterrent for many potential
The risk of getting
caught and the public shame that follows, with loss of relationships and
employment in addition to any length of time in prison, is far more likely to
deter many offenders than a the threat of a longer prison term if the would-be
offender believes their chance of getting caught is small.
Submitters also supported tougher penalties for new and some existing
For example, Collective Shout suggested that:
penalties, cumulative sentences and actual terms of imprisonment are, we
believe, appropriate for the nature of online child sexual exploitation crimes.
International reports indicate that some offenders believe, or at least claim
to believe, that what they are doing is not so bad.
The Carly Ryan Foundation submitted that it considered the bill would be
...proactive and vital
update to the current legislation. The Crimes Legislation Amendment (Sexual
Crimes Against Children and Community Protection Measures) Bill 2017 is a
welcomed update providing practical solutions, strengthening the current
legislation, increasing penalties, enforcing minimum sentences, preventing
cross-examination of vulnerable persons and revoking parole orders in order to
protect the Australian community.
General concerns raised about the bill
The Law Council of Australia (Law Council) expressed concern that the
bill has been introduced before the publication of the Final Report of the
Royal Commission into Institutional Responses to Child Sexual Abuse (Royal
Commission), which is expected in December 2017, as well as the publication of
the Australian Law Reform Commission's (ALRC) inquiry into Incarceration Rates
of Aboriginal and Torres Strait Islander peoples.
The Law Council noted that it is unclear whether the provisions of the
bill would be consistent with the findings of the Royal Commission and the ALRC.
Given this, it recommended that the bill not be enacted 'prior to [the]
consideration of the Australian Government and Parliament of these reports'.
The Attorney-General's Department submitted that the bill was entirely
consistent with the work of both the Royal Commission, as well as ongoing collaborative
work between the Commonwealth and jurisdictions on detecting and reducing child
Schedule 1—Revocation of parole order or licence to protect safety
Currently, before a parole order or license is revoked, a person must be
notified of the specific conditions they are alleged to have breached, unless
certain circumstances apply, and given 14 days to respond to allegations. The
Explanatory Memorandum states the bill would amend arrangements to
...provide that a
federal offender's parole or licence may be revoked without notice if doing so
is necessary to ensure the safety and protection of the community or of another
Including this in the
current list of exceptions will ensure that if the Attorney-General or their
delegate becomes aware that a person who has been released into the community
on parole or licence poses a threat to the safety of the community or to
another person, that person can be taken into custody immediately.
The bill also provides that parole orders and licenses would be subject
to this amendment even if they have been made or granted before the bill
Some submitters raised concerns with this proposed amendment. Associate
Professor Lorana Bartels questioned whether the amendment was 'objectionable on
the grounds of procedural fairness'. She recommended that the Commonwealth
reconsider the ALRC's 2006 recommendation to introduce a federal parole
authority that was independent of government.
The Law Council voiced similar concerns that the proposal was contrary
to principles of procedural fairness and the ALRC recommendations of 2006. It
argued that proposed paragraph 19AU(3)(ba) of the bill should be removed from
the bill completely–and, failing that, s:
parole authority should have the ability 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 subject to the ability for the
person to contest the revocation.
The Attorney-General's Department submitted that the proposed amendments
would maintain procedural fairness, as:
parole has been revoked and the offender remanded in custody, that offender
retains the opportunity to make a written submission to the Attorney-General as
to why the parole order or licence should not be revoked. If the
Attorney-General is satisfied of those reasons the offender would be
immediately released from custody.
Schedule 2—Use of video recordings and Schedule 3– Cross-examination of
vulnerable persons at committal proceedings
Schedules 2 and 3 would make amendments to protect vulnerable witnesses.
such as children, giving evidence in particular criminal proceedings. This
includes Commonwealth child sex offences, as well as human trafficking and
The Attorney-General's Department summed up the effects of these proposed
The Bill removes the
requirement for vulnerable witnesses to be available to be cross-examined at
committal proceedings. There is currently no restriction on whether a
vulnerable witness can be cross-examined at committal proceedings (or
proceedings of a similar kind) and few restrictions on the scope of questioning
permitted in committal proceedings.
cross-examination at committal proceedings or proceedings of a similar kind,
vulnerable witnesses will be spared an additional risk of re-traumatisation.
Under the current legislation, vulnerable witnesses may be required to give
evidence twice and often in distressing, combative environments. The measures
will contribute to streamlining criminal justice processes by ensuring
cross-examination is reserved for trials only, and not committal proceedings or
proceedings of a similar kind.
The Bill also removes
the requirement for the court to grant leave before admitting a video recording
of an interview of a vulnerable witness as evidence in chief. These measures will
bring the Commonwealth broadly into line with the practice in other Australian
states and territories.
The Explanatory Memorandum states that, currently, the court's leave
must be given for a video recording to be admitted as evidence in chief for a
vulnerable witness, and stipulates that any such recording is conducted by a
constable or other specified person.
