This Bills Digest replaces an interim Bills Digest published on 9 February 2024 to assist in early consideration of the Bill.

Purpose of the Bill

The purpose of the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 (the Bill) is to amend the Crimes Act 1914 to strengthen the protections afforded to victims and survivors of child sexual abuse and vulnerable persons in Commonwealth criminal proceedings. The amendments in the Bill relate to proceedings with respect to Commonwealth crimes and do not apply to sexual violence offences in state/territory legislation.

Specifically, the Bill will:

• expand the range of offences (which will include crimes against humanity, war crimes and drug offences involving children) to which special rules for proceedings involving children and vulnerable adults in Part IAD of the Crimes Act apply
• provide that evidence of a vulnerable adult complainant’s reputation with respect to sexual activities is inadmissible in a vulnerable adult proceeding
• restrict the admissibility of sexual experience evidence of vulnerable adult complainants unless the court grants leave and considers specific criteria, including that the evidence is substantially relevant to the facts in issue. The court must also give regard to whether its probative value outweighs any distress, humiliation or embarrassment to the vulnerable person
• empower a court, if it is satisfied that it is in the interests of justice to do so, to order an evidence recording hearing for a vulnerable person to give evidence and sets out conditions on how the evidence recording hearing must be conducted
• require all evidence given by a vulnerable person outside of an evidence recording hearing, including on cross-examination and evidence in chief, to be recorded so that it may be used in later proceedings and
• clarify that the current restriction on publishing material that identifies (or is likely to identify) another person as a child witness, child complainant or vulnerable adult complainant in a proceeding does not apply to a vulnerable person who publishes self-identifying material, as well as streamlining the requirements for another person to publish the identifying information of a vulnerable person with their informed consent.

Background

Royal Commission into Institutional Responses to Child Sexual Abuse

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) was announced on 12 November 2012 by the then Prime Minister Julia Gillard.[1] The Royal Commission was established in response to allegations of sexual abuse of children in institutional contexts that had been emerging in Australia for many years.[2] The Royal Commission was constituted as an inquiry for the Commonwealth and each of the states and territories. The Letters Patent required the Commission to ‘inquire into institutional responses to allegations and instances of child sexual abuse and related matters’.[3] It was directed to:

… focus on systemic issues, be informed by an understanding of individual cases, and make findings and recommendations to better protect children against sexual abuse and alleviate the impact of abuse when it occurs.[4]

The Final Report of the Royal Commission is comprised of 17 volumes, with each volume drafted so that it may be read as a self-contained report on the topic or institution to which it relates.[5] The Government considers that the Bill implements recommendations 52, 53, 56 and 61 of the 2017 Final Report of the Royal Commission which are discussed in the Criminal Justice Report released in August 2017.[6] The Criminal Justice Report addresses part of paragraph (d) of the Letters Patent, which required the Royal Commission to inquire into:

what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.[7]

The following are the recommendations by the Royal Commission that the Bill proposes to implement:

Recommendation 52:

State and territory governments should ensure that the necessary legislative provisions and physical resources are in place to allow for the prerecording of the entirety of a witness’s evidence in child sexual abuse prosecutions. This should include both:

in summary and indictable matters, the use of a prerecorded investigative interview as some or all of the witness’s evidence in chief

in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re-examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself.[8]

Recommendation 53:

Full prerecording should be made available for:

all complainants in child sexual abuse prosecutions

any other witnesses who are children or vulnerable adults

any other prosecution witness that the prosecution considers necessary.[9]

Recommendation 56:

State and territory governments should introduce legislation to require the audiovisual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual abuse prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness’s evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a prerecorded hearing.[10]

Recommendation 61:

The following special measures should be available in child sexual abuse prosecutions for complainants, vulnerable witnesses and other prosecution witnesses where the prosecution considers it necessary:

giving evidence via closed circuit television or audiovisual link so that the witness is able to give evidence from a room away from the courtroom

allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child-friendly environment

if the witness is giving evidence in court, using screens, partitions or one-way glass so that the witness cannot see the accused while giving evidence

clearing the public gallery of a courtroom during the witness’s evidence

the judge and counsel removing their wigs and gowns.[11]

National Strategy to Prevent and Respond to Child Sexual Abuse 2021–-2030

The National Strategy to Prevent and Respond to Child Sexual Abuse 2021-–2030 (National Strategy) is a strategic framework for federal, state and territory governments aimed at preventing and responding to child sexual abuse.[12] It is a whole-of-nation policy approach that provides a strategic framework for increasing understanding of, implementing better responses to, and preventing child sexual abuse over the 10-year period. The development of a National Strategy was a key recommendation of the Royal Commission.[13] The federal, state and territory governments are to implement the National Strategy through a series of action plans.[14]

The First National Action Plan will run for 4 years from 2021 to 2024 and includes measures that the Australian, state and territory governments will collectively deliver.[15] The First National Action Plan comprises the following 5 themes:

1. Awareness raising, education and building child safe cultures

2. Supporting and empowering victims and survivors
3. Enhancing national approaches to children with harmful sexual behaviours
4. Offender prevention and intervention
5. Improving the evidence base.[16]

The Bill proposes to advance theme 2 of the First National Action Plan, of which measure  9 proposes to ‘strengthen protections for vulnerable witnesses giving evidence in criminal proceedings for child sexual abuse-related Commonwealth offences’.[17]

Meeting of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault

Under the Meeting of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault (MAG Work Plan) all Australian jurisdictions have agreed to take collective and individual action to improve the experiences of victim-survivors of sexual assault in the criminal justice system.[18] The MAG Work Plan focuses on the following 3 priority areas:

1. strengthening legal frameworks to ensure victim-survivors have improved justice outcomes and protections, wherever necessary and appropriate, across Australia
2. building justice sector capability to better support and protect victim-survivors
3. supporting research and greater collaboration to identify best practices, and to ensure actions are supported by a sound and robust evidence base.

