2.1
As detailed in chapter 1, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the bill) would amend the Crimes Act 1914 (Crimes Act) and the Criminal Code Act 1995 (Criminal Code). This chapter provides an overview of the evidence received on the bill and then considers key issues raised by inquiry participants with reference to:
Schedule 1–Revocation of parole order or licence to protect safety;
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 to which a court had regard when passing sentence etc.;
Schedule 12–Additional sentencing alternatives;
Schedule 13–Revocation of parole order or licence; and
other matters raised with the committee.
2.2
The chapter concludes with the committee's view and recommendation.
General support for the bill
2.3
Several submitters supported the bill's intention to strengthen Australia's framework for protecting the community from child sex offenders. Some submissions noted general support for the bill, and other submissions highlighted particular provisions or measures in the bill. The Carly Ryan Foundation welcomed the bill 'as a way to get action and more adequate and just sentencing'. Bravehearts was supportive of the government's stated commitment to 'strengthening the protection of the rights of children, their wellbeing and safety, and Australia's undertakings as signatories to a range of conventions and protocols'.
2.4
The Royal Australian & New Zealand College of Psychiatrists (RANZCP) observed that many of the bill's provisions reflect current community expectations.
2.5
Other submissions supported some sections of the bill but expressed concern about others. For example, Shine Lawyers submitted their support for some sections of the bill:
Shine Lawyers supports the measures in the bill allowing victims…of child sexual abuse a less traumatic way to interact with the criminal justice system in schedules 2 and 3. We support the strengthening of child sexual offences outlined in schedule 4 and in general terms, agree that tougher penalties ought to be imposed on perpetrators of child sexual abuse offences in line with community expectations.
2.6
The Law Council of Australia (Law Council) supported the policy intent of the bill but raised concerns about several measures outlined in it. Justice Action did not support measures proposed in the bill.
Schedule 1–Revocation of parole order or licence to protect safety
2.7
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 conditions apply, and given 14 days to respond to allegations. The Attorney-General's Department and the Department of Home Affairs indicated that this 'time lag…is problematic if it is believed the person poses a danger to the community'. It also 'gives the person an opportunity to commit further offences or even to abscond'.
2.8
Item 1 of Schedule 1 would amend the existing requirements 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 person. This provides an option to revoke a person's parole or licence in circumstances that require a response before the current 14 day timeframe, but would not otherwise meet the current threshold of urgency (which implies a need for immediate action).
2.9
The explanatory memorandum states that including community safety as a consideration would 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 would provide that parole orders and licenses would be subject to this amendment even if they have been made or granted before the bill commences.
2.10
The RANZCP supported the insertion of community safety as a factor relevant to the revocation of parole. The Sexual Assault Support Service was also supportive of the provision but noted 'it does not seem particularly necessary given that parole can already be revoked without 14 days notice in situations of urgency'.
2.11
Legal Aid NSW opposed this provision on the basis that 'existing exceptions to the notice requirement already provide sufficient power to revoke without notice, when necessary to ensure the safety and protection of the community or another person'.
2.12
The Law Council described this amendment as 'objectionable on procedural fairness grounds' and recommended its removal. Alternatively:
…an independent 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.
2.13
The government did not accept that an independent parole board is required. The Attorney-General's Department and the Department of Home Affairs submitted that 'appropriate procedural fairness protections are incorporated into the proposed amendments in Schedule 1':
If an offender's parole were revoked under proposed Schedule 1 of the Bill, the offender would be provided with an opportunity to make a written submission to the Attorney-General as to why their parole order or licence should not be revoked in accordance with the existing provisions of the Crimes Act 1914 (Cth) (Crimes Act). If the Attorney-General is satisfied of those reasons the offender would be immediately released from custody. The proposed mechanism reflects an appropriate balance between the right of the offender to procedural fairness and the need to protect the community from the dangers of child sexual abuse.
Schedule 2–Use of video recordings and Schedule 3–Cross-examination of vulnerable persons at committal proceedings
2.14
Schedules 2 and 3 would make amendments to protect vulnerable witnesses, such as children, giving evidence in particular criminal proceedings. This includes proceedings relating to Commonwealth sex offences, as well as human trafficking and slavery offences.
2.15
Schedule 2 would remove the existing requirement for the court to grant leave before admitting a video recording of an interview of a vulnerable person as evidence in chief. The recorded interview would still need to be conducted by a constable or a specified person. The explanatory memorandum notes that removing the requirement to seek leave brings the Commonwealth's vulnerable witness protections into line with the approach taken by states and territories. These provisions would apply to proceedings begun on or after the commencement of the bill.
2.16
Schedule 3, which deals with cross-examination of vulnerable persons at committal proceedings, would amend the Crimes Act to remove 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.
2.17
A number of submissions highlighted their support for the provisions in schedules 2 and 3.