Schedule 2, which addresses the use of video recordings, would remove
the requirement to grant leave before a video recording of a vulnerable witness
is admitted as evidence in chief, but maintain the stipulation that it be
conducted by a constable or specified person.
These provisions would only apply to proceedings that are begun on or
after the commencement of the bill.
The Explanatory Memorandum notes:
The evidence in chief
interviews remain subject to the rules of evidence and parts may be ruled
inadmissible, thereby protecting the rights of the accused person. There are
sufficient safeguards in place that the defence will not be unreasonably
disadvantaged by removing the requirement in 15YM to seek leave. On balance,
any disadvantages to the defence are outweighed by the uncertainty, delay and
inefficiency caused by the requirement to seek leave.
Schedule 3, which deals with cross-examination of vulnerable persons at
committal proceedings, would amend the Crimes Act by removing the requirement
for vulnerable witnesses to be available to give evidence at committal
proceedings. The Explanatory Memorandum explains that this would spare
vulnerable witnesses from the risk of re-traumatisation, and streamline
criminal justice proceedings by ensuring cross-examination is reserved for
trials, rather than committal hearings.
Some submissions supported these proposed amendments as they would
complement the approach already adopted by Australian states and territories. Moreover, the
Law Council noted that removing the requirement for leave to be sought for
vulnerable witnesses to give evidence was 'consistent with international best
practice' and in-line with the Commonwealth's victim-centred approach to
combatting human trafficking and slavery.
However, the Law Council also raised a number of concerns about the
effect of the changed arrangements on prosecutions, including on the ability of
the defence to mount its case:
impacting the ability of the defence to prepare its cross examination of
witnesses, that video technology lacks the immediacy and persuasiveness of a
witness' live testimony, and technological issues.
Given this, the Law Council observed that it could be useful for
relevant participants in the criminal justice system to be educated about the
legislative requirements authorising the admission of pre-recorded evidence, as
well as training in interviewing vulnerable witnesses and pre-recording
Regarding schedule 3, the Law Council did not support a complete ban on
the appearance of vulnerable witnesses at committal hearings, arguing that such
appearances could streamline trial processes significantly, which could
actually benefit victims. It advised that the Commonwealth should consider ALRC
...State and Territory
legislation should prohibit any child and any adult complainant, unless there
are special or prescribed reasons, from being required to attend to give
evidence at committal hearings.
In this light, the Law Council recommended that:
The proposed ban on
cross-examination of vulnerable witnesses should be removed from the Bill and
replaced by an approach which prevents cross-examination of vulnerable
witnesses unless 'exceptional circumstances' can be demonstrated and for a
defined set of offences only (e.g. child sex offences).
Schedule 4—Strengthening child sex offences
Schedule 4 of the bill would make amendments to strengthen penalties for
existing child sex offences. It would also introduce new offences to
criminalise emerging forms of child sexual abuse, both in the nature of the
offences and in new ways of distributing child abuse material online, including
through dark web host sites and through real time live streaming services.
These include provisions to amend the Criminal Code to:
Clarify the definition of 'engage in sexual activity' for child
sexual abuse cases (Item 1);
Introduce new aggravated offences, including regarding committing
offences against a child with a mental impairment, or where a person is in a
position of trust or authority in relation to a child; and where a child is
subjected to 'cruel, inhuman or degrading treatment' or where a child 'dies as
a result of physical harm' in connection with sexual abuse (Item 3);
Criminalise 'using postal or similar services to 'groom' another
person to make it easier to procure persons under 16 years of age for sexual
activity', which complements existing grooming offences set out in 471.24 and
474.25 of the Criminal Code (Item 5);
Allow law enforcement agencies to gather evidence admissible to
courts using 'fictitious persons' (Items 11 and 12); and
Criminalise 'the provision of an electronic service with the
intention that the service will facilitate the commission of an offence against
sections 474.22 (using a carriage service for child abuse material) or 474.23
(possessing, controlling, producing, supplying or obtaining child abuse
material for use through a carriage service) of the Criminal Code' (Item 20).
These provisions were generally supported by submitters. In particular, some
submissions drew attention to the value of introducing or strengthening
provisions designed to crack down on the use of internet carriage services to
distribute child abuse material, including live streamed child abuse overseas
that can be accessed online, which will complement some new measures introduced
in Australian jurisdictions.
As the schedule contains 40 items, the following section will confine
comments to areas in which concerns were raised by submitters.
definition of 'engage in sexual activity' (Item 1)
Item 1 inserts a note that clarifies the definition of 'engage in sexual
activity' in the Crimes Act, to include:
...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
The Law Council and Anti-Slavery Australia both recommended that
this definition also be reflected in the Criminal Code subsection 272.8, Sexual
Intercourse with a child outside Australia to capture some child sex
offences that were broadcast or live-streamed online. Anti-Slavery Australia
commented that this minor addition to the bill would:
...ensure that an
Australian directing and engaging in live-streamed, serious sexual abuse of a
child overseas, is properly characterised as culpable for the significant harm
caused to the child.