The Bill proposes to support the MAG Work Plan by strengthening the legal frameworks necessary to improve justice outcomes and protections for victims and survivors.[19] Notably the MAG Work Plan identifies the following priorities:

• Priority 1.3: examine legislative protections for vulnerable witnesses giving evidence in criminal proceedings and consider extending, if necessary, eligibility for those that are not currently accessible to victim survivors of sexual offences.[20]
• Priority 2.3: review opportunities to provide tailored and accessible supports to victim-survivor witnesses who require communication assistance or other non-legal services, including witness intermediary schemes, interpretation and translation services, or assistance animals.[21]
• Priority 2.4: consider how to improve access to, and the operation of, audio visual link technologies, court support resources and other available facilities to improve the capability of the court system to support witnesses giving evidence in sexual assault trials.[22]

Australian Law Reform Commission Inquiry into Justice Responses to Sexual Violence

In May 2023 the Australian Government announced that it would be investing $14.7 million to strengthen the way the criminal justice system responds to sexual assault and to prevent further harm to victims and survivors through the justice process.[23] This announcement included $6.5 million over 4 years to the Attorney-General’s portfolio for 3 related initiatives to strengthen criminal justice responses to sexual assault:

• an Australian Law Reform Commission (ALRC) inquiry into justice responses to sexual violence
• a ministerial-level national roundtable on addressing sexual violence to drive nation-wide, cross sector collaboration and inform the terms of reference for the ALRC inquiry
• a lived experience expert advisory group to support the ALRC inquiry and advise the Australian Government on implementation of its recommendations.[24]

The terms of reference for the inquiry ask the ALRC to have regard to:

• laws and frameworks about evidence, court procedures/processes and jury directions,
• laws about consent,
• policies, practices, decision-making and oversight and accountability mechanisms for police and prosecutors,
• training and professional development for judges, police, and legal practitioners to enable trauma-informed and culturally safe justice responses,
• support and services available to people who have experienced sexual violence, from the period prior to reporting to the period after the conclusion of formal justice system processes, and
• alternatives to, or transformative approaches to, criminal prosecutions, including restorative justice, civil claims, compensations schemes, and specialist court approaches.

These measures form part of the Government’s efforts to implement the MAG Work Plan and the National Plan to End Violence Against Women and Children 2022-2032.[25] The terms of reference state that the ALRC should provide its final report to the Attorney-General by 22 January 2025.

National Roundtable on Justice Responses to Sexual Violence

The National Roundtable on Justice Responses to Sexual Violence (National Roundtable) was convened by the Australian Attorney-General on 23 August 2023 ahead of the commencement of ALRC Inquiry into Justice Responses to Sexual Violence.[26] The National Roundtable brought together victims and survivors, representatives from the service and advocacy sectors, other experts and relevant Commonwealth, state and territory ministers.[27]

Part of the Roundtable focused on informing the development of the terms of reference for the ALRC Inquiry and to inform potential future  work and priorities in responding to sexual violence. The National Roundtable and the ALRC Inquiry were intended to build upon previous inquires and reforms, including the Senate Legal and Constitutional Affairs References Committee inquiry into current and proposed sexual consent laws in Australia.[28]

Committee consideration

At the time of writing, the Senate Selection of Bills Committee had deferred consideration of the Bill to its next meeting.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.

Policy position of non-government parties/independents

In his second reading speech on the Bill, Paul Fletcher, the Manager of Opposition Business in the House, stated that the Bill should be referred to committee for inquiry and report. His rationale for the referral was the following;

Initial feedback from stakeholders is that these measures are broadly in line with criminal procedure provisions in the various state and territory jurisdictions. However, the bill is technical in nature, and a close analysis is warranted, informed by the expertise of the legal profession. It is highly desirable that the parliament should, before arriving at a final position, allow the legal profession and other stakeholders to provide input through a parliamentary committee process so as to allow the parliament to be satisfied that the bill is well adapted to the problems it seeks to address.[29]

During debate of the Bill in the Federation Chamber, independents Kate Chaney, Zali Steggall, Monique Ryan and Zoe Daniel all spoke in support of the Bill. Zali Steggall although supportive of the Bill stated the following:

Overall, this bill is a step in the right direction for a more victim-centred justice system for those who suffer the trauma of sexual assault. But I urge the government to remain open-minded on further reforms as needed … It's clear that this is an area where we must do so much more.[30]

Position of major interest groups

This section summarises the position of key stakeholders who have commented on the Bill, noting specific concerns are discussed further in the ‘key provisions and issues’ section.

