Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017

Bills Digest No. 48, 2017-18

PDF version [694KB]

Monica Biddington
Law and Bills Digest Section

8 November 2017

Contents

Bills Digest at a Glance

Purpose of the Bill

Structure of the Bill

Background

Constitutional power to enact laws relating to child sex offences
Existing legislation
Government policy
Royal Commission into Institutional Responses to Child Sexual Abuse

Committee consideration

Senate Standing Legal and Constitutional Affairs Committee
Senate Standing Committee for the Scrutiny of Bills

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Parliamentary Joint Committee on Human Rights

Key issues and provisions

New criteria to allow the Attorney-General to revoke a parole order without notice (Schedule 1)
Admissibility of video recording in evidence-in-chief (Schedule 2)
Cross-examination of vulnerable person at committal proceedings (Schedule 3)
Amendments to child sex offences in the Criminal Code (Schedule 4)
Increase existing penalties for child sex offences relating to both grooming and other online offences (Schedule 5)
Prescribed minimum sentences for Commonwealth child sex offences (Schedule 6)
A presumption against bail for serious child sex offences, second or subsequent offences (Schedule 7)
Amendments to Part IB of the Crimes Act relating to the sentencing of federal offenders (Schedule 8)
Aggravated sentencing factors for various sexual offences against children (Schedule 9)
Presumption in favour of cumulative sentences for Commonwealth child sex offenders (Schedule 10)
Conditional release of offenders after conviction (Schedule 11)
Residential treatment orders for offenders suffering a mental illness, intellectual disability (Schedule 12)
Maintaining the security of reports, documents and information from being disclosed (Schedule 13)
Revocation of parole order or licence, ‘clean street time’ (Schedule 14)
Definition of child sexual abuse and other consequential amendments (Schedule 15)

Date introduced: 13 September 2017
House: House of Representatives
Portfolio: Justice
Commencement: The day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2017.

Bills Digest at a Glance

The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 will, among other things, introduce prescribed minimum penalties for serious Commonwealth child sex offences.
The Bill makes some amendments to seek to minimise the trauma that witnesses and victims may be exposed to by court processes relating to child sex offences, including removing requirements to seek leave to admit video recordings as evidence in chief and to limit the cross-examination of vulnerable people at committal hearings.
The most significant amendment the Bill makes is to increase existing penalties, and prescribe minimum sentences of imprisonment for, Commonwealth child sex offences (Schedules 5 and 6).
The Bill also creates aggravated sentencing factors for various sexual offences against children, including when the conduct is inhumane or degrading to the child.
The Bill will also insert a presumption against bail for serious child sex offences and second or subsequent offences.
The amendments will limit the exercise of judicial discretion in many aspects of sentencing a child sex offender. However, there has not been significant criticism of the Bill in its current form.
The Law Council of Australia opposes aspects of the Bill, particularly mandatory sentencing, however, other stakeholders are broadly supportive of a measure which should result in somewhat more consistent sentencing of child sex offenders.
The Bill did not go through an Exposure Draft period, and was debated in both Houses of Parliament in the week beginning 16 October 2017, following the tabling of the Senate Legal and Constitutional Affairs Committee report on its inquiry into the Bill on 16 October 2017.
The Senate Legal and Constitutional Affairs Committee recommended that the Bill be passed. The Committee also recommended that the Government consider whether the Bill’s definition of ‘engage in sexual activity’ should also be reflected in the Criminal Code subsection detailing penalties for sexual intercourse with a child outside Australia (section 272.8 of the Criminal Code). The Committee further recommended that the Government consider where discretion could be applied by a court in considering cases where the defendant is severely cognitively impaired. The Labor Party and the Australian Greens made Additional Comments but did not dissent from the main Committee’s views.
However, in the debate on the Bill in the House of Representatives, the Shadow Attorney-General Mark Dreyfus voiced the Labor Party’s opposition to mandatory sentencing, which is proposed in Schedule 6 of the Bill, arguing that ‘mandatory minimum sentences are not the solution to Australia's crime problems, they're not the solution to Australia's gun problems and they're not the solution to child sexual abuse. There is no evidence that mandatory minimum sentences act as a deterrent. In fact, they actually make Australia's criminal justice system less effective, because they make juries less likely to convict.’[1]
Further, Shadow Minister for Justice Clare O’Neil concluded in her speech on the Bill that ‘Labor wholeheartedly support[s] the object of this Bill. We have no tolerance for child sexual abuse. But we believe this Bill needs to contain even stronger messages of condemnation for these horrible crimes. We will be pleased to support this Bill with strengthening measures in the Senate.’[2]

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 (the Bill) is to make amendments to the following Acts:

Crimes Act 1914
Criminal Code Act 1995 (the Criminal Code)
Customs Act 1901
Telecommunications (Interception and Access Act) 1979 (TIA Act).

The amendments will make significant changes to the laws relating to child sex offences affecting penalties, custody, bail, rules of evidence, sentencing, parole and rehabilitative treatment. Of significance, new offences are proposed to criminalise the grooming of third parties for the purpose of procuring a child for sexual activity and to criminalise the provision of an electronic service to facilitate dealings with child abuse material online. Further, prescribed minimum penalties are proposed for certain serious Commonwealth child sex offences.

Structure of the Bill

The Bill is presented as 15 Schedules that will:

permit the revocation of a parole order or licence without notice, if doing so is necessary to ensure the safety and protection of the community or of another person (Schedule 1)
remove the requirement for the court to grant leave before admitting a video recording of an interview of a vulnerable person as evidence in chief (Schedule 2)
remove the requirement for a vulnerable witness to be available to give evidence at committal proceedings and prohibiting cross-examination of these witnesses at committal proceedings (Schedule 3)
create new aggravated offences that apply where the child victim of certain sexual assault offences is subject to cruel, inhuman or degrading treatment in connection with, or dies as a result of, the offence (Schedule 4)
create a new offence criminalising using postal or similar services to ‘groom’ another person to make it easier to procure a person under 16 years of age for sexual activity (Schedule 4)
increase the penalties for existing offences in the Criminal Code that cover grooming and sexual activity with a child outside Australia, and offences relating to the use of postal or a similar service involving sexual activity with a person under 16 (Schedule 5)
introduce prescribed minimum penalties in the Crimes Act for Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences where the offender is a repeat child sex offender (Schedule 6)
introduce a presumption against bail for Commonwealth child sex offences that attract the highest maximum penalties (Schedule 7)
require the court to consider, at the time of sentencing and amongst other existing factors: the timing of a guilty plea and whether that resulted in any benefit to the community; if the person’s standing in the community aided the commission of the offence (creating an aggravated offence); and rehabilitation or treatment options for the offender (Schedule 8)
insert additional aggravated sentencing factors that apply when a court is sentencing a child sex offender, including the age and maturity of the victim and the number of people involved in the commission of the offence (Schedule 9)
insert a presumption in favour of cumulative sentences for Commonwealth child sex offences (Schedule 10)
require all offenders convicted of a Commonwealth child sex offence to serve a period of imprisonment that is not suspended unless the court is satisfied that there are exceptional circumstances (Schedule 11)
add a residential treatment order as an additional sentencing alternative in subsection 20AB(1AA) of the Crimes Act (Schedule 12)
provide that reports, documents and information are not required to be disclosed to a person under Part 1B of the Crimes Act where the provision of the information, in the Attorney-General’s opinion, is likely to prejudice national security (Schedule 13)
introduce federal ‘clean street time’ provisions to Part IB of the Crimes Act (Schedule 14) and
repeal references to ‘child pornography material’ in the Criminal Code and other Commonwealth legislation and replace it with a broad definition of ‘child abuse material’ (Schedule 15).

