1.1
On 12 September 2019, the Senate referred the provisions of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 7 November 2019.
1.2
The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee. The report of the Selection of Bills Committee presented multiple reasons for referral, including ensuring the bill is appropriately drafted, stakeholders have the opportunity to provide advice on the bill, and to allow the consideration of issues relating to mandatory sentencing.
Previous bill and committee inquiry
1.3
Another bill, called the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, was introduced into the House of Representatives on 13 September 2017 by the then Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, the Hon Michael Keenan MP. The 2017 bill lapsed at prorogation of the 45th Parliament on 11 April 2019.
1.4
On 14 September 2017 the Senate referred the provisions of the 2017 bill to the committee for inquiry and report by 16 October 2017. The committee received eight submissions and did not conduct any public hearings. The committee presented its report on 16 October 2017 with three recommendations, including that the bill be passed. Labor senators and the Australian Greens presented additional comments to the report.
Conduct of this inquiry
1.5
Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 30 September 2019 and also wrote to a range of organisations inviting them to submit. The committee received 22 submissions which are listed at Appendix 1.
1.6
The committee held one public hearing on 29 October 2019 in Canberra. The witnesses who appeared at the hearing are listed at Appendix 2. Responses to questions taken on notice at the hearing are listed at Appendix 1.
Acknowledgements
1.7
The committee thanks all submitters and witnesses for their participation in the inquiry.
Structure of the report
1.8
This report consists of two chapters:
This chapter provides an overview of the administrative details relating to the inquiry and background to the bill.
Chapter 2 examines the key issues raised in evidence and provides the committee's view and recommendation.
Background and purpose of the bill
1.9
The bill was introduced into the House of Representatives on 11 September 2019 by the Attorney General, the Hon Christian Porter MP. In his second reading speech, the minister stated that the bill:
…is an example of the government's commitment to protect children in Australia and overseas from the dangers of sexual exploitation and abuse and to improve justice outcomes for survivors of child sex offences.
1.10
The minister emphasised that:
…current sentencing practices for Commonwealth sex offences are out of step with community expectations, they do not reflect the severity of harm inflicted by these predators, and they fail to protect our children and communities from further offending.
1.11
The Attorney-General's Department and the Department of Home Affairs informed the committee that the bill would:
…target inadequacies in the existing legal framework at key points in the criminal justice process, from bail and sentencing to post-release supervision. [The bill would] also provide the tools to combat emerging forms of child sexual abuse, which is becoming increasingly prevalent due to technological developments.
1.12
The Attorney-General's Department and the Department of Home Affairs explained that the key measures proposed in the bill will:
increase protections for vulnerable witnesses in relation to giving evidence;
create a number of new offences;
emphasise the importance of access to rehabilitation and treatment when sentencing child sex offenders;
overhaul the sentencing factors for all federal offenders;
ensure that all sex offenders, upon release from custody, are adequately supervised and subject to appropriate rehabilitative conditions;
introduce presumptive measures;
introduce mandatory minimum sentences for the most serious child sex offences and for recidivist offenders; and
increase maximum penalties across the spectrum of child sex offences.
1.13
The committee was also advised that the bill would complement the broader package of reforms introduced by the government in the 45th Parliament including measures in the Passports Legislation Amendment (Overseas Travel By Child Sex Offenders) Act 2017 and the Criminal Code Amendment (Protecting Minors Online) Act 2017. This bill would also complement the Combatting Child Sexual Exploitation Legislation Amendment Act 2019, which received Royal Assent on 20 September 2019. Moreover, the bill is consistent with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).
Overview of the bill
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The bill would amend the Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code). The bill contains 14 schedules and the explanatory memorandum provides an overview of the amendments that would be made by the bill, including provisions to:
insert community safety as a factor that can be taken into account to revoke the parole of a federal offender without notice (schedule 1);
remove the requirement to seek leave before a recorded interview of a vulnerable witness can be admitted as evidence in chief (schedule 2);
prevent children and other vulnerable witnesses from being cross-examined at committal proceedings (schedule 3);
insert notes in the Criminal Code to provide additional clarity regarding the scope of conduct captured by child sex offences (schedule 4);
insert new aggravated offences for child sexual abuse that involves subjecting the child to cruel, inhuman or degrading treatment, or which causes the death of the child (schedule 4);
insert new offences to criminalise the 'grooming' of third parties, including through the use of a carriage service, with the intention of making it easier to procure a child for sexual activity in Australia or overseas (schedule 4);
insert a new offence to criminalise the provision of an electronic service to facilitate dealings with child abuse material online (schedule 4);
insert additional aggravating sentencing factors that apply when a court is sentencing for certain child sex offences, including considering the age and maturity of the victim and the number of people involved in the commission of the offence (schedule 9);
increase the maximum penalties for certain Commonwealth child sex offences (schedule 5);
introduce a mandatory minimum sentencing scheme to apply to the Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender (schedule 6);
insert a presumption against bail for Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender (schedule 7);
make it an aggravating factor in sentencing if a federal offender used their standing in the community to assist in the commission of an offence (schedule 8);
ensure that when sentencing a Commonwealth child sex offender, the court must have regard to the objective of rehabilitating the person, including by considering whether to impose any conditions about rehabilitation and treatment and considering if the length of sentence is sufficient for the person to undertake a rehabilitation program while in custody (schedule 8);
insert a presumption in favour of cumulative sentences for Commonwealth child sex offences (schedule 10);
insert a presumption in favour of Commonwealth child sex offenders serving an actual term of imprisonment (schedule 11);
require that if a court is releasing a Commonwealth child sex offender on a recognizance release order, the offender must be supervised in the community, and undertake such treatment and rehabilitation programs as their probation officer directs (schedule 11);
add residential treatment orders as an additional sentencing alternative to allow intellectually disabled offenders to receive access to specialised treatment options (schedule 12);
reduce the amount of 'clean street time' that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and license (schedule 13); and
require a period of time to be served in custody if a federal offender's parole order is revoked (schedule 13).