In developing the Bill, the Attorney-General’s Department provided certain stakeholders with an Eexposure Ddraft, with some of the submissions received by the Department having been published by the relevant organisation themselves (the Department does not appear to have published all submissions received with respect to the Eexposure Ddraft). Certain provisions referred to in these submissions, such as provisions for witness intermediaries and ground rules hearings, were not included in the final version of the Bill.[31]

Legal profession

In its submission on the Eexposure Ddraft of the Bill, the Law Council of Australia stated it generally supports the proposed amendments though raised concerns that:

… the witness intermediary and pre-recording of evidence provisions in the Draft Bill lack necessary detail to effectively guide the courts, complainants, and the accused. This risks the possibility of delays and appeals as courts try to determine Parliament’s intention. The lack of procedural fairness safeguards, such as the requirement for complete disclosure before pre-recording commences, also risks unfair trials.[32]

Legal Aid NSW also published a submission in relation to an Eexposure Ddraft of the Bill which stated that while it was broadly supportive of the proposed amendments, ‘clarity is needed on how the Commonwealth provisions [providing protections for vulnerable witnesses] interact with existing state/territory provisions, especially in proceedings involving both Commonwealth and state/territory offences’.[33]

Following the introduction of the Final Bill, criminal law specialist Justin Wong raised similar concerns with how these provisions would intersect with NSW legislation:

The proposed changes only apply to prosecution of Commonwealth sexual violence crimes and not state or territory prosecutions. The vast majority of sexual crimes fall under state or territory legislation, so the practical effect of these new changes will be limited. Also, some of the protections reflect what is already in place under state legislation. The recording of a complainant’s evidence so it can be replayed at a later trial has been in practice in NSW for some time.

However, some of the changes go further than current state legislation. The restrictions against evidence of a complainant’s prior sexual experience would be limited to only evidence of sexual activities with the defendant. This is narrower than the current NSW provisions,…

Further, although NSW currently allows for the pre-recording of evidence in child sexual assault matters, the proposed Commonwealth changes would allow the pre-recording of evidence in matters involving adult complainants. The wider expansion of pre-recorded evidence before a jury is a significant change to the way criminal trials have historically run. The bill is still yet to be reviewed through the committee process, and it will be interesting to monitor how the likely impacts are assessed.[34]

Advocacy groups

Advocacy groups have generally been supportive of the proposed reforms.

Rape and Sexual Assault Research and Advocacy CEO Rachael Burgin was reported as stating that she welcomed the amendments as a ‘necessary shift of focus away from victims of crime and onto the actions of the accused.’[35] A spokesperson for 1800RESPECT  was quoted as voicing support for the Bill, stating ‘[a]ny measures that support and safeguard people who have experienced sexual violence are welcome.’[36]

Full Stop Australia stated it ‘is firmly of the belief that the implementation of sexual violence law reform at a Commonwealth level provides a critical benchmark for State and Territory Governments to follow’, though argued that further reforms are needed to support victim -survivors.[37]

The National Women’s Safety Alliance noted they had participated in numerous consultations on some of the provisions in the Bill and while welcoming the introduction of the Bill, also argued that further reforms are required:

The case we argue with respect to the proposed Bill is that in developing the framework to strength[en] criminal justice responses to sexual violence, there is a need to reflect both on evolving social standards, the primacy of the victim-centred approach (which is at the core of the National Plan) and the appalling attrition rate of complaints and conviction rates. It is our view that to make tangible progress on the aims of the National Plan and to improve the journey of all survivors of sexual violence through the justice system, there is a need for the provisions in this Bill to be extended.[38]

Financial implications

According to the Explanatory Memorandum, there is no financial impact associated with this Bill.[39]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, 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. [40]

The Government has stated that the Bill will engage the following human rights:

• the right to privacy, and right to protection against unlawful attacks on reputation, contained in Aarticle 17 of the International Covenant on Civil and Political Rights (ICCPR) and Aarticle 16 of the Convention on the Rights of the Child (CRC)
• the right to freedom of expression, contained in Aarticle 19(2) of the ICCPR and Aarticle 13 of the CRC
• the right to freedom for women against any form of discrimination contained in Aarticle 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
• the right to a fair hearing contained in Aarticle 14(1) of the ICCPR and
• the right to criminal process contained in Aarticle 14(2)-(7) of the ICCPR.

However, the Government considers that the Bill is compatible because it promotes human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bill.

Key issues and provisions

While states/territories have primary responsibility for enacting criminal laws, the Commonwealth also has the power to enact laws with respect to its powers under the Constitution. This includes laws relating to customs offences, people smuggling offences, human trafficking offences, child sex offences by Australians in foreign countries, and drug importation/exportation offences. These offences are generally set out in Schedule 1 to the Criminal Code Act 1995 (Criminal Code) and the Crimes Act.