2.18
With respect to schedule 2, the Law Council noted that removing the requirement for leave to be sought for vulnerable witnesses to give pre-recorded evidence was 'consistent with international best practice and promotes the Government's victim-centred approach to combatting human trafficking and slavery'. However, the Law Council also raised some concerns about the effect of the changed arrangements and observed that:
[I]t may be useful for relevant participants in the criminal justice system to receive education about legislation authorising the use of pre-recorded evidence, and training in relation to interviewing vulnerable witnesses and pre-recording evidence.
2.19
The amendments in schedule 2 which would 'remove procedural barriers to the use of video recordings, therefore making it easier for recordings to be admitted and relied upon in child sexual abuse proceedings' were welcomed by knowmore. However, knowmore advocated for the inclusion of additional special measures to ensure full implementation of recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). In particular, knowmore urged the government to introduce further amendments to include adult victims and survivors of child sexual abuse within the definition of 'vulnerable adult complainant', therefore ensuring that this and other existing special measures are available to them.
2.20
While supporting the proposed amendment in schedule 2, Legal Aid NSW did not support the amendment in schedule 3 because of its broad nature. It was suggested that, if the amendment proceeds, it should only apply to child witnesses and vulnerable adult complainants which will 'ensure it is predominately targeted towards the sexual offences listed in s15Y of the Crimes Act'.
2.21
While Shine Lawyers agreed 'with the aim of schedule 3 insofar as it purports to reduce the likelihood of retraumatizing vulnerable persons by subjecting them to cross-examination at committal proceedings', it submitted that:
…a rebuttable presumption against cross examination at a committal hearing would be more flexible than banning cross examination. This would allow judicial discretion to permit or prevent cross examination of a vulnerable witness in committal proceedings where proper to do so rather than imposing a blanket ban.
2.22
The Law Council did not support a complete ban on cross-examination of vulnerable witnesses at committal proceedings arguing that 'such proceedings can be an effective way of streamlining the trial process which may result in benefits for victims'. The Law Council recommended:
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.
2.23
The Attorney-General's Department and the Department of Home Affairs explained the bill does not propose a complete ban on vulnerable witnesses at committal hearings:
Rather, by prohibiting 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 be cross-examined multiple times and often in distressing, combative environments. This may give rise to the risk that a vulnerable witness who has been cross-examined at committal will be unwilling to testify in the trial at all, due to the trauma associated with the cross-examination at committal. Further, the prospect of being cross-examined at both committal and trial may mean that some vulnerable witnesses do not proceed with their complaints. Such an outcome would be contrary to the interests of the administration of justice and, it is submitted, unfair to victims.
Schedule 4–Strengthening child sex offences
2.24
Schedule 4 of the bill would introduce new offences in response to emerging trends in child sexual abuse including offences relating to the grooming of third parties through a carriage service or postal service or when an element of the offence occurs overseas, and offences for a person to provide an electronic service such as creating or administering a website or dark web service. This schedule also includes amendments to current offences in the Criminal Code.
2.25
These provisions were generally supported by submitters and witnesses. The Synod of Victoria and Tasmania, Uniting Church in Australia supported the new offences and also encouraged a greater focus on deterrence and prevention:
The Synod supports Schedule 4 to introduce new aggravated offences that relate to child sexual abuse. While the Synod supports the increased penalties for these serious acts of harm against children, the Synod believes that greater impact in terms of deterrence is achieved through increasing the risk of detection and this is where more impact can be achieved. 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 threat of a longer prison term if the would-be offender believes their chance of getting caught is small.
New aggravated offences (item 3)
2.26
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'.
Criminalising the grooming of third parties (item 6)
2.27
Item 6 would insert a new offence into the Criminal Code to criminalise grooming where a person engages in conduct in relation to another person with the intention of making it easier to procure a child under 16 years of age, to engage in sexual activity overseas.
2.28
Legal Aid NSW opposed this provision and argued it is unclear why the provision is necessary, and 'why "conduct in relation to a child", captured in the existing section 272.15 grooming offence, would not encompass engaging a third party'. Legal Aid NSW suggested that, should the amendment proceed, the maximum penalty should be 12 years' imprisonment or less, in line with section 272.15 of the Crimes Act and other NSW legislation.
Criminalising using postal or similar services to groom another person (item 9)
2.29
Legal Aid NSW also expressed concern about item 9, which inserts three new offences into the Criminal Code relating to the use of a postal service for grooming, with particular reference to the maximum penalties that would apply to the offences. Legal Aid NSW submitted similar concerns in relation to item 30 of the bill.
2.30
The Attorney-General's Department and the Department of Home Affairs explained that the measures are consistent with Recommendation 26 of the Final Report of the Royal Commission, that:
[E]ach state and territory government (other than Victoria) should introduce legislation to extend its broad grooming offence to the grooming of persons other than the child.