New Aggravated offences
Regarding the introduction of new aggravated offences into the Criminal
Code, the Law Council stated that, while it did not oppose the amendment, 'most
of these factors can already be taken into account as aggravating factors in
sentencing in a federal context.
It noted this should be considered in relation to the increased penalties and
mandatory sentences included under schedules 5 and 6 of the bill:
...given that proposed
and existing child sex offences are so broadly framed with potential
aggravating factors, retaining judicial discretion in this area is critical to
ensure appropriate sentences are issued that reflect the culpability of the
conduct in question.
Schedule 5—Increased penalties
Schedule 5 of the bill introduces measures to increase the
maximum penalties for certain Commonwealth child sex offences and for breach of
the obligation on internet service providers and internet content hosts to
report child abuse material to police.
The changes to sentencing are set out in a table at Appendix 1 of this report.
The Attorney-General's Department provided an outline of changes to
penalties for offenders:
The Bill increases
the maximum penalties for offences under the Criminal Code relating to the
sexual abuse of children outside Australia and offences committed through the
use of online and postal services. The penalties for sections 272.9(1),
272.9(2), 474.25A (1) and 474.25(2) (sexual activity other than sexual
intercourse) will now attract a maximum penalty of 18 years. The proposed
maximum penalty for these offences reflects the relative seriousness of
conduct. The penalties differentiate between conduct that is preparatory to
sexual activity (such as procuring and grooming), conduct where an offender
engages in sexual activity with a child (including activity of a sexual or
indecent nature, activity that does not require physical contact between
people, and online sexual activity) and conduct which requires the offender to
have sexual intercourse through physical contact with a child (including
penetration and oral intercourse). Offences preparatory to engaging in sexual
activity with a child (such as grooming and procuring) attracts a maximum
penalty of 15 years' imprisonment for; sexual activity that does not involve
sexual intercourse attracts a maximum of 18 years imprisonment; and engaging in
sexual intercourse with a child (section 272.8) attracts maximum penalty of
20 years' imprisonment.
The Explanatory Memorandum explains that increased penalty for grooming
growing body of evidence that demonstrates the extent of harm 'grooming' has on
a child victim. 'Grooming' is a complex behaviour used by perpetrators to gain
access to victims through deception and manipulation. Perpetrators often employ
'grooming' behaviours to both commit and conceal further offending against
children, including offences involving sexual contact with the victim. The
impact of 'grooming' can be damaging and lifelong in its effect, likely because
in establishing trust and normalising sexually harmful behaviour (as part of
'grooming') the perpetrator impacts the child victim's psychosocial
Under item 7 of schedule 5, the bill also toughens penalties for
internet service providers that do not report child abuse material to the
police appropriately, including providing for prosecution. According to the
The Bill also
increases the maximum penalty for offences committed by internet service
providers that fail to report child abuse material to the Australian Federal
Police when the service provider becomes aware that the service provided can be
used to access child abuse material. This offence allows for prosecution where
service providers do not cooperate with police to identify child abuse
Associate Professor Lorana Bartels noted opposition to the amendments:
increases to sentences would have disproportionate impacts, given the current
legislative maximum sentences which they seek to amend. Specifically, the Bill
proposes to increase the maximum penalties for a range of offences by three
years. This does not appear to be done in any principled way with respect to
the existing penalties...
If the objective of
the minimum sentences is to promote consistency, then the proposed model is
unlikely to achieve this, given that it relates only to the 'head' sentence and
not the non-parole period...There will therefore be the potential for reduced consistency, given the lack of any relationship (whether set by
Parliament or court practice) between the head sentence and non-parole which
would ensue following the proposed amendments.
While the Law Council supported 'a penalty system that reflects the
seriousness of the conduct concerned', it considered that the justification for
increases to these sentences had not been sufficiently set out in the bill and
Explanatory Memorandum, and so recommended:
There should be a
review of the proposed three year increase in maximum penalties, and if
justified, the Explanatory Memorandum should more clearly state why a three
year increase in maximum penalties has been chosen.
Schedule 6—Minimum sentences
Schedule 6 would insert mandatory minimum sentences for:
...offences relating to
the use of a carriage service or postal service, and offences relating to the
sexual abuse of children overseas. Mandatory minimum penalties will also apply
to child sex offenders previously convicted of a separate child sex offence
(including state and territory offences) (repeat offenders). This measure is
designed to reflect the risk that repeat offenders pose to community safety.
On this, the Attorney-General's Department submitted that:
introduction of mandatory minimum sentences and increased penalties for child
sex offences reflect the significant threat that the offenders pose to
community safety and the significant, long term harm to children.