State/territory courts have jurisdiction to deal with people charged with Commonwealth offences and state/territory laws relating to criminal procedure generally apply.[41] While the Commonwealth, New South Wales, Norfolk Island, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory have enacted uniform evidence legislation (referred to as the Uniform Evidence Law) which governs the law of evidence with respect to both civil/criminal proceedings, Queensland, South Australia and Western Australia have not enacted uniform evidence legislation.[42]

The provisions contained in the Bill amend Part IAD of the Crimes Act. Part IAD currently sets out special rules for vulnerable persons giving evidence in proceedings involving certain Commonwealth offences which include:

• restrictions on the admissibility of evidence in relation to a child’s sexual reputation or sexual experience
• limitations on the ability to cross examine vulnerable persons
• enabling the use of closed-circuit television, video-link or video recording for vulnerable persons to give evidence
• allowing vulnerable persons to have an accompanying support adult
• enabling closed court proceedings and
• prohibiting the publication of material identifying a vulnerable person.

The Bill will expand the category of persons to whom these protections apply and provide for additional protections.

Expanding the category of people considered to be a ‘vulnerable person’

Section 15Y of the Crimes Act sets out the types of proceedings to which the protections specified in Part IAD apply. While these protections previously only applied to child witnesses in proceedings for particular offences, they have been subsequently expanded to apply to adult complainants in proceedings for particular offences and persons the court has declared to be ‘special witnesses’ (as defined in section 15YAB).[43] A special witness is a person who the court is satisfied is ‘unlikely to be able to satisfactorily give evidence in the ordinary manner’ because of ‘a disability’ or ‘intimidation, distress or emotional trauma’ arising from factors such as the person’s age, cultural background or relationship to a party to the proceeding, or the nature of the evidence.  

Items 1–-3 of the Bill provide for additional offences to which special rules for children involved in criminal proceedings (defined as either a ‘child witness’ or a ‘child complainant’) with respect to these offences will apply. The expanded circumstances include any offence against:

• Division 268 of the Criminal Code that is:
  • a crime against humanity
  • a war crime
  • a crime against the administration of justice of the International Criminal Court
• Division 274 of the Criminal Code (torture)
• Division 309 of the Criminal Code (drug offences involving children)
• Part IIIA of the Crimes Act prior to the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010
• Parts 3 (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation), and 5 (Sexual servitude) of the Crimes Act 1900 (ACT) should those offences arise under the Crimes at Sea Act 2000 or
• Section 14 or 15 of Crimes (Aviation) Act 1991 which arise under Parts 3 (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation) and 5 (Sexual servitude) of the Crimes Act  1900 (ACT).

Items 10 and 11 will expand the current definitions of ‘child complainant’ and ‘child witness’ to include a person who was a child at the time the offence was committed, though is now an adult.

Items 5–-7 provide for additional offences to which special rules for ‘vulnerable adult complainants’ who are, or who are alleged, to be a victim of one of these offences, will apply.[44] The expanded circumstances include any offence against:

• Section 71.8 of the Criminal Code (sexual assault of United Nations and associated personnel)
• Division 268 of the Criminal Code that is:
  • a crime against humanity
  • a war crime
  • a crime against the administration of justice of the International Criminal Court
• Division 272 of the Criminal Code (child sex offences outside Australia)
• Division 273 of the Criminal Code (offences involving child abuse material outside Australia)
• Division 273B of the Criminal Code (protection of children)
• Division 274 of the Criminal Code (torture)
• Division 309 of the Criminal Code (drug offences involving children)
• 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)
• Subdivision D or F of Division 474 of the Criminal Code (offences relating to use of carriage service involving sexual activity with, or harm to, person under 16)
• Part IIIA of the Crimes Act prior to the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010
• Parts 3 (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation), and 5  (Sexual servitude) of the Crimes Act 1900 (ACT) should those offences arise under the Crimes at Sea Act 2000
• Section 14 or 15 of Crimes (Aviation) Act 1991 which arise under Parts 3 (Sexual offences), 3A  (Intimate image abuse), 4 (Female genital mutilation) and 5 (Sexual servitude) of the Crimes Act 1900 (ACT)
• an aggravated offence against Subdivision C of Division 12 of Part 2 of the Migration Act 1958 or
• a sexual offence specified in the regulations.

Stakeholder commentary

Full Stop Australia was broadly supportive of these amendments, though made suggestions in its submission on the Eexposure Ddraft of the Bill to expand the category of offences in which vulnerable people who are involved in court proceedings as complainants or witnesses are afforded enhanced protections.[45] Its suggestion regarding the inclusion of Division 274 of the Criminal Code (torture) was adopted, whereas its suggestion to include genocide offences in Division 268 of the Criminal Code was not adopted.[46]

In its submission on the Eexposure Ddraft of the Bill, the Law Council stated that it:

… supports protections applying to proceedings involving child complainants for this broader range of offences, however it does not support the automatic application of the protections to adult complainants, especially for non sexual offences (e.g. war crimes, crimes against humanity). The recording and, in particular, pre-recording of evidence can lead to delays, increased costs, and unfairness to the accused.[47]

This view was shared by Legal Aid NSW, which argued that these amendments were not necessary as an adult complainant can already be declared to be a special witness and were not in line with what was recommended by the Royal Commission:

The Royal Commission noted that adult survivors are likely to be vulnerable witnesses but did not state that all adult survivors are necessarily vulnerable, nor did it make any recommendations suggesting that they be treated as such. Those who are likely to be vulnerable witnesses can be declared special witnesses under the existing section 15YB.