2.31
The departments submitted that:
An offence targeting the grooming of third parties will enable police to investigate online and travelling child sex offenders before contact or communication with a child has occurred, thereby better protecting children from harm.
Schedule 5–Increased penalties
2.32
Schedule 5 of the bill would introduce measures to increase the maximum penalties for certain offences in the Criminal Code relating to the sexual abuse of children outside Australia and for offences committed through the use of online and postal services.
2.33
The Attorney-General's Department and the Department of Home Affairs provided an overview of the increased penalties:
For example, the maximum penalties for the grooming offences at subsections 474.27(1) and 474.27(2) have been increased from 12 years to 15 years' imprisonment and the new third-party grooming offences at proposed sections 272.15A, 471.25A and 474.27AA will similarly attract a maximum penalty of 15 years' imprisonment. The penalties for the offences of sexual activity (other than sexual intercourse) at sections 272.9 and 474.25A will attract an increased maximum penalty of 20 years' imprisonment. The offence of engaging in sexual intercourse with a child outside Australia at section 272.8 attracts an increased maximum penalty of 25 years' imprisonment, while the offences of persistent child sexual abuse outside Australia at section 272.11 will now attract a penalty of 30 years' imprisonment. At the most serious end of the offending spectrum, the new aggravated elements at subsection 272.10(1), applying to the offences of sexual intercourse or other sexual activity with a child outside Australia, will impose an increased maximum sentence of life imprisonment.
2.34
Some evidence highlighted support for the increased penalties. Knowmore described the increases for maximum sentences as a:
…clear way of parliament communicating to the judiciary its intention and reflecting community expectations, and it's a recognised way of flagging a change in approach to a particular form of criminal conduct when parliament increases the maximum sentence. Obviously courts should have regard to maximum sentences when they are imposing sentences and should take note of the fact that parliament has flagged that change.
2.35
Legal Aid NSW opposed the increased penalties for a range of child sex offences outlined in schedule 5 of the bill.
2.36
While the Law Council supported 'a penalty system that reflects the seriousness of the conduct concerned', it considered that further information was required to demonstrate the increased maximum sentences 'has been done in a principled manner' and so recommended:
There should be a review of the proposed increase in maximum penalties, and if justified, the Explanatory Memorandum should more clearly state the ground on which the increases in maximum penalties have been selected.
2.37
Since the committee considered the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, the penalties for certain offences in the bill have been increased. The Attorney-General's Department and the Department of Home Affairs explained that the increased penalties 'ensure that the proposed maximum penalty for these offences reflects the relative seriousness of the relevant conduct'. It was noted that the increased penalties in schedule 5 are:
…tailored to the culpability of the criminal activity that constitutes each offence, and reflect a carefully calibrated response to the range of serious dangers posed by child sex offenders to the community.
Schedule 6–Minimum sentences
2.38
Schedule 6 would amend the Crimes Act to introduce mandatory minimum sentences for child sex offences including offences relating to the use of a carriage or postal service, offences relating to the sexual abuse of children overseas and for child sex offenders previously convicted of a separate child sex offence (including state and territory offences).
2.39
The Attorney-General's Department and the Department of Home Affairs explained that for all offences that attract a mandatory minimum sentence, the sentence has been calculated in the bill at 25 per cent of the maximum penalty for the offence. Furthermore:
This means that the head sentence (defined as the overall period of imprisonment, not just the period of time spent in custody) must be equal to or more than the prescribed mandatory minimum sentence. Where a person is charged with more than one offence, the highest applicable mandatory minimum sentence will apply as the absolute minimum head sentence.
2.40
Some submitters supported these amendments. Bravehearts submitted its support:
Bravehearts wholeheartedly supports the use of minimum standard non-parole periods in relation to sexual offences against children. Although it is argued by some in the legal sector that standard non-parole periods are an infringement on the independence and discretion of the judiciary, we believe that the prescription of standard non-parole periods allows for certainty and consistency in sentencing, promotes the proportionality principle and, as such, is consistent with one of the basic premises of our justice system – that the punishment must fit the crime.
2.41
The Carly Ryan Foundation explained that while it initially submitted its support for mandatory minimum sentences, in light of the opposition to these provisions and following further consultation with stakeholders, it recommended that mandatory minimum sentences be removed from the bill to ensure its timely passage through parliament:
Following recent meetings with both sides of government, it is very clear that mandatory minimum sentencing amendments in the bill are going to stand in the way of reforms which all sides of politics can agree to and which will have positive sentencing outcomes. I therefore respectfully suggest that mandatory minimums be removed from the bill. I suggest this not just because it will allow the legislation to progress but also because of further feedback from international experts on paedophiles, who agree that these amendments will not achieve adequate sentencing outcomes. I further suggest that maximum penalties be further increased as a compromise following the removal of mandatory minimums.