Some submitters supported these amendments, on the grounds that this
ensure offenders receive sentences that reflect the seriousness
and gravity of their crimes;
serve as a deterrent to potential offenders; and
work to address 'weak sentencing in past cases' including of
online, non-contact abuse of children.
However, other submitters raised general concerns relating to mandatory
sentences in general, as well as specifically for sex offences. For example, the Law
Council questioned the underlying principle of instating mandatory minimum
sentences, including the limits this would place on judicial discretion and
...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
[under the International Covenant on
Civil and Political Rights (ICCPR)].
Associate Professor Lorana Bartels expanded on these themes in her
submission, commenting that:
when presented with prescribed mandatory sentences, are unable to apply the
generally accepted sentencing principles of proportionality, parsimony, and
totality. Accordingly, judicial discretion and independence, the separation of
powers, and the rule of law are undermined. Discretion is also transferred to
other, less transparent, parts of the criminal justice system. At the same
time, there is little incentive for defendants to cooperate with police, or to
plead guilty, thereby increasing workloads, delays, costs, and adverse
experiences for victims. In court, juries may be reluctant to convict, knowing
the minimum sentence; that is, they may be unwilling to be a party to a
guaranteed outcome. In addition, these laws arguably violate international law;
indeed, the Law Council of Australia (2014) has suggested that such laws may
breach the prohibition against arbitrary detention under Article 9 of the
[ICCPR] as well as the right to a fair trial and the provision that prison
sentences must, in effect, be subject to appeal (Article 14 ICCPR).
Regarding mandatory sentences for sex offences more specifically,
Anti-Slavery Australia encouraged the Commonwealth to undertake more
The introduction of a
mandatory minimum custodial sentence will not reflect the spectrum of child
exploitation material offending. This spectrum is evidenced by the
categorisation system used in Australia, the Child Exploitation Tracking System
('CETS') Scale, used in the Australian National Victim Image Library (ANVIL). The
scale categories child exploitation material from Level 1, depictions of
children with no sexual activity to Level 5, which involves sadism, bestiality,
humiliation or child abuse.
Moreover, Anti-Slavery Australia noted this could potentially remove an
incentive for offenders to cooperate with law enforcement agencies in return
for more lenient sentences:
custodial sentences may reduce the incentive for defendants to assist police in
ongoing investigations. This may be particularly damaging to police
investigations concerning online child exploitation, as defendants have no
incentive to voluntarily provide passwords to encrypted devices and systems.
The Law Council raised significant concerns about the potential for the
proposed amendments to inadvertently capture some normal and legal conduct that
would attract penalties that were unjust and too harsh. This could include
courts handing down mandatory minimum penalties for consensual activities
between individuals in a relationship where one was over 18 and the other was
underage (as set out in the table below), It commented that the bill may
penalty measures which may apply to conduct between youths that may be common
and normally permitted under State law. That is, normal young adult behaviours
are criminalised. The age of consent also varies and so the conduct may be
strictly unlawful and subject to statutory absence of consent provisions,
however, that does not make it a case for the imposition of mandatory
sentences. This has the potential to create significant unjustified unfairness
without achieving the stated aims of deterring offenders or instituting
appropriate penalty regimes.
Table 1: Potential examples of the unjust application in the current Bill
of potential conduct caught by the offence
time offences – section 16AAA
272.8(1) – sexual intercourse with child outside Australia
||On a scout's
trip to New Zealand, a 18 year old student has sex with his 15 year old Year
272.9(1) – sexual activity (other than sexual intercourse) with child outside
||On a holiday
overseas between two families, an 18 year old and 15 year old commence a
romantic relationship and they touch each other.
474.25A(1) – using a carriage service for sexual activity with person under
16 years of age – engaging in sexual activity with child using a carriage
||An 18 year old
and a 15 year old exchange images and sexual stories on Snapchat. An 18 year old
and a 15 year old engage in sexual activity using FaceTime.
474.25A(2) – using a carriage service for sexual activity with person under
16 years of age – causing child to engage in sexual activity with another
||An 18 year old
text messages her 15 year old friend encouraging him to send an intimate
image to his 18 year old girlfriend.
or subsequent offence – section 16AAB
474.27A –Using a carriage service to transmit indecent communication to
person under 16 years of age
||An 18 year old
boy and a 15 year old girl in a relationship and constantly exchange intimate
images. The boy has previously been convicted for a child sexual abuse
The Law Council also highlighted that the age of consent differed across
Australian jurisdictions (particularly South Australia and Tasmania), and that:
The potential for
unfairness to arise in the context of the [examples provided of potential]
child sex offences when combined with mandatory minimum penalties highlights
the importance of retaining judicial discretion in such cases rather than
referring such discretion to law enforcement and the prosecutorial authorities.