Background

The Bill was introduced into the House of Representatives on 13 September 2017.[3] It was referred to the Senate Legal and Constitutional Affairs Legislation Committee the following day with a four week consideration and reporting period.[4] While broadly speaking, legislation that aims to protect children from the abhorrent crimes of sexual abuse will be supported, there are legal technicalities and considerations in the Bill that may warrant further consideration and refinement.

Constitutional power to enact laws relating to child sex offences

The states and territories are responsible for child sex related offences occurring domestically. The Commonwealth has Constitutional power where telecommunications technology is used or where the offence is committed overseas, with an Australian connection. The Bill’s proposed amendments to child sex offences in the Criminal Code have a connection to telecommunications networks (‘carriage services’ as defined by the Telecommunications Act 1997). The Commonwealth has power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’ under section 51(v) of the Constitution and with respect to ‘external affairs’ under section 51(xxix). Further, Australia is a party to several relevant international conventions in this area: the Convention on the Rights of the Child, the United Nations Convention Against Transnational Organised Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the International Convention to Suppress the Slave Trade and Slavery, and others.[5]

Article 3(1) of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography requires that certain forms of child sex abuse be covered by the criminal law.[6] Consequently:

the new offence for facilitating online dealings in child abuse material criminalises new ways that child sex offenders are utilising technology to perpetrate offences. These amendments are necessary to ensure that the criminal law remains abreast of technological advances and to ensure that child sexual abuse is fully criminalised.[7]

Existing legislation

Existing Commonwealth child sex offences are in the Crimes Act 1914 and the Criminal Code Act 1995. Of relevance to this Bill, the Commonwealth enacted offences in 2005 to prohibit using a carriage service for child pornography and child abuse material (as defined in section 473.1 of the Criminal Code). Further information on these offences, and all sexual offence and child sexual abuse legislation in Australian jurisdictions, is available in the Australian Institute of Criminology’s Special Report for the Royal Commission into Institutional Responses to Child Sexual Abuse.[8]

Government policy

At the federal level, there has been increased attention on child sex matters with Senator Derryn Hinch’s consistent lobbying for tough penalties and a public register of all child sex offenders.[9] The Bill complements recently legislated measures that stop convicted child sex offenders from travelling overseas to commit criminal acts of abuse against children.[10] The Bill also seeks to respond to the changing and sinister reality of modern child sex offences, where it is possible to cause significant harm to a child through the use of technology. The Attorney-General’s Department further explains that part of the policy rationale behind the Bill is:

... [a]dvances in technology, and increasing access to those technologies, is facilitating a progressive increase in the number of charges and prosecutions for online sexual abuse of children. Offenders are using more technologically sophisticated networks to distribute child sexual abuse material, using the dark web, encryption and online ‘cloud’ storage ...

Australia’s laws should reflect the changing landscape of offending, and appropriately reflect the impact that online sexual abuse can have on child victims ...

... [T]he Bill addresses the myth that child sexual abuse material offences are a ‘victimless’ crime by criminalising emerging uses of technology to facilitate dealing in child abuse material and ensuring that the terminology and sentences for these offences reflects the gravity of the offending. Behaviour such as accessing and transmitting child sexual abuse material encourages the market demand for, and commercialisation of, child abuse material and leads to further physical and sexual abuse of children, in addition to the harm suffered in the production of that material.[11]

Royal Commission into Institutional Responses to Child Sexual Abuse

Following an investigation and report by the ABC’s Four Corners program in 2012 into allegations of historical and continued child abuse by members of the Catholic Church,[12] the then Prime Minister, Julia Gillard, announced in November 2012 the Government’s intention to establish a Royal Commission specifically examining ‘institutional responses to instances and allegations of child sexual abuse in Australia’.[13] A short period of consultation on the establishment of the Commission followed, with a consultation paper released on 19 November 2012 and comments requested by 26 November 2012. On 11 January 2013, on advice from the Prime Minister, Governor General Quentin Bryce issued Letters Patent to appoint a six-member Royal Commission to investigate ‘Institutional Responses to Child Sexual Abuse’. The Royal Commission’s work has been conducted through three approaches: private sessions, public hearings and policy and research.

In relation to legislative reforms, the Commission’s research report, Criminal Justice contains 85 recommendations aimed at reforming the Australian criminal justice system in order to provide a fairer response to victims of institutional child sexual abuse.[14] Released on 14 August 2017, the report recommends:

... a sweep of legislative and policy changes. It includes reform to police and prosecution responses, evidence of complainants, sentences and appeals, and grooming offences.[15]

The Bill is consistent with a number of recommendations made by the Royal Commission in that report. However, the Explanatory Memorandum is not explicit about which recommendations the Bill is implementing. This Digest indicates where it is clear that the Bill is addressing the recommendations.

Committee consideration

Senate Standing Legal and Constitutional Affairs Committee

The Senate Selection of Bills Committee considered the Bill on 14 September 2017. Labor Senator Anne Urquhart proposed that the Bill be referred to a committee for inquiry ‘given the importance of the subject matter, the complexity of some of the Bill’s provisions and the broad scope of the Bill’.[16] The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 16 October 2017. Details of the inquiry are at the inquiry homepage.

Eight submissions have been published on the inquiry homepage, including one from the Attorney-General’s Department which provides additional context to the Government’s policy rationale for the Bill.

The Committee’s report made three recommendations, including that the Bill be passed.[17] The other recommendations endorsed two recommendations from the Law Council of Australia’s submission on the Bill.[18] These recommendations were that the definition of ‘engage in sexual activity’ should also be reflected in the Criminal Code subsection detailing penalties for sexual intercourse with a child outside Australia (section 272.8 of the Criminal Code); and that the Government consider where discretion could be applied by a court in considering cases subject to a mandatory minimum penalty where the defendant is severely cognitively impaired. The Labor Party and the Australian Greens made Additional Comments but did not dissent from the Committee’s views.[19]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills reported on the Bill on 18 October 2017.[20] The Committee requested further advice on the following key aspects of the Bill:

why it is necessary to provide the Attorney-General with a broad discretionary power not to give notice before revoking a person’s parole and why the existing provisions in section 19AU of the Crimes Act 1914 are insufficient to address any immediate risks to safety (Schedule 1)
why it is proposed to reverse the legal burden of proof, and how the reversal of the burden of proof interacts with the obligation on the prosecution to prove the defendant’s belief about age (relating to defences in items 16,18, 37 and 39 in Schedule 4)
the appropriateness of removing judicial discretion in sentencing for certain child sex offences, whether there are examples of analogous offences that carry a mandatory minimum penalty, and how mandatory minimum sentences would interact with existing sentencing principles regarding the setting of a non-parole period (Schedule 6)
the appropriateness of imposing a presumption against bail, including information as to why the current bail requirements are insufficient, and why it is necessary to create a presumption against bail rather than specifying the relevant matters a bail authority must have regard to in exercising their discretion whether to grant bail (Schedule 7)
the proposal to allow the Attorney-General to refuse parole without reason and on ‘opinion’, rather than objective criteria, why the information could not be provided to the applicant’s legal representative and why the decision would not be subject to merits review (Schedule 13).[21]