2.42
Several submitters and witnesses opposed mandatory minimum sentencing. Concerns were raised that there is insufficient evidence to suggest that mandatory minimum sentencing is effective. The Australian Lawyers Alliance noted that the government 'has not provided any evidence as to the number of cases in which sentences on appeal are found to be inadequate, or on whether this number has significantly increased'.
2.43
Professor Luke McNamara and Ms Drew Hawkes referred to the 'strong body of research and scholarly literature which opposes the use of mandatory sentencing' with particular reference to a paper written by the Victorian Sentencing Advisory Council that found that 'mandatory sentencing is unlikely to achieve its aim of deterring crime'.
2.44
Knowmore questioned whether the effectiveness of mandatory minimum sentencing has been established and referred to concerns raised by the Royal Commission and other stakeholders such as the Australian Law Reform Commission. Knowmore recommended that if mandatory minimum sentences are adopted, 'there needs to be some effective evaluation of the impacts…' which could assist to gain an understanding of whether the stated aim of increasing actual custodial times is being achieved.
2.45
The Synod of Victoria and Tasmania, Uniting Church in Australia submitted:
The Government has not provided any evidence as to why the courts are imposing the sanctions they are currently imposing. The impression created is that the Government has assumed the courts are not performing their function adequately and must be compelled to impose longer prison sentences and send more offenders to prison. Instead there may be good reasons for the courts currently imposing the sanctions they are, but without a proper analysis it is not possible to assess that the current sanctions are inadequate in relation to cases of child sexual abuse in general and that the solution is to seek to compel the courts to hand down longer periods of imprisonment and impose periods of imprisonment.
2.46
Another concern raised in evidence was that mandatory sentencing removes judicial discretion from the sentencing process and 'shows a manifest want of trust and faith in the competence of the judiciary'. It was argued that sentencing should ultimately be a discretionary matter for judges as they are best placed to consider all of the factors when determining sentencing. For example, Legal Aid WA submitted:
Mandatory sentencing deprives judges of the power to reduce a sentence below the minimum sentence on account of the offence being a less serious example of the type of offence, mitigating factors that may be applicable such as cooperation with the authorities, pleas of guilty and on account of factors pertaining to an offender that may justify a lower sentence due to diminished responsibility due to youth, mental illness or cognitive impairment.
2.47
The Law Council was concerned that, under mandatory minimum sentencing, judges become 'rubber stamps rather than exercising judicial discretion' and this risks undermining the community's confidence in the judicial process.
2.48
The Synod of Victoria and Tasmania, Uniting Church in Australia argued that '[r]emoving judicial discretion can send a signal to the community that the legislative arm of government lacks faith in the ability of the judicial arm of government to carry out its function appropriately'.
2.49
Shine Lawyers submitted that public confidence in the judicial system may be undermined as a result of some of the measures in the bill:
I think that it's in relation to where the legislation tries to remove judges' discretion. In terms of the imposition of mandatory minimum sentencing, it comes with it an inference that judges aren't getting it right, that they can't be trusted to get it right, whereas we would submit that judges are in the best position to make the best decision, based on all of the individual circumstances in the case. In that way, some of these provisions can undermine the confidence in the judiciary.
2.50
The Law Council warned that there would be unintended consequences of mandatory minimum sentences and provided a number of scenarios which, should they occur under the bill as proposed, could result in young offenders (and others) being sentenced inappropriately. Knowmore also highlighted that mandatory sentencing often has a disproportionate impact on marginal groups.
2.51
Dr Zirnsak, Senior Social Justice Advocate, Synod of Victoria and Tasmania, Uniting Church in Australia was concerned that the introduction of mandatory minimum sentences could make it more challenging for victims to come forward:
The circumstances in which it may deter a person from forward would be where an offender would have otherwise pleaded guilty and now wishes to contest the case. The victim would be subject to cross-examination and, further, there might be more aggressive cross-examination where the offender's lawyer is seeking to put extra effort in to avoid the mandatory sentencing. They may be circumstances which may deter a victim from pursuing such a case.
2.52
Other approaches were suggested by submitters. The Sexual Assault Support Service suggested that consideration be given to presumptive non-parole periods for certain child sex offences. Legal Aid NSW submitted that the NSW standard non-parole period system 'provides guidance to the court when it is determining the appropriate sentence without limiting the court's discretion' which 'is a preferable model to any form of mandatory sentencing'.
2.53
Legal Aid WA recommended that, should mandatory sentencing remain in the bill, there should be 'exceptions as to when mandatory sentencing will apply where an offender is a young offender (aged between 18 and 23) or a mentally impaired offender (due to mental illness or cognitive impairment)'.