Further, while the Royal Commission noted the possible vulnerability of adult survivors of child sexual offences, there is no evidence that adult complainants of other offences (for example, drug offences involving children or war crimes) are necessarily vulnerable.[48]

In its submission on the Eexposure Ddraft of the Bill, the National Women’s Safety Alliance discussed the variance in the different types of protections provided for special witnesses in Australian courts and urged consideration be given ‘to expanding the list of offences and criteria that permit a witness or complainant to be declared vulnerable or special’:

There is an absence of consistency in how special witnesses and complainants are defined in each jurisdiction, with disability, age and the nature of the offence codified at 15YAB in the Crimes Act 1914 (C’th). Likewise, provisions that guide approaches towards complainants of sexual violence can markedly vary such as in terms of the line of questioning and cross examination by self represented defendants. With the proposed reforms to safeguard children, we are now at a nexus where remaining and permissible adversarial practices are almost entirely directed towards adult complainants of (non-historical) sexual abuse or sexual violence.[49]

Restricting the admissibility of sexual reputation/experience evidence

Changes to admissibility of evidence in child proceedings

Currently under section 15YB of the Crimes Act, evidence of a child witness’ or child complainant’s reputation with respect to sexual activities is inadmissible in a child proceeding, unless the court gives leave or if the child is a defendant in the proceedings. The court must not give leave unless satisfied that the evidence is substantially relevant to facts in issue in the proceeding and if the evidence is admitted, it must not be treated as relevant to the child witness’ or child complainant’s credibility.

Items 20 and 21 will amend section 15YB to remove the references to the court giving leave, thereby prohibiting the admissibility of sexual reputation evidence in child proceedings unless the child is a defendant. This reflects the Government’s position that ‘such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in any circumstance’.[50]

Evidence of a child witness’ or child complainant’s experience with respect to sexual activities is also currently inadmissible in a child proceeding, unless the court gives leave, or the evidence is of sexual activities with a defendant in the proceeding.[51] Currently the court must not give leave unless satisfied that:

• the evidence is substantially relevant to facts in issue in the proceeding or
• if the evidence relates to the credibility of a child witness and is to be adduced in cross‑examination of the child—the evidence has substantial probative value.[52]

Items 23 and 24 will provide that evidence of a child witness’ or child complainant’s experience with respect to sexual activities will be inadmissible unless the court gives leave, and the evidence is of sexual activities with a defendant in the proceeding, and the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.

As currently, the court must not give leave unless satisfied that:

• the evidence is substantially relevant to facts in issue in the proceeding or
• if the evidence relates to the credibility of a child witness and is to be adduced in cross‑examination of the child—the evidence has substantial probative value.

In deciding whether to give leave, the court must (but is not limited) have regard to:

• whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth
• the period that has elapsed since the acts or events to which the evidence relates were done or occurred and
• whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the child witness or child complainant (item 25).

Changes to admissibility of evidence in vulnerable adult proceedings

Item 26 inserts two new provisions which impose restrictions on the admissibility of evidence relating to a vulnerable adult complainant’s sexual reputation or experience. The proposed provisions ‘undoubtably operate to exclude evidence which would, at least in theory, be admissible under the tendency and coincidence provisions in the Uniform Evidence Law’.[53]

Proposed section 15YCA provides that evidence relating to a vulnerable adult complainant’s reputation in relation to sexual activities is inadmissible as evidence in a proceeding covered by amended subsection 15Y(2).

Proposed section 15YCB provides that evidence relating to a vulnerable adult complaint’s sexual experience is inadmissible unless the court grants leave, the evidence is of sexual activity with a defendant to the proceedings and the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.

The court may only grant leave where it is satisfied that the evidence is substantially relevant to the facts in issue in the proceeding and (if the evidence relates to the credibility of the vulnerable adult complainant and is to be adduced in cross-examination of the complainant) the evidence has substantial probative value. The evidence is not to be treated as being substantially relevant to the facts in issue merely because of inferences it may raise as to the vulnerable adult complainant’s general disposition.

In deciding whether to give leave, the court must (but is not limited) have regard to:

• whether the evidence tends to prove that the vulnerable adult complainant knowingly or recklessly made a false representation when the complainant was under an obligation to tell the truth
• the period that has elapsed since the acts or events to which the evidence relates were done or occurred and
• whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant.

Stakeholder commentary

In its submission on the Eexposure Ddraft of the Bill, the Law Council stated it was ‘pleased to support [the draft provisions relating to admissibility of evidence in vulnerable adult proceedings] which provide significant protections for vulnerable complainants while retaining exceptions for properly relevant and probative evidence’:

The proposed Commonwealth provisions appear to be similar to those existing in other Uniform Evidence Law jurisdictions such as the provisions in Victoria, where robust restrictions on the admissibility of evidence regarding sexual experience or reputation exist in relation to certain classes of witnesses in sexual offences, as contained in Division 2, Part 8.2 of the Criminal Procedure Act 2009   (Vic).[54]

Legal Aid NSW also supported these amendments, noting they were largely consistent with NSW provisions with respect to the admissibility of evidence.[55] The National Women’s Safety Alliance and Full Stop Australia were both also supportive of these amendments.[56] In its comments on the Eexposure Ddraft of the Bill, Full Stop Australia advocated for stronger protections based on NSW legislation:

We note that the NSW provision sets out a specific set of circumstances in which this kind of evidence may be admitted. Any evidence proposed to be admitted, is also subject to an additional consideration of whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the complainant. In our respectful submission, this is a stronger protection than the current Commonwealth provision which states that this evidence may be admitted if “the evidence is substantially relevant to facts in issue in the proceedings”.[57]

The final Bill implements this recommendation in relation to the admissibility of evidence of sexual experience in vulnerable adult proceedings. Proposed paragraph 15YCB(4)(c) requires the court to have regard to whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant.  