Policy position of non-government parties/independents

The Australian Greens, in their Additional Comments to the Senate Legal and Constitutional Affairs Committee’s Report on the inquiry into the Bill, support the legislative measures that address protecting children against sexual abuse and harm. The Australian Greens endorsed concerns raised in the Law Council of Australia’s submission and pointed to some aspects of the Bill that may have negative and unintended consequences.[22]

The Australian Labor Party is broadly supportive of the objects and many of the measures contained in the Bill. The Labor Party also noted the concerns raised in submissions to the inquiry and believes that these concerns should be seriously considered and, where appropriate and possible, addressed by the Government. Labor also believes that there are areas of the Bill that could and should be strengthened, stating that ‘Labor will be looking to work with the Government to ensure this Bill is as effective as possible’.[23]

In the debate on the Bill in the House of Representatives, the Shadow Attorney-General Mark Dreyfus voiced the Labor Party’s opposition to mandatory sentencing, which is proposed in Schedule 6 of the Bill, arguing that ‘mandatory minimum sentences are not the solution to Australia's crime problems, they're not the solution to Australia's gun problems and they're not the solution to child sexual abuse. There is no evidence that mandatory minimum sentences act as a deterrent. In fact, they actually make Australia's criminal justice system less effective, because they make juries less likely to convict.’[24]

Further, Shadow Minister for Justice Clare O’Neil concluded in her speech on the Bill that ‘Labor wholeheartedly support[s] the object of this Bill. We have no tolerance for child sexual abuse. But we believe this Bill needs to contain even stronger messages of condemnation for these horrible crimes. We will be pleased to support this Bill with strengthening measures in the Senate.’[25]

Other non-government parties and independents do not appear to have commented on the Bill at the time of writing.

Position of major interest groups

Submissions made to the Senate Legal and Constitutional Affairs Committee’s Inquiry into the Bill were generally supportive of the Bill, particularly the increase to the penalties of imprisonment for Commonwealth sex offenders. However, the Law Council of Australia (LCA) considered that there should be a review of the proposed three year increase in maximum penalties.[26]

Further, the LCA, despite noting the short timeframe in which to make a submission, raised more detailed concerns on the broader legal policy matters raised by the Bill, particularly that the Bill has been introduced prior to the Final Report of the Royal Commission into Institutional Response to Child Sexual Abuse, which is due in December 2017.[27] The LCA also raised issues about whether the proposed amendments would unintentionally capture normal teenage behaviour where one person is over the age of 18 and the other is not.[28] The LCA is strongly opposed to mandatory minimum penalties for criminal offences.[29]

Academic Lorana Bartels raised wider criminal justice issues related to the effect of mandatory sentencing as a broader criminal justice policy, including its impact on women and Indigenous people.[30] The submission did not expressly support the Bill.[31]

The Uniting Church of Australia, in its submission to the Committee, voiced support for the Bill, in particular Schedules 2-5 and 15.[32] Other submissions from Anti-Slavery Australia, the Carly Ryan Foundation and Collective Shout commended the Bill. The Attorney-General’s Department also submitted a detailed policy paper to the Senate Committee.[33]

Financial implications

The Explanatory Memorandum notes that there will be some increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences, and that these costs will be absorbed.[34]

In relation to potentially increased prisoner numbers, the Explanatory Memorandum explains that convicted federal sex offenders are housed in state and territory prisons, but as they are only a small percentage of the prison population, the financial impact on states and territories ‘will be negligible’.[35]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), 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. The Government considers that the Bill is compatible.[36]

The Statement of Compatibility advises that the Bill advances measures that State Parties have undertaken to implement under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,[37] which elaborates on Article 34 of the Convention on the Rights of the Child, including:

criminalising the offering, delivering or accepting a child for sexual exploitation, and distributing, disseminating, offering, selling or possessing child pornography (Article 3(1));
making child exploitation offences punishable by appropriate penalties that take into account their grave nature (Article 3(3));
protecting the rights and interests of child victims at all stages of the criminal justice process, including adopting procedures to recognise their special needs as victims (Article 8); and
strengthen laws to prevent child exploitation offences (Article 9).[38]

Parliamentary Joint Committee on Human Rights

Like the Scrutiny of Bills Committee, the Parliamentary Joint Committee on Human Rights (PJCHR) questioned the removal of judicial discretion in the Bill (Schedule 6). The PJCHR noted concerns about the Bill’s impact on the right not to be arbitrarily detained, the right to have a sentence reviewed by a court and the right to release pending trial. The Committee has sought further advice from the Minister on these issues.[39]

Key issues and provisions

New criteria to allow the Attorney-General to revoke a parole order without notice (Schedule 1)

Schedule 1 of the Bill will insert a new exception where notice to a federal offender is not required when the Attorney-General revokes their parole. Presently, section 19AU of the Crimes Act allows the Attorney-General, by written instrument, to revoke a parole order or licence at any time before the end of the parole or licence period if the offender has failed to comply, or there are reasonable grounds for suspecting that the offender has failed to comply, with a condition of the order or licence (subsection 19AU(1)).

However, in most cases, before revoking the parole order or licence the Attorney-General must give a written notice to the offender advising them of the condition alleged to have been breached and that the Attorney‑General proposes to revoke the parole order or licence 14 days after the date that the notice is issued unless, before the end of that period, the offender gives written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney-General (subsection 19AU(2)).

Subsection 19AU(3) then outlines four conditions that remove the need for notice to be given to the person. In summary they are where the person’s whereabouts are unknown, where it is urgent, where the person is outside Australia or where it is necessary in the interests of the administration of justice.

The amendment will insert new paragraph 19AU(3)(ba) to allow the Attorney-General 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.

All imprisoned offenders are incarcerated because they are considered by a court to be, to some degree, a danger to (the safety of) the community. As part of standard sentencing practices, the court can use its discretion to determine a non-parole period of the prison sentence, after which time the offender can apply for parole, which may be allowed with conditions that might include weekly reporting, limited movement etc.