2.54
The Law Council recommended that the provisions be removed from the bill, but if they should remain in the bill, it should be amended to allow the court full discretion 'in cases of individuals with significant cognitive impairment or mental illness'. When asked how the operation of sections 20BS and 20BY of the Crimes Act may operate in circumstances where the Law Council argued certain individuals need to be treated differently at the time of imposition of a mandatory minimum sentence, the Law Council responded:
The Law Council considers that sections 20BS and 20BY are precluded from having any application to people convicted of offences listed in proposed sections 16AAA and 16AAB of the Bill…
The Law Council considers that unless people with cognitive impairment and mental illness are specifically included in the list of 'exclusions' in proposed section 16AAC (which at present is limited to a person who was under 18 years of age at the time the offence was committed) then neither sections 20BS or 20BY will operate where a person is convicted of an offence listed in proposed sections 16AAA or 16AAB.
The exclusion of the operation of these diversionary provisions for people suffering from significant mental conditions serves to highlight the injustice that can be caused by the proposed mandatory sentencing provisions contained in Schedule 6 of the Bill.
2.55
On another matter, Mr Julian Murphy argued that mandatory sentencing provisions such as those contained in the bill 'can operate in certain cases to violate international law's protection of fundamental human rights…' with particular reference to the right to a fair trial, the right to be free from cruel, inhuman or degrading treatment and the right not to be arbitrarily detained.
2.56
The Attorney-General's Department and the Department of Home Affairs emphasised that the bill proposes a 'nuanced and considered model of minimum sentences' which reflects:
…the Government's concern that these penalties should be proportionate and adaptable to the level of culpability inherent in each case. The minimum sentences proposed in this Bill are deliberately designed to preserve key elements of judicial discretion, in order to assist in facilitating the imposition of penalties that appropriately reflect the seriousness of the relevant offending. The proposed minimum penalties are flexible in that judges will be able to:
set a sentence higher than the mandatory minimum sentence
retain discretion in relation to setting the minimum custodial period
reduce a sentence by up to 25 per cent of the duration of the sentence to reflect either an offender’s early guilty plea or an offender’s cooperation with law enforcement or, where both of these factors are present, a discount of up to 50 per cent off the duration of the sentence.
2.57
The departments acknowledged that the minimum penalties 'will to an extent limit judicial discretion' but stated that 'these limits are appropriate'. Furthermore:
The significant judicial discretion maintained by this proposed sentencing regime demonstrates deference to the independence of the judiciary. For instance, the Bill does not impose mandatory minimum non-parole periods, but leaves the setting of non-parole periods to the discretion of judges. The minimum sentences in Schedule 6 of the Bill reflect the Government's commitment to ensuring that sentences imposed under the proposed regime are commensurate with the culpability of the relevant conduct. The proposed minimum sentences are not a 'one size fits all' model of sentencing, but are a nuanced and justified response to the current trend in which all too often child sex offenders receive inadequate sentences.
2.58
It was also noted that the minimum sentences in schedule 6 'will serve to promote opportunities for the offender to participate in meaningful rehabilitation programs either during their incarceration or following release from prison'. Furthermore:
States and territories have advised that a sentence of two years or more is required in order to provide sufficient time for an offender to participate in a robust rehabilitation program. These measures will ensure judges retain broad capacity to tailor sentences that foster rehabilitation. The totality of measures in the Bill, including the new minimum sentences and the sentencing factors related to rehabilitation to which a court must have regard, is designed to ensure that child sex offenders should no longer be released back into the community without rehabilitation—thereby promoting the best outcomes for community safety.
Presumptive measures
2.59
The bill would introduce a number of presumptive measures: presumption against bail (schedule 7), presumption in favour of cumulative sentences (schedule 10) and presumption in favour of actual terms of imprisonment (schedule 11).
Schedule 7–Presumption against bail
2.60
The bill would introduce a presumption against bail into the Crimes Act for certain child sex offenders, which is designed to protect the community from the potential risks posed by individuals accused of child sex offences while they await trial and sentencing. The presumption would apply in two instances: where a person is charged with a 'first strike' offence (under proposed section 16AAA of the Crimes Act, in Schedule 6), and where a person is a repeat offender and subject to the ‘second or subsequent’ mandatory minimum penalties (under proposed section 16AAB of the Crimes Act, in Schedule 6).
2.61
The RANZCP supported the presumption against bail for more serious offences and repeat offenders, as did the Carly Ryan Foundation. Bravehearts posited that for child sex offences, the presumption should be against bail unless exceptional circumstances exist. It was emphasised that the presumption against bail is warranted in light of the gravity of these types of offences and the impacts on victims underscores the inherent risks in releasing offenders on bail'.
2.62
Other evidence to the inquiry did not support the presumption against bail as it was viewed as 'a serious erosion of the presumption of innocence'. Legal Aid Western Australia considered that existing laws are sufficient 'to ensure that judicial officers appropriately consider whether a person accused of a crime should be permitted to be on bail in the community on conditions'.
2.63
The Law Council argued that this presumption 'runs counter to the long held presumption in Australian law in favour of bail' and is inconsistent with the presumption of innocence. It was further noted that this presumption may be in conflict with Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR). The Law Council recommended that the presumption be removed from the bill.