The Law Council raised a number of other concerns with mandatory
sentencing, including that it may result in:
Unjust, harsh or disproportionate sentences in general, an a
disproportionate impact on marginalised groups in particular, including
'indigenous peoples, young adults, juveniles, persons with a mental illness or
cognitive impairment and the impoverished';
Worse rehabilitation outcomes and increased re-offending rates
An undermining of community confidence in the judiciary and
criminal justice system;
Inconsistent sentencing outcomes, including through more
discretionary powers given to law enforcement and prosecutors; and
Increased costs to the government and community through higher
rates of incarceration and increased burden on the criminal justice system.
The Law Council recommended that the mandatory penalties be removed from
the bill entirely. However, should the bill proceed, they advised it should be
amended to 'allow the court full discretion in cases of individuals with
significant cognitive impairment', as has happened ' in other legislation, for
example, in sections 25A and 25B of the Crimes Act 1900 (NSW)–the 'one punch'
laws and latest mandatory minimum sentencing legislation in NSW). Excluding sentencing
discretion in such cases is manifestly unjust'.
In its submission, the Attorney-General's Department addressed some of
the concerns of submitters, noting that under the provisions of the bill:
Courts will retain
appropriate discretion in determining sentences while still observing relevant
statutory requirements and sentencing principles. Courts will be able to
exercise discretion to:
reduce the mandatory minimum penalty on the basis of a guilty
reduce the mandatory minimum penalty on the basis of an
offender's cooperation with law enforcement, and
determine the appropriate non-parole period for an offender.
The mandatory minimum
penalties will not apply to people under the age of 18 when the relevant
offence was committed while they were under the age of 18.
Moreover, the committee notes that the Explanatory Memorandum
The Bill recognises
the value of a guilty plea and cooperation with law enforcement. Guilty pleas
are crucial to provide for a more efficient and effective criminal justice
system and to reduce impacts on witnesses and victims.
The bill introduces a number of presumptive measures that attracted
comment from submitters, which this section discusses in turn:
Against bail (schedule 7);
In favour of cumulative sentences (schedule 10); and
In favour of actual terms of imprisonment (schedule 11).
These measures were all supported by Collective Shout 'as deterrents and
as appropriate for the gravity of the crime'.
The bill would insert a presumption against bail into the Crimes Act for
certain child sex offenders, which is designed to protect the community from
offenders while they await trial and sentencing.
The Law Council argued that this presumption would be contrary to the
'long held presumption in Australian law in favour of bail' and inconsistent
with the presumption of innocence. It noted that this may introduce be a
further conflict with Australia's obligations under the ICCPR, if enacted. The Law
Council recommended that this presumption be removed from the bill.
On this amendment, the Attorney-General's Department noted:
The presumption is
reasonable and proportionate as it applies only to the most serious child sex
offences and in circumstances where an offender would be facing a mandatory
minimum penalty if convicted on a second or subsequent offence. The presumption
is rebuttable and allows for judicial discretion in determining whether the
risk to the community of a person being released on bail can be mitigated
through appropriate bail conditions.
The bill would insert a presumption in favour of cumulative sentencing
in the Crimes Act. The Explanatory Memorandum states that this would:
...only [operate] where
a person is being sentenced for multiple Commonwealth child sex offences or
Commonwealth child sex offences in addition to a state or territory registrable
child sex offence.
The Attorney-General's Department drew out the ramifications of this
The presumption in
favour of cumulative sentencing will require that, when sentencing an offender
for a Commonwealth child sex offence, a court must not make an order that has
the effect that a term of imprisonment for that offence would be served partly
cumulatively, or concurrently, with an uncompleted term of imprisonment.
The Law Council was concerned this may restrict judicial discretion 'to
some extent', and that the presumption was 'somewhat paradoxical and its
purpose unclear'. Moreover, it considered it could:
...lead to unjust and
unfair outcomes. This is particularly so given that there is significant
overlap in the both State/Territory and Commonwealth charges being laid in
child sexual abuse cases where offences will often have different maximum
penalties. The presumption is likely to lead to significant legal challenges
and delays in the courts.
On this, the Attorney-General's Department submitted:
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 to ensure that the
effective sentence represents a tougher response to the objective seriousness
of the sexual abuse of children. It benefits circumstances such as where
offences are committed against separate victims over an extended period of
Discretion is still
retained for a court to consider the outcome for all the offences in totality
and, if appropriately satisfied, order the sentence in a different manner,
provided that the sentence overall is still of an appropriate severity. In
these circumstances, the new measures will require the court to provide reasons
or deviating from the presumption in favour of cumulative sentencing.
release of offenders after conviction
The bill would introduce a requirement that a child sex offender serve
an actual term of imprisonment unless there are exceptional circumstances that
justify the offender being released immediately on a recognizance order. The
Explanatory Memorandum states this amendment is 'intended to ensure that all
offenders convicted of Commonwealth child sex offences serve a period of
imprisonment that is not suspended'.
The Law Council argued that this provision should be removed as:
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
circumstances of an individual case.