The NSW legislation currently provides that, for prescribed sexual offence proceedings, evidence relating to the prior sexual experience or sexual activity of the complainant is inadmissible subject to certain exceptions.[58] Evidence falling within the exceptions can only be admitted if its probative value outweighs any distress, humiliation or embarrassment the complainant might suffer as a result of its admission.

Full Stop Australia also referred to recommendations from the Victorian Law Reform Commission’s report into Improving the Justice System Response to Sexual Offence for victim-survivors to be given:

• notice that evidence of sexual reputation/experience is being introduced and
• legislative standing to participate in any decisions made about this evidence and also be provided with access to legal representation.[59]

Criminal defence lawyer Karen Espiner was reported as stating that the legislation must be ‘carefully scrutinised’ as it could introduce ‘a blanket ban to remove a court’s decision to admit certain evidence in appropriate cases … an accused person must be able to challenge the account of all witnesses to enable allegations to be thoroughly tested.’[60]

Recording of evidence

New provisions for the pre-recording of evidence

Item 27 will insert proposed Division 2A into Part IAD of the Crimes Act, which the Government advises will implement a key component of Theme 2 of the National Strategy and address recommendations of the Royal Commission regarding evidence recording hearings. While special provisions already exist in Part IAD with respect to giving evidence by vulnerable persons, the provisions in proposed Division 2A will allow for the pre-recording of evidence.

Proposed section 15YDB will allow the court to order an evidence recording hearing at which a vulnerable person may record their evidence, provided that the court is satisfied that it is in the interests of justice to do so. Such an order may be made to record the evidence of a vulnerable witness as it relates to evidence in chief, cross-examination, or re-examination. The Division is to have effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.[61]

In determining whether it is in the interests of justice to order an evidence recording hearing the court is required to take into account:

• whether each party to the proceeding has sufficient time to prepare for the evidence recording hearing and the proceeding
• the availability of each party’s legal representation
• the circumstances and wishes of the vulnerable person and
• the availability of court and other facilities to enable the video or audio recording of evidence given at the evidence recording hearing.

An order for an evidence recording hearing may be made on the courts own initiative or on application by (or on behalf of) a party to the proceeding. The order may be made at any time during the proceeding and the order may be made for the evidence recording hearing to be held at any time during the proceeding.  

Proposed section 15YDC sets out the requirements for how evidence recording hearings must be conducted. To meet the purpose of the evidence recording hearing the vulnerable person must not be able to see the defendant during the evidence recording hearing. However, to ensure that procedural fairness is maintained the defendant must be able to see and hear the vulnerable person giving evidence where the evidence is given by closed-circuit television, or hear the vulnerable person giving evidence where the defendant and vulnerable person are in the same room. If there is a jury in the proceedings the evidence recording hearing must be held in their absence. Subject to those requirements the court may determine who is to be present at the evidence recording hearing. This may include the court determining that a support person or mental health professional is required.

Proposed section 15YDD requires that a video or audio recording of the evidence given by the vulnerable person at the evidence recording hearing be made. The recording of the evidence must be played at the hearing of the proceeding and be admitted in evidence as the vulnerable person’s evidence at the hearing as if the vulnerable person gave evidence at the hearing in person.

Proposed section 15YDE provides that the court may refuse to admit the whole or part of the contents of the recording. This allows the court to edit the recording to remove portions which the court deems to be inadmissible.[62]

Proposed section 15YDF provides restrictions on access to recordings and transcripts of evidence recording hearings. A defendant in the proceeding and their legal representative are not entitled to be given an original video or audio recording made in an evidence recording hearing, nor a copy of the original recording. A defendant and their legal representative must however be given reasonable access to the original recording in order to view or listen to it. The defendant and their legal representative are prohibited from making a recording or other copy of the original recording or from doing anything that would damage or alter the recording. The court is required to give each party to the proceeding and the jury (if there is a jury) access to, or a copy or, the transcript of the original recording.

Proposed subsection 15YDF(6) provides that a person will have committed an offence if the person without lawful authority or excuse:

• makes a recording or other copy of the original recording, or a part of the original recording
• does anything directly or indirectly to damage or alter the original recording or a part of the original recording
• possesses or supplies the original recording, or a part of the original recording or
• possesses or supplies a copy of the original recording or part of the original recording.[63]

Proposed section 15YDG provides that where a vulnerable person gives evidence in an evidence recording hearing and that evidence is admitted in the proceeding, the vulnerable person need not give further evidence unless they are ordered by the court to do so. The court may order that it is necessary for the vulnerable person to give further evidence where it is necessary:

• to clarify the vulnerable persons evidence given in the evidence recording hearing
• to give proper consideration of information or material that has become available since the evidence recording hearing or
• in the interests of justice.