2.64
Similarly, Shine Lawyers submitted that the presumption against bail would appear to limit rights under the ICCPR and expressed the view that:
…the presumption against bail is an unjustifiable departure from the presumption of bail and it may result in loss of liberty in circumstances it is not reasonably necessary or proportionate given the specific circumstances of the individual matter.
2.65
The Attorney-General's Department and the Department of Home Affairs argued that the presumption against bail 'is reasonable and proportionate as it applies only to the most serious child sex offences or where an offender would be facing a mandatory minimum penalty because they have been convicted of previous child sex offence'. Furthermore, 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. In addition:
The Bill sets out a non-exhaustive range of factors that the court may consider in determining bail for child sex offences. These factors include, for example whether the bail authority considers that the person would be likely to commit further offences, intimidate witnesses or destroy evidence.
Schedule 10–Cumulative sentences
2.66
The bill would introduce a presumption in favour of cumulative sentencing which would 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 presumption in favour of cumulative sentences would 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.
2.67
Submissions, including those from Bravehearts and the Carly Ryan Foundation, supported the presumption in favour of cumulative sentences.
2.68
Legal Aid WA did not support the proposed amendment to section 19(5) of the Crimes Act relating to concurrent or partly cumulative sentences not being imposed for Commonwealth child sex offences, because it considered this amendment is not consistent with well-established totality principles. Legal Aid NSW also opposed the presumption that sentences be cumulative.
2.69
The Law Council was concerned that this 'may restrict judicial discretion to some extent', and that the presumption was 'somewhat paradoxical and its purpose unclear'. Moreover, the Law Council 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.
2.70
The Attorney-General's Department and the Department of Home Affairs explained that the objective of the presumption in favour of cumulative sentences 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 an appropriate response to the objective seriousness of the sexual abuse of children'.
2.71
The departments reiterated that courts:
…will retain discretion to consider the outcome for all of 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 for deviating from the presumption in favour of cumulative sentencing.
Schedule 11–Conditional release of offenders after conviction
2.72
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 release order. The explanatory memorandum states that the amendment is 'intended to ensure that all offenders convicted of Commonwealth child sex offences serve a period of imprisonment that is not suspended'. The explanatory memorandum explains that 'exceptional circumstances' is deliberately not defined as doing so would 'impose practical constraints'; given 'the variable circumstances which may militate against or support a sentence of imprisonment'.
2.73
Legal Aid NSW expressed concern that item 1 of schedule 11 'unduly limits judicial discretion'. It was suggested that, should the amendment proceed, it should not apply to offenders who were under 18 at the time of the offence'. The Synod of Victoria and Tasmania, Uniting Church in Australia stated that provisions that require periods of imprisonment 'need to be approached with extreme caution'.
2.74
The Law Council argued that this 'is likely to place additional strain on the criminal justice system particularly given that the "exceptional circumstances" threshold is a very high bar and may result in inordinate pressure on the remand population'. It was recommended that this provision be removed as:
…maintaining 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.
2.75
The Attorney-General's Department and the Department of Home Affairs advised:
The introduction of a presumption in favour of an actual term of imprisonment as set out in the Bill still provides the courts with enough discretion in setting the pre-release period under a recognizance release order to enable individual circumstances to be taken into account while ensuring that child sex offenders receive sentences that reflect the serious nature of their crimes.
Schedule 8–Matters to which a court had regard when passing sentence etc.
2.76
Section 16A of the Crimes Act currently provides sentencing factors that the court must consider when determining a sentence that is of a severity appropriate in all circumstances of the offence. Schedule 8 would introduce two new sentencing factors that would apply to all federal offences: the timing and overall benefit of a guilty plea; and a person's standing in the community as an aggravating factor. The bill would also introduce one factor that would relate solely to child sex offenders, the objective of rehabilitation.
Good community standing
2.77
The bill provides that if a person has used their good community standing in the commission of the offence then this would be regarded as an aggravating factor in sentencing. The Law Council observed that the suggested amendment 'does not expressly state that it is confined to sexual offences or situations where children might be abused' and recommended that proposed paragraph 162(2)(ma) should be limited to child sex offences to accord with the stated intent of the bill.
2.78
Shine Lawyers also submitted concerns with this provision on the grounds that it was inconsistent with the recommendations of the Royal Commission:
The Royal Commission considered it unnecessary to follow the approach proposed in Schedule 8 such that if a person used their standing in the community to aid the commission of the offence, that fact becomes an aggravating factor. We see no reason to diverge with the Royal Commission's views in this respect. Aggravating factors already appropriately allow for consideration of the vulnerability of the victim and the breach of trust by a person with authority, supervision or control over the child when committing the offence.