To support this, the Law Council submitted that suspended sentences
be an effective deterrent to recidivism;
protect certain offenders from the 'corrupting influence of
serve as a symbolic effect, allowing offenders to recognise the
seriousness of their offence;
reduce the prison population, and thus reduce overcrowding of
allow offenders to maintain their links to family and community,
helping them to avoid reoffending and minimise disruption to their family,
accommodation and employment.
Schedule 8–Matters to which a court has regard when passing sentence etc.
Schedule 8 would introduce general sentencing factors to which the court
must have regard when sentencing a federal offender. The Law Council supported
these amendments in general, but noted that the introduction of:
...a new sentencing
consideration whether the person's standing in the community was used to aid in
the commission of the offence. Where this is the case it is to be taken as a
reason for aggravating the seriousness of the criminal behaviour to which the
It is intended that
this will capture scenarios where a person's professional or community standing
is used as an opportunity for the offender to abuse children. For example, this
would cover a medical professional using their professional standing as a
'medical practitioner' or a person using 'celebrity' status to create
opportunities to sexually abuse children.
The Law Council noted this amendment 'does not expressly state that it
is confined to sexual offences or situations where children might be abused'
and recommended that:
The provision should
expressly state that this amendment relates to child sex offences, in order to
give effect to the stated aims of the amendment and to highlight its intended
Additionally, the Law Council noted that schedule 8 would require a
court to take into account certain rehabilitation considerations when
sentencing, including an offenders prospects of rehabilitation, and questioned whether
it would be appropriate for a court to make orders imposing conditions
regarding rehabilitation or treatment options. On this, the Law Council
commented that the provision should be removed from the bill as:
...it is not clear how
a court will practically be able to comply with the new requirement unless it
conducts inquiries into rehabilitation options for a particular offender.
Further, the Law Council is concerned that there are currently not enough
rehabilitation places due to resourcing constraints. There are often
rehabilitation waiting lists for people to undertake programs. For less serious
offences and where there is overcrowding in prisons, offenders may be released
on parole and await the opportunity to undertake a rehabilitation program. This
amendment has not taken into account the reality that there may be no access to
such programs or that the offender may not in fact be eligible for programs.
There may also not be juvenile sex offender programs in place so there may be a
risk that a child does an adult program in jail. This may impact on the ability
of this measure to be effectively implemented and may also result in
disproportionate sentences. That is, sentences that are longer than necessary
to address the conduct and the objective of protecting the community.
Schedule 11—Conditional release of offenders after conviction
As well as the introduction of presumptive measures discussed
above, item 3 of Schedule 11 would amend the Crimes Act by imposing certain
requirements on Commonwealth sex offenders under recognizance release orders,
including that during the specified period the offender will:
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.
The Explanatory Memorandum notes that under this provision, the
directions of a probation officer must be 'reasonable'. The Law Council
recommended that this provision be removed as:
The level of
supervision permitted by the probation officer does not appear to be set out
and is unclear. It is also not clear why this factor is needed.
Schedule 12—Additional sentencing alternatives
Schedule 12 would amend the Crimes Act to include 'residential treatment
orders' as a sentencing alternative for courts. The Explanatory Memorandum
The new subparagraph
is intended to capture the residential treatment order available under section
82AA of the Sentencing Act 1991 (Vic), as well as any similar orders
that may exist or be enacted in other states and territories. It is appropriate
that courts have the discretion to access such orders that have been designed
to specifically meet the needs of certain classes of offenders.
The Law Council supported this inclusion, especially as residential
treatments are available in other jurisdictions. However, the Law Council
advised that was unclear whether this proposal had been fully costed and
considered against Australia's human rights obligations. In this light, it
recommended that the measure should only be implemented:
additional funding being provided and an assessment by the Parliamentary Joint
Committee on Human Rights that such a scheme would be consistent with Australia's
international human rights obligations.
Schedule 13—Release on parole
Schedule 13 proposes a number of amendments to the Crimes Act to ensure
that information that could prejudice national security is not disclosed as a
result of the operation of Part 1B of the Crimes Act, which provides that the
Attorney-General must provide reasons for refusing to make a parole order. The
Explanatory Memorandum notes that:
The effect of this
amendment is that if an offender is refused parole, partially or wholly on the
basis of intelligence information, the statement of reasons does not need to
set out this information if disclosure of that information may adversely impact
national security. Withholding such information is necessary for the protection
of the public.
The Explanatory Memorandum notes:
Normally, in the
course of making parole decisions, information adverse to an individual is put
to that person for comment prior to the making of a decision. 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. The amendment strikes an appropriate balance between
these interests by ensuring that information can only be withheld on this
The Law Council expressed concern that some offenders may not be in a
position to defend themselves appropriately due to a lack of information about
the revocation of their parole, even if they could demonstrate good behaviour.
It 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.