Financial impact
1.15
The explanatory memorandum states that the financial impact of the bill would be 'largely limited to the costs associated with housing federal prisoners on remand and sentence'. Furthermore:
The Commonwealth does not own or operate any prisons and federal prisoners are currently housed in state and territory prisons. Convicted federal offenders comprise approximately 3 percent of Australia's total prison population while convicted federal sex offenders comprise approximately 0.4 percent of that population. As such, the overall financial impact on states and territories will be negligible. There will be some increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences, and these costs will be absorbed.
Policy rationale
1.16
The policy rationale for the bill was explained in detail by the Attorney‑General's Department and the Department of Home Affairs. It was stated that law enforcement agencies are seeing an increase in the number of investigations for Commonwealth child sexual crimes both internationally and domestically. New technologies are facilitating the online sexual abuse of children more frequently, including live-streaming the sexual abuse of children using web cameras or mobile phones. Of concern is that offenders are also using more technologically sophisticated networks to distribute child abuse material, including through use of the dark web, encryption and online 'cloud' storage.
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It was argued that 'Australia's laws should reflect the changing landscape of offending and appropriately reflect the impact that online sexual abuse has on child victims'. It was noted that '[p]enalties should adequately reflect the severity of the offences'.
1.18
The Attorney-General's Department and the Department of Home Affairs reported statistics on current Commonwealth sex offences derived from the Commonwealth Sentencing Database. From 1 February 2014 to 31 January 2019:
40 per cent of sentences for Commonwealth child sex offences did not result in a custodial period;
60 per cent of charges relating to child sex offences resulted in a custodial sentence; and
of those offenders who received a custodial sentence during this period, the most frequent term of imprisonment was 18 months, with the most frequent custodial period recorded as six months.
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For the offence of grooming a child using a carriage service contrary to subsection 474.27(1) of the Criminal Code, from 1 February 2014 to 31 January 2019:
80 convictions were handed down;
44 were sentences of imprisonment;
the highest head sentence was 3.5 years' imprisonment;
the lowest head sentence was two months' imprisonment;
the most frequent head sentence of imprisonment was 18 months;
one offender was released on a non-conviction order;
12 offenders were sentenced to community service; and
23 offenders were released on a recognizance release order without spending any time in prison.
1.20
For the offence of using a carriage service for sexual activity with a person under 16 years of age, contrary to section 474.25A(1) of the Criminal Code, from 1 February 2014 to 31 January 2019:
eight convictions were handed down;
seven were sentences of imprisonment;
the highest head sentence was eight years;
the lowest head sentence was 14 months;
the most common head sentence was two years; and
one offender was released to community service without spending any time in prison.
1.21
The Attorney-General's Department and the Department of Home Affairs asserted that 'inadequate sentences do not sufficiently recognise the harm suffered by victims of child sex abuse'. Importantly:
…the Bill addresses the myth that child sexual abuse material offences are a 'victimless' crime by criminalising emerging uses of technology to facilitate dealings in child abuse material and ensuring that the sentences for these offences reflect the gravity of the offending conduct. Behaviour such as accessing and transmitting child abuse material encourages the market demand for, and commercialisation of, this material and leads to further physical and sexual abuse of children. In addition to the harm suffered in the production of that material, the child is re-victimised each time the material is viewed and shared online.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
1.22
The Scrutiny of Bills Committee raised scrutiny concerns when considering both the 2017 and 2019 bills with particular reference to: procedural fairness and broad discretionary power; reversal of the legal burden of proof; mandatory minimum sentences; and the right to liberty.
Parliamentary Joint Committee on Human Rights
1.23
The Parliamentary Joint Committee on Human Rights (the human rights committee) raised human rights concerns when considering the 2017 bill and reiterated those concerns when reporting on the 2019 bill. The human rights committee reported its assessment of the bill with particular reference to the right to a fair trial, right to presumption of innocence and right to liberty.
Note on references
1.24
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
Focus of this report
1.25
Much of the evidence received for the current inquiry highlighted similar issues to those raised in the previous inquiry. While the focus of this report is on the issues raised in the current inquiry, the committee was also able to consider submissions provided to its previous inquiry. Key issues raised in evidence are discussed in the next chapter.