Rehabilitation
2.79
In addition to the general sentencing factors, the bill would introduce a requirement for courts to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Courts would need to consider whether it is appropriate to make orders that include conditions relating to rehabilitation or treatment options, as well as consider whether the sentence or custodial period provides sufficient time for the offender to undertake rehabilitation, noting that programs are available both in custody and in the community.
2.80
Some submissions supported the consideration of rehabilitation when sentencing. The Sexual Assault Support Service supported the provisions and suggested that Commonwealth child sex offenders on remand also be provided the opportunity to voluntarily participate in rehabilitation programs while in custody.
2.81
The RANZCP emphasised the importance of the Commonwealth government ensuring that 'courts are equipped to consider rehabilitation and conditions relating to treatment in an informed way' and stated that tailored and culturally appropriate programs may assist in reducing the risk of recidivism. Moreover:
The RANZCP is pleased to see that the Bill distinguishes the sentencing and rehabilitation options for intellectually disabled offenders from offenders more broadly, acknowledging that options may need to be modified to be effective for that population. Appropriate resources must be allocated to these programs to ensure that they operate effectively.
2.82
Other submissions did not support this provision. Legal Aid NSW argued there is a 'real risk' that this provision 'could lead to significantly extended sentences (particularly the non-parole period) due to a lack of available places in rehabilitation programs'. Legal Aid WA outlined a number of objections including:
the sentencing judge has no power over the administration of a sentence which is a responsibility of the corrective services department in each state;
rehabilitation programs are often run on a periodic basis in certain prisons and may have significant waiting lists;
offenders should not have their sentence increased to undertake a rehabilitative program which may not be available for some time;
sentences should be based on a range of factors specifically related to the offence, not the availability of or time required to undertake rehabilitative programs; and
the availability of rehabilitative programs is an issue of the funding allocated to these programs and to pursue the objective of increased participation in rehabilitative programs, additional funding would need to be allocated to this area.
2.83
Professor McNamara and Ms Hawkes posited that this provision appears to indicate that in some circumstances a longer custodial sentence may be necessary to fulfil the rehabilitation requirement. In the submitters' view, this perspective on rehabilitation:
…appears to be blurred with other more punitive sentencing considerations – where longer sentences reflect the need for retribution and incapacitation. A related practical consideration is that, at the time of sentencing, it may be difficult for a judge to predict the period of time which will elapse before an offender will have the chance to complete a custodial program. Worse still, inadequacies in resourcing, long waiting lists or simply the non availability of programs may result in disproportionate sentences for offenders if 'rehabilitation' is able to influence sentencing in this way.
2.84
The Law Council suggested the provision 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'. It was further noted that this provision 'does not appear to take 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'.
2.85
The Attorney-General's Department and the Department of Home Affairs emphasised that rehabilitation 'is a critical aspect of offenders' successful reintegration into the community and lessens the risk of further offending'. Furthermore:
As federal offenders are held in state and territory prisons, the availability of rehabilitation programs is a matter for the states and territories. Accordingly, it is the responsibility of states and territories to ensure that there is sufficient access to those programs.
The Explanatory Memorandum provides that in taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender, though defence counsel are likely to consider such options in the preparation of their brief and offer these options to the court for the court's consideration.
Schedule 12–Additional sentencing alternatives
2.86
Schedule 12 would amend the Crimes Act to include 'residential treatment orders' as a sentencing alternative for courts. This measure in the bill 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.
2.87
Bravehearts fully supported amendments ensuring that those offenders who are deemed to suffer from a mental illness or intellectual impairment are able to be appropriately sentenced under a residential treatment order.
2.88
The Law Council supported this inclusion, especially as residential treatments are available in other jurisdictions. However, the Law Council advised that it was unclear whether there are adequate safeguards in the bill to ensure that the Commonwealth residential order scheme would comply with Australia's international human rights obligations. In light of this, it was recommended that the measure should be implemented:
…subject to 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–Revocation of parole order or licence
2.89
Currently, offenders who have been released into the community on parole or licence and reoffend have their parole order or licence revoked automatically at the time they are sentenced for a new offence. In such cases, the person is liable to serve that part of the sentence that was outstanding at the time of their release, but are given credit for 'clean street time'. Clean street time includes the time between reoffending and sentencing for the new offence (often a period of many years). Schedule 13 would introduce a federal 'clean street time' policy which links revocation of a parole order or licence to the date on which any new offence is committed.
2.90
Bravehearts submitted its broad support for the amendments under schedule 13 and acknowledged the intention behind the reduction of time served on revocation based on 'clean street time'. However, Bravehearts stated its view that 'once a breach or subsequent offence has occurred, the person should be required to serve the full part of their sentence that was outstanding upon being granted parole', unless it is a minor breach and sound reasons are provided.
2.91
Legal Aid NSW raised some concerns with schedule 13, describing items 1 and 2 as 'confusing' and failing to 'provide clarity to an already complex area of law'. Legal Aid NSW also questioned the appropriateness of measures in item 5 as well as opposing items 6 and 7 as those provisions 'represent a considerable restriction upon the sentencing options available to the court where parole has been revoked'.