The Attorney-General's Department advised the committee that:
It is in the public
interest to restrict certain information used as part of a parolee’s decision
to release an offender from custody. For example, information may be provided
to the department which relates to ongoing intelligence matters or
investigations. The release of that information to the parolee could jeopardise
not only ongoing matters but put the community at risk where that information
relates to the capabilities or methodology of law enforcement or intelligence
Schedule 14—Revocation of parole order or licence
Associate Professor Lorana Bartels argued that the proposed limiting of
a court's ability to credit 'clean street time' made under schedule 14, making
it merely a discretionary power, was in direct conflict with the ALRC 2006
legislation should provide that 'clean street time' is to be deducted from the
balance of the period to be served following revocation of parole or licence.
The Law Council also noted this amendment, but suggested that, 'given a
court has to retain discretion to deduct clean street time' it considered the
provision did not raise significant concern.
Schedule 15—Expanding the meaning of child abuse material and other
Schedule 15 of the bill would repeal references to 'child pornography
material' in the Criminal Code and other Commonwealth legislation, and reconstitute
the current definitions of 'child abuse material' and 'child pornography' into
a single definition of 'child abuse material'.
The Explanatory Memorandum explains the rationale for this change:
Attaching 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
This was strongly supported by some submitters. For example, the Uniting
Church commented that:
Given the growing
acceptance of pornography as a legitimate product in Western societies, the
term 'child pornography' is now seen to offer some legitimacy to the material
in question when it should be regarded as unacceptable and criminal.
However, Ms Elly Bromberg was opposed to the redefinition entirely, as
she considered scrapping the distinction between 'child pornography' and 'child
abuse' could potentially lead to 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. To give an analogy,
rapists (of adult women) are generally treated far more seriously than 'gropers',
even though both are rightly criminal.
The Law Council observed that the reframing proposed by the bill does
not seem to be problematic, but pointed out that:
child abuse materials appear to be a subcategory of child exploitation
Consideration may need to be given to
whether particular offence provisions are aimed at targeting more broadly child
exploitation and whether 'child exploitation materials' would be a more
A similar point was raised by Anti-Slavery Australia, which advised the
Commonwealth should adopt the terminology of the Luxembourg Guidelines, in
material is defined as a broader category of sexualised content depicting or
representing children, whereas child abuse material is defined more narrowly
as depiction of child sexual abuse.
Moreover, the Law Council also commented that the bill does not amend
the definition of 'a child', and so consensual sexting between 16-17 year olds
could still potentially be prosecuted after the bill is introduced. In this
light, it recommended the Criminal Code's definition of a child is amended
considering the age of consent in Australian jurisdictions, 'so as not to
criminalise behaviour that would otherwise be lawful'.
Other matters raised by submitters
genuine marriage defence
A number of submitters noted that the bill would not remove the defence
to overseas sex offences that the alleged offender believed there 'existed
between the defendant and the child a marriage that was valid, or recognised'
under the law of another jurisdiction.
The Law Council observed that this appeared inconsistent with the forced
marriage provisions of the Criminal Code introduced in 2013, and at odds with
Commonwealth legislation more generally that considers:
...it is both
appropriate and necessary to criminalise the targeted conduct, precisely
because that conduct may not be the subject of effective prosecution, and may
not even be illegal, in the foreign jurisdiction in which it occurs.
Collective Shout argued that:
In Australia, a
marriage is not valid if at least one party is a minor because it is presumed
that minors cannot give free and full consent. We recommend that this standard
be applied to children internationally as well.
More measures to ensure
ISPs cooperate with law enforcement agencies
Collective Shout raised concerns that the positive measures introduced
by the bill could also be supported by tightening provisions of the
Telecommunications Act to ensure ISPs cooperated more readily with Australian
law enforcement agencies. In particular, it argued that the current requirement
under the Act to 'do their best' to assist investigations would benefit from
being strengthened, noting a large number of child abuse and trafficking
investigations are regularly impeded by large telecommunications companies
withholding information from investigations.
Collective Shout endorsed Anti-Slavery Australia's recommendation that a
new code for industry be developed, to assist them protecting children from
harm and setting out their legal obligations to do so.
Resourcing of the
The Law Council noted that the Financial Impact Statement included in
the Explanatory Memorandum stated that the bill's effects would be minimal, and
largely due to increased costs of housing federal prisoners on remand and
sentence. It commented that this did not take into account the current:
funding to the courts or legal assistance services. The criminal justice system
is already over-stretched
and it is critical that additional
resourcing be provided if the measures in the Bill proceed.
Research into pathways
The Uniting Church submitted that the Commonwealth should continue to
fund research into the pathways that lead to individuals committing child sex
offences to reduce offending rates over the long-term. Moreover, it recommended
that, in addition to the amendments made by the bill, the Commonwealth should
implement the UN Committee on the Rights of the Child recommendation of 19 June
...to develop and
implement a comprehensive and systematic mechanism of data collection,
analysis, monitoring and impact assessment of child sexual abuse offences. This
should include data collected on the number of prosecutions and convictions,
disaggregated by the nature of the offence.