If the court makes an order for the vulnerable person to give further evidence the court must order that the evidence is to be given in an evidence recording hearing and must ensure that the vulnerable person is questioned in the hearing only about the matters specified in the order. An order may be made on the court’s own initiative or on application by or on behalf of a party to the proceeding, including by the vulnerable person.

Item 28 amends subsection 15YI(1) to clarify that the existing provisions which require a vulnerable person to give evidence in real time via closed-circuit television (so as to not appear in the same venue as other parties) are subordinate to the provisions under proposed Division 2A. As a result, existing provisions regarding vulnerable witnesses giving evidence via closed-circuit television will only apply where the court does not order an evidence recording hearing under proposed Division 2A. The amendments are made with the intention that proposed Division 2A will set out the primary procedures for vulnerable persons to provide evidence, while section 15YI will provide an alternative for vulnerable persons, should they wish to access it.[64]

Key amendments with respect to the recording of evidence

The Bill will also amend existing provisions in Part IAD with respect to the giving of evidence by vulnerable persons.

Item 30 inserts proposed subsection 15YK(2) which requires that the defendant and their legal representative as well as the jury (if there is a jury in the proceeding) must be allowed to see the vulnerable person, and any person present with the vulnerable person, on one or more television monitors while evidence is being given by a vulnerable person via closed circuit television. The purpose of the proposed subsection is to ensure procedural fairness during criminal proceedings and to ensure that the defendant is not disadvantaged in any way by the recording of evidence and that they are able to observe the giving of that evidence.[65]

Item 32 inserts proposed section 15YLA regarding the recording of evidence given in person. The proposed section requires the court to order that evidence given in person by one of the following persons:

• for a child proceeding – a child witness (including a child complainant)
• for a vulnerable adult processing – a vulnerable adult complainant or
• for a special witness proceeding – a special witness for whom an order under subsection 15YAB(3) is in force

must be recorded if the court is satisfied that the evidence could be used in another proceeding, the court is equipped with the necessary facilities and the person agrees to the evidence being recorded. This subsection will apply whether or not the evidence is given by closed-circuit television.

This item is aimed at implementing Rrecommendation 56 of the Royal Commission’s Report which recommended that jurisdictions allow the recording of evidence no matter the mode of delivery so that those recordings may be tendered and relied on as the relevant witness’s evidence in any subsequent proceedings so that the number of instances in which a vulnerable person is required to recount potentially traumatic details is reduced.[66]

Item 36 repeals and replaces subsection 15YM(4) which requires a person to be available for cross-examination and re-examination if a recording of an interview with the person has been admitted as evidence in chief. The proposed substitution reflects the new requirements established by the Bill and states that if a video or audio recording of an interview of a person is admitted as evidence in chief the person must be made available for cross-examination and re‑-examination subject to Divisions 2A and 3.

Item 37 amends section 15YM to make it a criminal offence to do any of the following with respect to the recorded evidence of a vulnerable person without lawful authority or excuse:

• make a recording (or other copy) of a recording, or part of a recording
• do anything (directly or indirectly) to damage or alter a recording, or part of a recording
• possess or supply a recording, or part of a recording, or
• possess or supply a copy of a recording, or part of a recoding.[67]

Item 41 amends the note at the end of subsection 15YNB(1) to clarify that original evidence admissible in a new proceeding may include evidence recorded at an evidence recording hearing or in an interview.

Item 42 amends paragraph 15YNB(4)(a) to omit ‘child complainant’ and substitute ‘child witness’ to capture the expanded definition of child witness, which includes child complainants.

Item 43 amends subsection 15YNB(4) to expand the subsection so that it applies to special witnesses in special witness proceedings. This would enable evidence used in an original hearing to be used in a subsequent hearing, under certain circumstances set out in the section, without the need to provide the evidence more than once.

Stakeholder commentary

Full Stop Australia’s submission on the Eexposure Ddraft of the Bill expressed strong support for the proposed amendments.[68]

The Law Council stated that it is generally supportive of procedural reforms designed to minimise any re-traumatisation of victim-survivors in criminal trials, however noted that any such reforms would need to be carefully balanced against the fundamental right to a fair trial which would require that the accused be able to test the evidence.[69] The Law Council also raised concerns with the operation of the provisions, including that the pre-recording could occur at any point in the trial, and recommended that the court should be required to consider other factors when determining whether it is in the interests of justice to order a hearing for the taking of pre‑-recorded evidence.[70]

Similarly, Legal Aid NSW was supportive of the amendments regarding pre-trial hearings, so long as they were established with appropriate procedural fairness safeguards (of which it suggested should be strengthened) and supported by resourcing of agencies to ensure that the provisions did not delay proceedings.[71] However, Legal Aid NSW raised concerns that the provisions would extend the eligibility for pre-recorded evidence hearings beyond the scope provided for in the NSW legislation:

This inconsistency between Commonwealth and NSW provisions creates legal uncertainty and may result in extensive legal arguments, delays and potential appeals. The inconsistency also raises practical difficulties. In NSW, Commonwealth trials frequently involve a mix of State and Commonwealth charges. Situations may arise where different procedures apply for different charges involving the same vulnerable witness. For example, the witness may be eligible to give evidence in a pre-trial hearing for the Commonwealth charges but not for the State charges. Hence, a vulnerable witness might have to provide a mixture of pre-recorded evidence and evidence which is not pre-recorded. The witness at the pre-trial hearing would need to be told that they cannot talk about certain charges.[72]

Support for vulnerable persons

Item 48 amends subsection 15YO(1) to expand the circumstances in which a vulnerable person may be accompanied by an adult. This amendment allows a child witness, a vulnerable adult complainant or a special witness to be accompanied by an adult when they are at an evidence recording hearing. The intention of the amendment is to minimise the negative psychological impact of providing evidence relating to past trauma.[73]

The Government states that this amendment progresses Theme 2 of the National Action Plan in addition to addressing Recommendation 61 of the Royal Commission’s Report relating to the provision of support to vulnerable persons giving evidence at evidence recording hearings.[74]

Item 50 inserts proposed section 15YOA which prescribes the circumstances where a person has a right to an interpreter. If the court is satisfied that a child witness, a vulnerable adult complainant or a special witness is unable, or because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in that language, the court must arrange for the presence of an interpreter to assist the person to understand and participate in the proceeding.

Stakeholder commentary

The Eexposure Ddraft of the Bill included provisions that would have would enabled a vulnerable person giving evidence by video link to be accompanied by a witness intermediary. While stakeholders such as the Law Council and Legal Aid NSW supported in principle the use of witness intermediaries for witnesses with communication difficulties in Commonwealth proceedings, they raised concerns around the lack of detail regarding the role, the process for appointment, how they would be used and procedural safeguards.[75] These provisions were not included in the final version of the Bill.

Full Stop Australia has previously recommended that witness intermediary schemes should be extended to anyone with communication challenges or who would benefit from communication assistance.[76] Full Stop, in their submission to an Attorney-General’s Department scoping study, considered Tasmania’s witness intermediary scheme to represent the best model of eligibility of the existing state and territory schemes.[77] Subsection 7F(1) of the Evidence (Children and Special Witnesses) Act 2001 (Tas) states:

… a witness who is to give evidence in a specified proceeding will be taken to have a communication need if the quality or clarity of evidence given by the witness may be significantly diminished by the witness’s ability to understand, process or express information.[78]

Publication of identifying material

Section 15YR currently prohibits a person publishing information about a child witness, child complainant or vulnerable adult complainant (collectively a vulnerable person) where that information would identify the person and the court has not given leave with respect to the publication. This prohibition does not apply where the vulnerable person is a defendant in the proceedings.

Items 52–-56 amend section 15YR to clarify that vulnerable persons may publish information that identifies themselves as a child witness, child complainant, vulnerable adult complainant, or special witness in a criminal proceeding. The amendments expand the category of persons to include special witnesses.[79]

These amendments also provide for the process for a vulnerable person to give informed consent to the publication, including that this is in accordance with the limits set by the vulnerable person.[80] For an adult, this will also include ensuring that the vulnerable person had the capacity to consent, and for children it requires that consent be accompanied by a supporting statement.

Proposed subsection 15YR(2B) establishes the requirements for the making of a supporting statement, including that it is in writing and made by a person who is either a medical practitioner, a psychologist or prescribed by the regulations. It must also state that the person making the statement is satisfied that the vulnerable person understands what it will mean to be identified and the consequences of losing anonymity.

Item 56 will amend subsection 15YR(4) to expand the factors the court must have regard to when deciding whether to grant leave with respect to the publication of the matter to include:

• any trauma to, or damage to the reputation of, another vulnerable person (other than the defendant) in relation to the proceeding and
• any other matter that the court considers to be relevant.

According to the Explanatory Memorandum, the purpose of this amendment is to recognise the complex and varied nature of cases that may come before the court and to allow the court to weigh the impact on the vulnerable person as a result of the publication against the interests of justice.[81]

Stakeholder commentary

In its submission on the Eexposure Ddraft of the Bill, Full Stop Australia expressed strong support for the amendment aimed at supporting victim-survivors to speak about their experiences, if they chose to do so:

We recognise and acknowledge the empowerment that comes from victim-survivors telling their stories. We know from our experience that speaking out about sexual, family and domestic violence can be important to individual recovery. We also know that the ability to speak out can address barriers to justice and foster community understanding about the nature and extent of sexual violence.

However, it should also be mentioned here that speaking out can come at great personal cost. In high-profile matters, victim-survivors might be under great public and media pressure, and this can be re-traumatising. Therefore, if consent is to be granted, it must be … informed consent.[82]

The Law Council similarly expressed support for the amendments allowing victim-survivors or another authorised person to publish identifying material about themselves or about matters which might identify them as a vulnerable person in relevant proceedings, stating that:

… permitting victim-survivors to publish identifying material ‘plays an important part of therapeutic justice, ownership and empowerment’ for victim survivors’, while also educating society about sexual violence and stimulating public debate and discourse.[83]