The proposed amendment is broad and its general application would mean that parole could be revoked without notice by the Attorney-General for many federal offenders (including terrorist offenders, drug offenders and trafficking offenders). If parole is revoked, the person is remanded in custody. This deprivation of liberty and potential encroachment on a judicial process will raise concerns for key stakeholders, lawyers and human rights organisations. The Government states that the person is ‘still afforded procedural fairness as they retain the opportunity under section 19AX of the Crimes Act to make a written submission to the Attorney-General as to why the parole order should not be revoked’.[40] The Statement of Compatibility with Human Rights states that the amendments made by Schedule 1 are reasonable, necessary and proportionate, ‘appropriately balanc[ing] offenders’ right to liberty with the primary right of children under the [Convention on the Rights of the Child] to be protected from sexual abuse’.[41] However, it is not only child sex offenders who can be captured by the amendment.

A further effect of this proposed provision is in circumstances where a minimum sentence of imprisonment (as outlined in Schedule 6 of the Bill) is prescribed and imposed, and a non-parole period is applied by the discretion of the sentencing judge, the Attorney-General would be able to revoke the parole, if granted, without notice, putting the offender back in prison. This could be seen as an affront to the discretionary nature of the sentencing process even where a non-parole period is not prescribed by legislation.

Admissibility of video recording in evidence-in-chief (Schedule 2)

In his second reading speech on the Bill, Minister for Justice Michael Keenan stated that the Government remains committed to strengthening the protections afforded to child and other vulnerable witnesses giving evidence in Commonwealth criminal proceedings.[42] Further, both Schedules 2 and 3 intend to ‘improve justice outcomes by limiting the retraumatisation of vulnerable witnesses by removing barriers to the admission of pre-recorded video evidence and ensuring that they are not subject to cross-examination at committal and other preliminary hearings, thus allowing them to put their best evidence forward at trial’.[43]

Part IAD of the Crimes Act (‘Protecting vulnerable persons’) outlines procedural protections for witnesses or victims of offences listed in section 15Y, which include:

an offence against Division 272 of the Criminal Code (child sex offences outside Australia) (paragraph 15Y(1)(cab))
an offence against Division 273 of the Criminal Code (offences involving child pornography material or child abuse material outside Australia) (paragraph 15Y(1)(cac)) and
an offence against 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) (paragraph 15Y(1)(ca)).

Presently, the court may grant leave for a video recording of an interview conducted by police to be admitted as evidence in chief (paragraph 15YM(1)(b)). Subsection 15YM(2) prohibits the court from giving leave if satisfied that it is not in the interest of justice for the person’s evidence in chief to be given by a video recording. The Government proposes to remove the requirement to seek the leave of the court for video evidence to be admitted because it ‘may have an adverse effect on the vulnerable witness and is contrary to the intent of the vulnerable witness protections more broadly’.[44]

Items 1 and 2 of Schedule 2 will amend section 15YM to allow a video recording of an interview of a person (a child witness, a vulnerable adult complainant, or a person declared as a special witness under subsection 15YAB(1)), in a proceeding to be admitted as evidence in chief if a constable, or a person of a kind specified in the regulations, conducted the interview.

The Explanatory Memorandum notes that removing the requirement to seek leave ‘also brings the Commonwealth’s vulnerable witness protections into line with the approach taken by states and territories’.[45]

The amendments complement recommendations that were made about police investigative interviewing in relation to reports of child sexual abuse by the Royal Commission, which stated that police conduct should accord with principles including:

... the importance of video recorded interviews for children and other vulnerable witnesses should be recognised, as these interview usually form all, or most of the complainant’s and other relevant witnesses’ evidence in chief in any prosecution.[46]

Improving the interview method, substance and the technological quality of the interview will have an impact on its use without leave from the court, going further to protect vulnerable witnesses.

Cross-examination of vulnerable person at committal proceedings (Schedule 3)

Schedule 3 will insert new section 15YHA into the Crimes Act (item 5). Proposed subsection 15YHA(1) prevents the cross-examination, at committal proceedings or proceedings of a similar kind, of a child witness, a vulnerable adult complainant or a person declared as a special witness under section 15YAB.

The Explanatory Memorandum outlines that the amendments in Schedule 3 will achieve three things:

vulnerable witnesses will be spared an additional risk of re-traumatisation
criminal justice processes will be streamlined by ensuring lengthy cross-examination is reserved for trials and not committal proceedings (or proceedings of a similar kind)
the Commonwealth will be brought broadly into line with practice in other Australian states and territories.[47]

In its 2006 report, Uniform Evidence Law, the Australian Law Reform Commission (ALRC) found that child witnesses are particularly vulnerable in the adversarial trial system. In their inquiry into children and the legal process, the ALRC and the Human Rights and Equal Opportunity Commission (now the Human Rights Commission) ‘heard significant and distressing evidence that child witnesses, particularly in child sexual assault cases, are often berated and harassed to the point of breakdown during cross-examination’.[48] The amendments in this Bill will be a significant step in reducing the trauma to vulnerable witnesses.

Amendments to child sex offences in the Criminal Code (Schedule 4)

Section 272.9 of the Criminal Code prohibits a person from engaging in sexual activity (other than sexual intercourse) with a child, where the sexual activity is engaged in outside Australia.[49] The maximum penalty for the offence is 15 years’ imprisonment. Subsection 272.9(5) outlines a defence to a prosecution for the offences in subsections 272.9(1) and (2) if the conduct constituting the offences consists only of the child being in the presence of the defendant while sexual activity is engaged in; and the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

Without changing the substantive offence, item 1 will insert a Note after subsection 272.9(1) of the Criminal Code, to clarify that the definition of ‘engage in sexual activity’ in the Dictionary of the Criminal Code includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity. This would include communication through electronic devices such as laptop computers, tablets or television screens.

Items 3 and 26 insert new aggravated offences into paragraph 272.10(1)(b) and paragraph 474.25B(1)(b) respectively. The new offences will apply, respectively, to the underlying offences in sections 272.8 and 272.9 (discussed above) and section 474.25A (using a carriage service for sexual activity with a person under 16 years of age). A maximum penalty of imprisonment of 25 years will apply to these offences.

Proposed new paragraph 272.10(1)(b) provides that a person commits the aggravated offence if they commit an offence under section 272.8 or 272.9 (the underlying offence) and one or more of the following apply:

(i) the child has a mental impairment at the time the person commits the underlying offence;
(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person, at the time the person commits the underlying offence;
(iii) the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity covered by the underlying offence;
(iv) the child dies as a result of physical harm suffered in connection with the sexual activity covered by the underlying offence.