The committee is satisfied that the provisions of the bill would
strengthen Australia's legal framework to protect the community from child sex
offenders, including complementing the recently implemented reforms preventing
child sex offenders travelling overseas to commit further crimes against
In particular, the committee notes the bill seeks to address the effects
of new technology that has made it easier for child sex offenders to access and
share information online. The committee considers that the inclusion of these
acts as crimes is a timely and appropriate addition.
The committee understands that the provisions of the bill are entirely
consistent with Royal Commission into Institutional Responses to Child Sexual
Abuse and that they complement the work of Commonwealth, state and territory
governments through the Ministerial Council for Police and Emergency Management
child sex offender reform working group.
The committee notes the general support for the intention of the bill in
submissions, as well as the support for particular measures voiced by
submitters. However, the committee also received evidence of concerns about the
bills amendments, which will be discussed briefly in turn.
The committee heard that the new powers of the Attorney-General to
revoke an offender's parole or licence without notice to protect the community
and reduce the chance of an offender absconding under schedule 1 may not
maintain principles of procedural fairness. However, it appears that any
affected individuals would still be able to make a written submission
justifying why that parole order should not be revoked and that, should this
satisfy the Attorney-General, they would be released immediately.
The committee understands that submissions broadly supported the
introduction of new protections for vulnerable witnesses under schedule 2.
However, the committee also considers that more information about the
legislative requirements for the admission of pre-recorded evidence, and more
training in interviewing vulnerable witnesses and pre-recording evidence, may
be beneficial for professionals working in criminal justice and law
enforcement. Given this, the Commonwealth may wish to consider how to ensure
appropriate information is given to relevant agencies and officers.
The committee also notes the general support for the strengthening of
penalties for child sex offences contained in schedule 4. However, the
committee also sees merit in the proposal that the new 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.
The committee recommends 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).
Some submissions raised concerns about Schedule 5 provisions aimed at
strengthening sentences for certain Commonwealth child sex offences and for
breach of the obligation on internet service providers and internet content
hosts to report child abuse material to police. However, the committee is
satisfied that toughening sentences and penalties for these offences reflect
the seriousness of the crimes, and are both reasonable and proportionate.
On mandatory sentences introduced by schedule 6, the committee
acknowledges the concerns raised by the Law Council of Australia in its
submission. On the concern that the proposed amendments could potentially
criminalise certain behaviours between consenting individuals between
16 and 17 years old that are common, normal and lawful in Australian
jurisdictions, the committee understands that mandatory minimum penalties
contained in the bill will not apply to people under the age of 18, when the
relevant offence was committed while they were under the age of 18.
However, the committee sees merit in the Law Council's advocacy for the
bill to provide for discretion to be applied to offenders who suffer from
severe cognitive impairments.
The committee recommends that the Government considers where discretion
could be applied by a court in considering cases where the defendant is
severely cognitively impaired.
On the presumptive measures introduced by the bill, the committee
understands several reservations were expressed by submitters. However, on
balance, the committee sees these amendments as reasonable and appropriate for
the seriousness and gravity of child sex offences.
On matters that the court has regard to when passing sentence, the
committee sees some merit to tightening the provision relating to a 'person's
standing in the community' being restricted to child sex offences. The
Commonwealth may wish to consider whether this is an appropriate amendment, or
whether it should also apply to sex offences committed on adults.
The Government may also wish to consider refining the definition of
'reasonable' directions issued by a parole officer in Schedule 11 of the bill,
so as to assist in the interpretation of the amendments made by the bill.
Regarding the non-disclosure of information that could potentially
prejudice national security, proposed under schedule 13, the committee
considers that in some cases it may be in the interest of the community for
information to be withheld, particularly if it could jeopardise ongoing matters
or put the public at risk.
A concern was raised that schedule 14 may contravene recommendations of
the ALRC in 2006 on the sentencing of federal offenders. However, the committee
shares the Law Council's view that this would not raise significant concern as
courts would retain discretion to credit 'clean street time' when sentencing.
The committee notes the strong support for the bill's proposed
replacement of the term 'child pornography material' with a reconstituted
definition of 'child abuse material'. It notes some concerns were raised, but
that the amendments were overwhelmingly supported by evidence in submissions.
Some other concerns were raised by submissions. On these, the committee
considers that the Commonwealth may wish to consider these issues in the
fullness of time, including reconsidering the genuine marriage defence,
introducing more measures to ensure internet service providers understand how
to best protect children from abuse, as well as their legal obligations,
resourcing the justice system, and undertaking more research into pathways to
The committee would like to reiterate that the bill would significantly
strengthen Australia's child protection framework, and recommends that the bill
The committee recommends that the bill be passed.
Senator David Fawcett
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