2.92
The Law Council noted this amendment and submitted that 'given that a court appears to retain discretion to deduct clean street time', its preliminary view is this provision 'does not appear to raise significant concern'.
Others matters raised
Resource implications
2.93
Some submitters and witnesses drew attention to the resource implications of the bill and noted that some of the measures may result in a need for increased funding. Professor McNamara and Ms Hawkes noted 'with concern' the reference in the explanatory memorandum that the financial impact of the bill would be negligible and argued that a 'genuine commitment to effective rehabilitation carries with it a responsibility to adequately resource perpetrator programs – including custodial and community-based programs'.
2.94
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 associated with housing federal prisoners on remand and sentence. It commented that this does not:
…address allocation of 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.
2.95
On notice, the Attorney-General's Department provided information about the discussions that have occurred with the states and territories in relation to resourcing:
Proposed measures…were discussed at the meetings of the National Working Group on measures concerning child sex offenders in July and October 2017. The Working Group comprised senior police and justice officials from each of the States and Territories and the Commonwealth. The text of the 2017 Bill and Explanatory Memorandum were circulated to members of the Working Group after the October 2017 meeting. Further, the Law, Crime and Community Safety Council, the Council of Australian Governments and the Ministerial Council for Police and Emergency Management discussed measures relating to child sex offenders at meetings held variously in 2016, 2017 and 2019.
Throughout this consultation, the State and Territory Governments have not requested funding or resources in relation to the proposed legislation.
Training for the judiciary
2.96
The expertise and training needs of the judiciary were also discussed by inquiry participants.
2.97
Knowmore drew attention to the recommendations made by the Royal Commission around training of the judiciary:
I think it's critically important, in looking at the efficiency and the effectiveness of sentencing, to ensure that the judiciary has the expertise, the training and the experience to be able to sentencing effectively. The royal commission made some recommendations around proper training—ongoing and comprehensive training—for the judiciary and other justice professionals to ensure they understand child sexual abuse and that they are aware of current social science research around the effects and impacts of that abuse and how that might operate in the context of the criminal justice system.
2.98
The Carly Ryan Foundation explained that it has been considering designing a program for judicial colleges to explain the impacts of child sex offences which may be particularly relevant given the changing nature of some of the offences:
The digital age has changed everything. I don't know if that's being reflected accurately in the sentencing as well. They are potentially comparing it to cases that happened before the internet, and I don't think those cases would completely capture the impact it has on victims and the potential for re-victimisation, especially if that abuse material has been distributed online and re-shared again and again.
Other initiatives
2.99
Jesuit Social Services argued that consideration be given to the broader context of the bill in relation to underlying factors that contribute to child sexual abuse and to implementation of other initiatives that research has shown protect children from sexual abuse:
For example, we recommend implementation of a Stop it Now! Style program in Australia to provide an anonymous, safe and confidential service for people worried about their sexual thoughts and behaviours in relation to children and young people, the Worried About Sex and Porn Project (to intervene earlier for children displaying harmful sexual thoughts and behaviours) and Circles of Support and Accountability (COSA), a restorative justice program that has been shown to reduce the risk of sex offenders reoffending by helping people re-integrate into society after release from prison.
Committee view
2.100
The committee welcomes the measures in the bill which seek to target inadequacies in a number of areas of the criminal justice system in relation to child sex offenders. The committee considers it entirely appropriate for the government to continue to establish a strong framework to respond to the changing landscape of child sex offences, with particular reference to the impact that online sexual abuse has on victims. The proposed amendments strengthen the response to child sex offences in line with community expectations.
2.101
The committee notes the broad support for the objectives and intent of the bill, as well as the support for particular measures outlined by submitters and witnesses. However, the committee acknowledges the evidence received which highlighted concerns about particular measures in the bill. In particular, several inquiry participants opposed the introduction of mandatory minimum sentencing, citing several reasons for that view.
2.102
The committee recognises that the model of mandatory minimum sentences proposed in the bill provides flexibility for judges to be able to set a sentence higher than the mandatory minimum sentence, retain discretion in relation to setting the minimum custodial period, and reduce the duration of a sentence to reflect an offender's early guilty plea or cooperation with law enforcement.
2.103
The committee acknowledges that other concerns were raised during the inquiry, including in relation to the presumptive measures in the bill and the requirements for courts to have regard to rehabilitation when sentencing. The committee is of the view that the measures in the bill are appropriate and necessary to ensure child sex offenders receive sentences that are in line with community expectations and adequately reflect the severity of the crimes committed. The bill also protects children and communities from the risk of further reoffending.
2.104
Moreover, the committee notes the bill complements the package of reforms already introduced by the Government and would significantly strengthen Australia's child protection framework.
2.105
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker
Chair