Paragraph 474.25B(1)(b) is amended in a similar way by the Bill. Subparagraphs (iii) and (iv) are new and are introduced because ‘the Government is deeply disturbed by the emerging trend where offenders inflict severe violence on children alongside sexual abuse. To ensure that this conduct is appropriately punished, the Bill will criminalise activities that aggravate particular types of sexual offending such as subjecting a child to cruel, inhuman or degrading treatment, or causing the death of the child’.[50]

Schedule 4 will further amend specified subsections in Division 471 of the Criminal Code, addressing postal offences. The key items are:

item 5, inserting a new offence (proposed section 471.25A) to use a postal or similar service to ‘groom’ another person to make it easier to procure persons under 16 to engage in sexual activity
item 9, substituting subsections 471.27(3) and (4). Section 471.27 sets out the approach to be taken in relation to offences against Subdivision C of Division 471, which deals with using postal or similar services to commit offences involving sexual activity with a person aged under 16. Currently subsections 471.27(3) and (4) relate to evidentiary requirements for establishing the age that the sender of a posted article believed the recipient to be. Proposed subsection 471.27(3) redrafts and combines the current provisions (without making substantive changes to their substance) to provide that, for the purposes of Subdivision C, evidence that a person was represented to the defendant as being of, younger than, or older than a certain age is proof that the defendant believed the recipient to be that age, unless there is evidence to the contrary
item 12, inserting proposed subsection 471.28(2A) where, for the purposes of an offence against section 471.25A (new offence in item 5), it does not matter that the recipient or the child is a fictitious person represented to the sender as a real person[51]
a defence to the new offence in proposed section 471.25A (item 5). Proposed subsection 471.29(1A), inserted by item 16, will provide that it is a defence if the defendant proves that, at the time he or she caused the article to be posted, the defendant believed that the child involved was at least 16.

Under Schedules 5 and 7 of the Broadcasting Services Act 1992 the Online Content Co-Regulatory Scheme administered by the Australian Communications and Media Authority regulates internet service providers and internet content hosts. However, it does not regulate either the producers of content, or persons who upload or access content. Technological advances create and expose a gap in the existing law that the Bill will address. Item 20 will insert proposed new section 474.23A to create a new offence, with a maximum penalty of imprisonment for 18 years, to provide an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 or 474.23 of the Criminal Code.[52]

The new offence will apply if:

(a) the person engages in any of the following conduct:

(i) creating, developing, altering or maintaining an electronic service;
(ii) controlling or moderating an electronic service;
(iii) making available, advertising or promoting an electronic service;
(iv) assisting in doing anything covered by a preceding subparagraph; and

(b) the person does so with the intention that the electronic service be used:

(i) by that person; or
(ii) by another person;

in committing, or facilitating the commission of, an offence against 474.22 or 474.23.

Increase existing penalties for child sex offences relating to both grooming and other online offences (Schedule 5)

Schedule 5 will increase existing penalties for online child sex offences, including grooming offences. The term ‘grooming’ generally refers to behaviour that is designed to make it easier for the offender to procure a child for sexual activity. Grooming offences in the Criminal Code already exist and Schedule 5 to the Bill proposes to increase the penalty of all the relevant offences by three years. The offences are:

subsection 272.9(1)—engaging in sexual activity with a child outside Australia (item 1 of Schedule 5)
subsection 272.9(2)—causing a child to engage in sexual activity in the presence of the defendant (item 2)
subsection 272.15(1)—grooming a child to engage in sexual activity outside Australia (item 3)
subsections 471.25(1) and (2)—using a postal or similar service to groom persons under 16 (items 4 and 5)
subsection 471.26(1)—using a postal or similar service to send indecent material to a person under 16 (item 6)
subsection 474.25A(1)—engaging in sexual activity with a child using a carriage service (item 8)
subsection 474.25A(2)—causing a child to engage in sexual activity with another person (item 9)
subsection 474.27(1) and (2)—using a carriage service to groom a person under 16 (items 10 and 11)
subsection 474.27A(1)—using a carriage service to transmit indecent communication to a person under 16 (item 12).

The Explanatory Memorandum outlines that the proposed increase to penalties for grooming offences ‘reflects the growing body of evidence that demonstrates the extent of harm “grooming” has on a child victim ... The impact of ‘grooming’ can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour, the perpetrator impacts the child victim’s psychosocial development’.[53]

The arbitrary approach of adding three years to these offences has been questioned by Dr Lorana Bartels in her submission to the Senate Committee’s inquiry into the Bill, noting that the effect of this is that the penalties for some offences (those with lower maximum sentences) are increased by a larger proportion and this may be an anomaly.^[54] (That is, increasing a seven year maximum sentence to a 10 year maximum sentence (as in item 6 of Schedule 5) results in the new penalty being 43 per cent higher than the original penalty; whereas increasing a 15 year maximum sentence to an 18 year maximum (as in items 1 and 2), results in the new penalty being 20 per cent higher than the original sentence.) To address this, the Parliament might seek to readjust the proposed penalties, or increase the penalties with the highest number of years’ imprisonment by an additional two years.

Prescribed minimum sentences for Commonwealth child sex offences (Schedule 6)

According to the Attorney-General’s Department, 59 per cent of charges for Commonwealth child sexual abuse offences since 2010 have resulted in a custodial sentence and 1.8 years is the average custodial sentence length for Commonwealth child sex offences.[55] However, it is also necessary to note that these offences have attracted a low number of prosecutions, which can create a skewed statistical result.

For example, in the six cases between 2012 and 2017 where a person has served a sentence for an offence under section 474.25A(1) of the Criminal Code (engaging in sexual activity with a child while using a carriage service), three of the offenders received sentences of three, four and five years and three offenders received a sentence of 18 months, bringing the average to 33 months where the maximum sentence possible is currently 15 years.[56] An offender is sentenced to a prison term based on many factors, and the maximum penalty applicable for the offence (and where it exists, a prescribed minimum penalty) is only one factor for the sentencing judge to consider and apply. Nonetheless, there is a strong push to modernise sentencing practices to reflect the impact of technology on crime, the potential for a greater impact on a wider number of victims and community expectations that the offenders will be appropriately punished.[57] Prescribing minimum penalties is one way the legislature can achieve this.

The Bill proposes to insert prescribed minimum sentences for offences classified as serious Commonwealth child sex offences and to all child sex offences where the offence is a second or subsequent offence. The Bill uses the term ‘minimum penalties’ and while the Explanatory Memorandum uses the term ‘mandatory’, it is more accurate to define the penalties as prescribed minimum penalties. Prescribed minimum penalties are different to mandatory sentencing:

A presumptive sentencing system is where parliament prescribes a minimum penalty that must be imposed unless the judiciary determines, in accordance with the legislation and the factors of the case, that a departure is justified.[58]

By virtue of the operation of proposed section 16AAC of the Crimes Act (‘Exclusions and reductions’), at item 2 of Schedule 6, the amendments facilitate the exercise of the court’s discretion to impose a sentence of less than the minimum penalties specified in proposed section 16AAA or subsection 16AAB(2) in specific restricted circumstances. The court can impose a lesser sentence if the court considers it appropriate because of either or both of the following:

the person pleaded guilty or
the person cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.

Proposed subsection 16AAC(3) outlines the scope of the sentence reductions that the court may apply in these circumstances.

Proposed paragraph 16AAC(1) provides that the minimum penalties listed in proposed section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence was committed.

In this sense then, and with the additional factor that non-parole periods are not specified, the court still has some sentencing discretion in what would otherwise be a very strict mandatory sentencing framework. However, the Law Council nonetheless strongly opposes this Schedule of the Bill, noting that the imposition of ‘mandatory minimum sentences upon conviction for criminal offences imposes unacceptable restrictions on judicial discretion and independence, and undermines fundamental rule of law principles and human rights obligations’.[59]

A presumption against bail for serious child sex offences, second or subsequent offences (Schedule 7)

Existing section 15AA of the Crimes Act outlines circumstances where bail is not to be granted for specified Commonwealth offences, unless exceptional circumstances exist that justify release on bail. The specified offences are terrorism offences, treason and espionage offences, and circumstances where the death of a person is alleged to have been caused by conduct that is a physical element of the offence. Proposed section 15AAA, at item 3 of Schedule 7, will insert a presumption against the granting of bail for certain Commonwealth child sex offences. The new provision is intended to have the effect of both protecting children and preventing an alleged offender from continuing to use anonymous practices such ‘as encryption and virtual private network [which] makes the enforcement of conditions particularly difficult where that relates to internet offending’.[60]

Proposed section 15AAA will apply the presumption against a person charged with or convicted of:

a serious Commonwealth child sex offence listed in column 1 of the table in proposed section 16AAA (at item 2 of Schedule 6) or
an offence described in column 1 of the table in proposed subsection 16AAB(2) (at item 2 of Schedule 6), who has previously been convicted of a child sexual abuse offence.
Bail may only be granted to such people if the authority considering whether to grant bail is satisfied that circumstances exist that justify the grant. In making this determination, the bail authority must consider whether the person:
is likely to fail to appear at any proceedings for the offence
is likely to commit a further offence
would put at risk the safety of the community or cause a person harm
would be likely to conceal, fabricate or destroy evidence or intimidate a witness
was aged 18 years or over when the offence was committed
has pleaded guilty, and is unlikely to undertake rehabilitation or treatment while on bail (proposed subsection 15AAA(2)).

The bail authority is only required to take these factors into account to the extent that they are relevant and known to the authority. The bail authority may also take other relevant factors into account in deciding whether circumstances exist to support the grant of bail.

The Statement of Compatibility with Human Rights outlines that the given the ‘proliferation of different types of online child sexual abuse and communication technologies allowing for obfuscation of online criminal conduct, it is particularly important to ensure that any risk is mitigated through appropriate conditions... This presumption [against bail] is rebuttable and provides judicial discretion as to determining whether a person’s risk on bail can be mitigated through appropriate conditions’.[61]

Amendments to Part IB of the Crimes Act relating to the sentencing of federal offenders (Schedule 8)

Section 16A of the Crimes Act outlines the matters to which a court is to have regard when passing a sentence for a federal offence. The list of matters in subsection 16A(2) includes the nature and circumstances of the offence; the personal circumstances of any victim of the offence; the degree to which the offender has cooperated with law enforcement; the need to ensure that the person is adequately punished, and others. Paragraph 16A(2)(g) requires the court to take into account a guilty plea and will be amended by item 1 of Schedule 8 to also require the timing of that guilty plea and the degree to which the plea resulted in any benefit to the community, or to any victim or witness to the offence to be taken into account by the sentencing court.

Item 2 of Schedule 8 will add a new factor to the list of considerations in subsection 16A(2), which will require the sentencing court to take into account whether the person’s standing in the community was used to aid in the commission of the offence. If that is the case, the court must regard it as aggravating the seriousness of the criminal behaviour constituting the offence (proposed paragraph 16A(2)(ma)). This amendment is intended to ‘capture scenarios where a person’s professional or community standing is used as an opportunity for the offender to abuse children’,[62] including medical practitioners, celebrities and professional sportspeople.

Item 3 will insert proposed new subsection 16A(2AAA), which prescribes a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing people for child sex offences. The court must take the following matters into account:

when making an order –whether to impose any conditions about rehabilitation or treatment options (proposed paragraph 16A(2AAA)(a))
in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program (proposed paragraph 16A(2AAA)(b)).

Increasingly there is evidence to suggest that the recidivism of child sex offenders can be reduced by rehabilitation programs within the prison environment:

Conventional wisdom has it that child sex offenders lurk among us until caught, and that they can never be cured. But psychologists around the world who have dedicated their careers to studying and treating sexually abusive behaviours have discovered over decades of research that we are only partly right.

While there is no pill that can cure child sex offenders, there are therapeutic methods that can help prevent them from reoffending. Corrections Victoria staff and psychologists who treat sex offenders in the community say that therapeutic treatment can halve the rate of recidivism.[63]

The provision of resources and investment into research on treatment programs is particularly important as more cases are brought to the courts following the exposure of child sexual abuse through the Royal Commission’s inquiries.

Aggravated sentencing factors for various sexual offences against children (Schedule 9)

The Bill also introduces new aggravating factors that a court must take into account when sentencing an offender for a relevant offence. Items 3 and 4 in Schedule 9 will insert proposed new sections 471.29A and 474.29AA into the Criminal Code. These are mirror provisions that will apply when a court is sentencing an offender for an offence under Subdivision C of Division 471 or Subdivision F of Division 474 of the Criminal Code. (These subdivisions contain offences relating to the use of a postal service or a carriage service involving sexual activity with a child.) When determining the sentence for a relevant offence, the sentencing court must consider:

(a) the age and maturity of the victim or the intended victim of the offence
(b) if the victim or intended victim of the offence was under 10 – that fact as a reason for aggravating the seriousness of the criminal behaviour and
(c) the number of people involved in the commission of the offence.

These matters are additional to other matters that the sentencing court must consider, including those in section 16A of the Crimes Act.[64]

Minster Keenan stated at the introduction of the Bill that ‘these measures send a clear message—this government will not tolerate such appalling and disgusting acts committed against children’.[65]

Presumption in favour of cumulative sentences for Commonwealth child sex offenders (Schedule 10)

Schedule 10 will introduce a presumption in favour of cumulative sentences where a person is being sentenced for multiple Commonwealth chid sex offences or a combination of Commonwealth and state or territory child sex offences. Section 19 of the Crimes Act deals with the setting of cumulative, partly cumulative and concurrent sentences, but does not specify when a particular approach is appropriate. The Act does not define these terms but the Butterworths Concise Australian Legal Dictionary defines them as follows:

Cumulative sentence: A punishment or term of imprisonment which commences at the expiration of another punishment or term of imprisonment.
Concurrent sentence: A sentence that is served at the same time as another sentence.[66]

The Explanatory Memorandum describes the objective of the presumption ‘is to act as a yardstick against which to examine a proposed sentence of an offender for multiple child sex offences’.[67] This Schedule takes a different approach from what was recommended by the Royal Commission, which dealt with cumulative and concurrent sentencing, recommending that:

State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.[68]

Conditional release of offenders after conviction (Schedule 11)

The Bill seeks to limit the discretion of the sentencing judge, in addition to the prescription of minimum penalties, by limiting the circumstances in which a judge may order the immediate release of a person convicted of a Commonwealth child sex offence on a recognizance release order. Section 19AC of the Crimes Act provides that a court that imposes a sentence of imprisonment of three years or less on a federal offender must generally make a recognizance release order in respect of that sentence.[69] (The court may decline to make a recognizance release order if it is satisfied that it would not be appropriate to do so, having regard to the nature and circumstances of the offence and the offender’s criminal history. In that case, the court must state and record its reasons for declining to make a recognizance release order.)[70]

A recognizance release order is made under paragraph 20(1)(b) of the Crimes Act.[71] That provision currently allows a sentencing court to sentence an offender to a term of imprisonment and make an order directing the offender to be released, upon giving security, either immediately or after he or she has served a specified term of imprisonment. Under the current provision, the decision as to whether to order release immediately (or not) is entirely at the discretion of the sentencing court.

Item 1 of Schedule 11 will substitute existing 20(1)(b) of the Crimes Act with a provision that will limit the court’s ability to order the immediate release of an offender on a recognizance release order where at least one of the offences for which the person is being sentenced is a Commonwealth child sex offence. The court will only be able to order the immediate release of such an offender in ‘exceptional circumstances’. The current unfettered discretion of the court will remain in relation to offenders who are not convicted of a child sex offence.

Together with the prescribed minimum penalties in Schedule 6, the Bill is proposing to restrict the exercise of discretion by the judiciary in sentencing child sex offenders, other than in ‘exceptional circumstances’. It is not immediately apparent what those exceptional circumstances might be but could include the mental capacity of the offender, including whether the offender suffers from an intellectual disability. An additional sentencing option in such circumstances is provided for by Schedule 12 of the Bill, which prescribes a sentencing alternative by way of a ‘residential treatment order’.

The LCA is critical of this Schedule, recommending that it be removed from the Bill:

... [M]aintaining 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 circumstance of an individual case.[72]

Where the court makes a recognizance release order for a child sex offender (whether ordering immediate release or release after serving a term of imprisonment) the order must, under proposed subsection 20(1B) include conditions that require the offender to:

be subject to the supervision of a probation officer
obey all reasonable directions of the probation officer
not travel interstate or overseas without the written permission of the probation officer and
undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Residential treatment orders for offenders suffering a mental illness, intellectual disability (Schedule 12)

Subsection 20AB(1AA) of the Crimes Act prescribes alternative non-custodial sentences that are frequently used in state and territory jurisdictions, which may be imposed on federal offenders. These include community correction orders, intensive correction orders, a drug or alcohol treatment order or rehabilitative order. Item 1 of Schedule 12 proposes to add ‘residential treatment orders’ to allow the courts to have the discretion to access such orders that have been designed to specifically meet the needs of certain classes of offenders. This amendment is relevant to all federal offenders, not only child sex offenders. The new subparagraph follows from the residential treatment orders available in Victoria under section 82AA of the Sentencing Act 1991 (Vic), which allows a sentencing court to order that an offender be detained for a period of up to five years if the offender has been convicted of a ‘serious offence’ (including murder and kidnapping) and specified sexual assault offences. Such orders are intended to be applied to offenders who have an intellectual disability.[73]

Maintaining the security of reports, documents and information from being disclosed (Schedule 13)

Division 10 of the Part IB of the Crimes Act contains miscellaneous provisions relating to the sentencing, imprisonment and release of federal offenders.

The decision whether to release a federal offender on parole at the end of their non-parole period is made by the Attorney-General or his or her delegate (section 19AL). If the Attorney-General decides not to release an offender on parole, the Attorney-General must give the offender written notice of the refusal, which must include a statement of reasons (paragraph 19AL(2)(a)). This aims to provide the offender procedural fairness. Items 1 to 3 of Schedule 13 will amend subsection 19AL to clarify that the requirement to provide reasons to an offender in the parole refusal notice is subject to proposed section 22B.

Item 4 of Schedule 13 will insert proposed section 22B, which will provide that nothing in Part IB requires reports, documents or information to be provided to a person if the Attorney-General considers that such provision would be likely to prejudice national security. The Explanatory Memorandum notes that this could be reports prepared by an intelligence agency or corrective services agency, file notes or submissions to the Attorney-General.[74] Further:

... although this amendment limits the procedural fairness afforded to federal offenders, it only does so to the extent necessary and proportional to protect national security and the public interest.[75]

The application of this provision could result in an offender having little, or no, substantive information to respond to when refused parole, despite a record of good behaviour in prison. The Law Council recommended that in national security sensitive cases, ‘the subject should be provided sufficient information about the allegations against them to enable effective instructions to be given in relation to those allegations. A special advocate should also be appointed in such cases that can be privy to such sensitive information’.[76]

Revocation of parole order or licence, ‘clean street time’ (Schedule 14)

The Bill will ensure that once an offender’s parole has been revoked, they will serve a period of time in custody. Section 19AQ deals with the automatic revocation of a federal offender’s parole or licence if they are sentenced to a term of imprisonment of more than three months for a federal, state or territory offence that they committed during the federal parole period. Currently, in these circumstances the parole order or licence is automatically revoked on the date of sentencing and the person becomes liable to serve the part of the federal sentence that remained when they were released on parole, reduced for ‘clean street’ time in accordance with the law of the relevant state or territory (subsection 19AA(2)).

Proposed new section 19AQ will require the court, when sentencing an offender for subsequent offences, to determine the time when the parole order or licence is taken to be revoked by determining when the new offence was committed. In addition, rather than applying state and territory ‘clean street’ time provisions, the court will now be required to apply proposed paragraph 19AQ(4)(b), which allows the person’s sentence to be reduced by the period between release on parole or licence and the time that the new offence is taken to have been committed. The amendments will reduce the amount of so called ‘clean street time’ that can be credited against the outstanding sentence following commission of another offence.

Definition of child sexual abuse and other consequential amendments (Schedule 15)

The Government proposes to repeal references to ‘child pornography material’ and replace it with a broader definition of ‘child abuse material’ across the Crimes Act, the Criminal Code, Customs Act 1901 and the Telecommunications (Interception and Access) Act 1997, for the reason:

... [a]ttaching the term “pornography” to this material proves to be a barrier in conveying the seriousness and gravity of the offences depicted in that material, as well as the harm faced by the children in that material . The inference remains that “pornography” is associated with consenting subjects, which is entirely inappropriate given this behaviour involves the abuse and corruption of children.[77]

Prima facie this does not seem to raise significant concerns. However, in one submission to the Senate Inquiry on the Bill, it was deemed to be the ‘worst’ aspect of the Bill, with the submitter arguing that there is a ‘very good reason for the distinction’:

The removal of the distinction should be scrapped. Treating the two the same will inevitably lead to perverse and unjust outcomes. Whilst there may be reasons for a presumption that “child abuse material” deserves a stiff sentence, judges need the leeway to treat “mere” “child pornography” differently. The difference in the harm caused in the creation of the two types of material is drastic, and the law needs to reflect that.[78]

[1]. M Dreyfus, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, House of Representatives, Debates, (proof), 18 October 2017, p. 91.

[2]. C O’Neil, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, House of Representatives, Debates, (proof), 18 October 2017, p. 89.

[3]. Parliament of Australia, ‘Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 homepage’, Australian Parliament website.

[4]. Senate Selection of Bills Committee, Report, 11, 2017, The Senate, Canberra, 14 September 2017, p. 6.

[5]. Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991); United Nations Convention Against Transnational Organised Crime, done in New York 15 November 2000, [2004] ATS 12 (entered into force for Australia 26 June 2004); Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, done at New York on 15 November 2000, [2005] ATS 27 (entered into force for Australia 14 October 2005); International Convention to Suppress the Slave Trade and Slavery, done in Geneva on 25 September 1926, [1927] ATS 11 (entered into force for Australia 18 June 1927).

[6]. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, done in New York 25 May 2000, [2007] ATS 6 (entered into force for Australia 8 February 2007).

[7]. Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017, p. 7. The Constitutional system in Australia enables the Executive Government to commit Australia to international treaties and conventions at the international level. The External Affairs power in the Constitution (section 51(xxix)) then enables Parliament to enact legislation that may otherwise be outside its legislative power.

[8]. H Boxall, AM Tomison and S Hulme, Historical review of sexual offence and child sexual abuse legislation in Australia: 1788–2013, prepared by the Australian Institute of Criminology for the Royal Commission into Institutional Responses to Child Sexual Abuse, AIC, Canberra, 2014. The Commonwealth offences are outlined at pp. 92–95.

[9]. C Bickers, ‘Derryn Hinch defends choice to name paedophile cop in Parliament’, news.com.au, 13 September 2017.

[10]. Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017.

[11]. Attorney-General’s Department, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 4 October 2017, pp. 2–3.

[12]. G Thompson and MA Jolley, 'Unholy silence', Four Corners, Australian Broadcasting Corporation (ABC), 2 July 2012.

[13]. J Gillard (Prime Minister), Establishment of Royal Commission Into child sexual abuse, media release, 12 November 2012.

[14]. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal justice report, Sydney, August 2017.

[15]. Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), Report on Criminal Justice released, media release, 14 August 2017.

[16]. Senate Selection of Bills Committee, Report, 11, op. cit., p. 6.

[17]. Senate Legal and Constitutional Affairs Committee, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], October 2017, pp. 29–31.

[18]. Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 6 October 2017, p. 14.

[19]. Senate Legal and Constitutional Affairs Committee, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], October 2017, pp. 33–36.

[20]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 12, 2017, The Senate, 18 October 2017, p. 7.

[21]. Ibid., pp. 10–16.

[22]. Senate Legal and Constitutional Affairs Committee, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], October 2017, p. 35.

[23]. Ibid., p. 33.

[24]. M Dreyfus, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, op. cit., p. 91.

[25]. C O’Neil, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, op. cit., p. 89.

[26]. Law Council of Australia (LCA), Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 6 October 2017, p. 6.

[27]. Ibid., p. 5.

[28]. Ibid., pp. 12–13.

[29]. Ibid., p. 10.

[30]. L Bartels, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 28 September 2017, p. 2.

[31]. Uniting Church of Australia, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 29 September 2017, p. 1.

[32]. See the Inquiry’s Submissions page.

[33]. Attorney-General’s Department, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 4 October 2017.

[34]. Explanatory Memorandum, op. cit., p. 4.

[35]. Ibid.

[36]. The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill.

[37]. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, done in New York 25 May 2000, [2007] ATS 6 (entered into force for Australia 8 February 2007).

[38]. Explanatory Memorandum, op. cit., p. 5.

[39]. Parliamentary Joint Committee on Human Rights (PJCHR), Report, 11, 2017, 17 October2017, pp.2–15.

[40]. Explanatory Memorandum, op. cit., p. 17.

[41]. Ibid., p. 9.

[42]. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, House of Representatives, Debates, 13 September 2017, p. 10175.

[43]. Ibid.

[44]. Explanatory Memorandum, op. cit., p. 18.

[45]. Ibid.

[46]. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal justice report, op. cit., recommendation 9(c), p. 117. See also recommendation 9(h).

[47]. Explanatory Memorandum, op. cit., p. 19.

[48]. Australian Law Reform Commission (ALRC), Uniform evidence law, ALRC report, 102, Sydney, 2005, para. 5.74.

[49]. The provision follows section 272.8, prohibiting sexual intercourse with a child outside Australia. The Law Council of Australia (LCA) has further suggested that a similar amendment to that proposed by item 1 of Schedule 4 should be made to section 272.8 of the Criminal Code for consistency. See LCA, Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], op. cit., p. 8.

[50]. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, op. cit., p. 10175.

[51]. This is necessary because of the undercover police work that is undertaken online in child sex cases. See, for example, this report on Task Force Argos, an ongoing investigation of online child exploitation and abuse undertaken by the Queensland Police Service.

[52]. Section 474.22 sets out an offence for using a carriage service for child abuse material and section 474.23 sets out an offence for possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service.

[53]. Explanatory Memorandum, op. cit., p. 36.

[54]. L Bartels, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], 28 September 2017, p. 3.

[55]. Attorney-General’s Department, Submission, Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], Annexure B.

[56]. Commonwealth Sentencing Database, (subscription only).

[57]. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, op. cit.

[58]. LCA, Mandatory sentencing, Policy discussion paper, May 2014, p. 9.

[59]. LCA, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provision], 6 October 2017, p. 10.

[60]. Explanatory Memorandum, op. cit., p. 41.

[61]. Explanatory Memorandum, op. cit., p. 10.

[62]. Ibid., p. 44.

[63]. J Lee, ‘Can a child sexual offender be cured?’, The Age, (online edition), 17 June 2017.

[64]. Proposed subsections 471.29A(3) and 474.29AA(3).

[65]. M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017’, op. cit., p. 10175.

[66]. As referenced by the National Judicial College of Australia ‘Cumulative and concurrent sentences’, NJCA website, 24 April 2014.

[67]. Explanatory Memorandum, op. cit., p. 48.

[68]. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal justice report, op. cit., Recommendation 75, p. 100.

[69]. The court is only permitted to impose a non-parole period when sentencing a federal offender to more than three years imprisonment (section 19AB of the Crimes Act).

[70]. Crimes Act, subsection 19AC(4

[71]. See definition of ‘recognizance release order’ in subsection 16(1) of the Crimes Act.

[72]. LCA, Submission, op. cit., p.18.

[73]. Victorian sentencing manual, ‘Residential treatment order’, Judicial College of Victoria, Melbourne, updated 3 March 2017.

[74]. Explanatory Memorandum, op. cit., p. 51.

[75]. Explanatory Memorandum, op. cit., p. 51.

[76]. LCA, Submission, op. cit., p. 28. Lucy Line and David Plater explain: ‘Special advocates are also known as special counsel. They are appointed as representatives of an accused’s interests, but are not representatives of the accused in the same fulsome sense as the accused’s own solicitors and counsel. The relationship between the special advocate and the accused is quite different to that between the accused and his or her own lawyer. The special advocate cannot pass any sensitive information onto the accused and is not responsible to, and cannot take instructions from the accused’. L Line and D Plater, 'Police, prosecutors and ex parte public interest immunity claims: the use of special advocates in Australia', University of Tasmania Law Review, 33(2), 2014, p. 255. Further note, the authors were unable to locate an Australian criminal trial in which a special advocate had been appointed.

[77]. Explanatory Memorandum, op. cit., p. 56.

[78]. E Bromberg, Submission, to Senate Legal and Constitutional Affairs Committee, Inquiry into the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 [Provisions], p. 1.

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