Chapter 1Introduction

1.1On 29 February 2024, the Senate referred the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 24 April 2024.[1]

1.2The referral of the bill followed a recommendation of the Senate Standing Committee for the Selection of Bills.[2] Appendix 2 to that report suggested that an inquiry into the bill was required ‘[t]o address stakeholders [sic] concerns about the Bill and ensure thorough scrutiny’.[3]

Conduct of the inquiry

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 22 March 2024. The committee received 36 submissions, which are listed at Appendix 1.

1.4The committee held a public hearing in Canberra on 12 April 2024. A list of witnesses who attended the hearing is provided at Appendix 2.

1.5The committee particularly thanks victim-survivors who contributed to submissions or gave evidence to this inquiry.

1.6The committee thanks those individuals and organisations who made submissions and gave evidence at the hearing.

Structure of the report

1.7This report comprises two chapters:

Chapter 1 outlines the administrative details of the inquiry, background to the inquiry, and the key provisions of the bill; and

Chapter 2 examines key issues raised by submitters and witnesses and sets out the committee’s views and recommendations in relation to the bill.

Definitions

1.8The bill uses the term ‘vulnerable persons’, which is defined in the bill as follows:

(a)for a child proceeding—a child witness;

(b)for a vulnerable adult proceeding—a vulnerable adult complainant;

(c)for a special witness proceeding—a special witness [to an evidence recording hearing].[4]

1.9Women’s Legal Services Australia objected to the use of the term ‘vulnerable’ as, in its view:

It is important that language is strengths-based, focuses on accountability and is language with which a victim-survivor identifies. People are not vulnerable simply because, for example, their age, a cognitive impairment, or a traumatic experience; it is systems structures, discrimination, and other barriers to equality, justice and safety that must be challenged.[5]

1.10The terms ‘vulnerable person’ and ‘victim-survivor’ are used interchangeably in this report.

Purpose of the bill

1.11The bill would amend the Crimes Act 1914 (Crimes Act) to provide protections to vulnerable people who participate in Commonwealth criminal proceedings related to sexual violence.

1.12The bill would implement recommendations 52, 53, 56, and 61 of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).[6]

1.13Those recommendations are as follows:

Recommendation 52:

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

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

(b)in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re‑examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself.[7]

Recommendation 53:

Full prerecording should be made available for:

(a)all complainants in child sexual abuse prosecutions;

(b)any other witnesses who are children or vulnerable adults;

(c)any other prosecution witness that the prosecution considers necessary.[8]

Recommendation 56:

State and territory governments should introduce legislation to require the audiovisual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual abuse prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness’s evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a prerecorded hearing.[9]

Recommendation 61:

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

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

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

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

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

(e)the judge and counsel removing their wigs and gowns.[10]

1.14In introducing the bill to the Parliament the Attorney-General, the Hon Mark Dreyfus KC MP, recognised that ‘[s]exual assault can have devastating, cumulative and long-lasting effects on the lives of victims and survivors, their families and communities’.[11] He stated that the government continues to be ‘deeply committed to improving criminal justice responses to sexual assault’.[12]

1.15The Attorney-General outlined some of the work that the government has underway to strengthen the criminal justice response to sexual violence:

In the 2023­‑24 budget, the Australian government announced that it is investing $14.7 million to strengthen the way the criminal justice system responds to sexual assault to prevent further harm to victims and survivors. This includes an Australian Law Reform Commission inquiry into justice responses to sexual violence; a lived experience expert advisory group to support that inquiry; and a ministerial-level national roundtable to drive nationwide, cross-sector collaboration and inform the terms of that inquiry.[13]

1.16In his overview of the bill, the Attorney-General argued that it would support victim-survivors of sexual violence by:

expanding the scope of existing offences to which additional protections apply;

addressing barriers that may deter witnesses from giving evidence; and

ensuring that victims and survivors can speak out about their experiences should they wish to do so.[14]

1.17The bill would provide vulnerable witnesses with access to ‘protections for offences that occurred while they were children, recognising that it may take many years for victims and survivors to disclose their abuse’.[15]

1.18It would also make evidence about a vulnerable person’s sexual reputation inadmissible and put greater restrictions on the admissibility of evidence related to sexual experience.[16] The Attorney-General argued that evidence of this nature:

…is ordinarily too far removed from evidence of the alleged crime for its admission to be in the interests of justice, and can retraumatise vulnerable persons by victim blaming. A court will therefore need to be satisfied that sexual experience evidence is substantially relevant to the proceedings, and to consider whether its probative value outweighs any distress, humiliation or embarrassment to the vulnerable person.[17]

1.19Vulnerable persons will also be supported in giving evidence in legal proceedings, the Attorney-General explained that the bill would:

…allow for a vulnerable person to give evidence by way of video or audio recording, and for evidence to be recorded for use at subsequent proceedings. Importantly, witnesses will not be required to see the defendant when giving recorded evidence, and it will be an offence to intentionally copy, damage, alter, possess or supply recordings of the evidence. This aims to reduce the risk of retraumatising victims and survivors and will enable vulnerable persons to give evidence in a safe, controlled format.[18]

1.20Defendants would be provided with procedural fairness as they would ‘be provided with the opportunity to observe the evidence recording hearing (as they would be during an ordinary hearing)’.[19] They would also be given ‘access to relevant evidence recordings’.[20]

1.21Victim-survivors would also be granted further avenues to:

…speak out, if they choose to do so. The bill makes it clear that the current restriction on publishing material that identifies another person as a child witness, child complainant or vulnerable adult complainant in a proceeding does not apply to a person who publishes material that identifies themselves.[21]

1.22In addition to those provisions, the voices of victim-survivors would be further supported by the removal of ‘the requirement for the proceedings to be finalised before such publication may occur’.[22] The bill would also provide clarification ‘that there is no restriction on identifying a vulnerable person who is deceased’.[23]

1.23Beyond supporting victim-survivors to speak out directly, the bill would ‘present an opportunity for the public to gain a better understanding of sexual violence from the perspective of victims and survivors’.[24]

1.24The bill would ‘give victims and survivors back their voice, as well as the agency and power to control their own stories and experiences’.[25] They would have the power and agency to speak out, should they choose to do so, while also providing them with the option to maintain their privacy, should they choose to do that.[26] The bill would ensure ‘that the choice is that of the individual, and that they are empowered, but not obliged, to tell their story’.[27]

1.25In conclusion, the Attorney-General argued that the bill would ‘minimise the risk of retraumatisation, and provide greater assurance that vulnerable persons will be treated with appropriate sensitivity when appearing as witnesses or complainants in criminal proceedings’.[28]

Key provisions of the bill

1.26The bill would amend Part IAD of the Crimes Act to:

expand the protections available to vulnerable persons in proceedings involving children;

expand the protections available to vulnerable persons in proceedings involving adult complainants;

strengthen protections for vulnerable persons in proceedings by expanding the definition of ‘child complainant’ and ‘child witness’;

reduce the risk of re-traumatising complainants or witnesses during proceedings;

introduce an evidence recording hearing mechanism;

clarify the rules around the recording of evidence given in person;

ensure vulnerable persons have the right to an interpreter during proceedings; and

expand the protections against the publication of matters that identify another person as a vulnerable person.

Provisions for the protection of vulnerable persons in proceedings involving children

1.27The bill would expand the protections available to vulnerable persons in certain criminal proceedings involving children.

1.28In addition to the offences already listed in the Crimes Act, those would include:

crimes against humanity;[29]

war crimes;[30]

crimes against the administration of the justice of the International Criminal Court (ICC);[31]

torture;[32] and

drug offences.[33]

1.29The Explanatory Memorandum to the bill (EM) explains that these provisions are designed to provide greater protection to:

…vulnerable persons by recognising the broader range of offences in the Criminal Code that may involve children and vulnerable persons, and to whom the special rules in part IAD of the Crimes Act should also apply.[34]

Provisions for the protection of vulnerable persons in proceedings involving adult complainants

1.30The bill would expand the protections available to vulnerable persons in certain criminal proceedings involving adult complainants.

1.31Those criminal proceedings would include:

sexual assault of United Nations and associated personnel;[35]

crimes against humanity;[36]

war crimes;[37]

crimes against the administration of the justice of the ICC;[38]

child sex offences outside Australia;[39]

offences involving child abuse material outside of Australia;[40]

offences relating to the protection of children;[41]

torture;[42]

drug offences involving children;[43]

offences relating to the use of postal or similar services involving sexual activity with a person under 16;[44]

offences relating to the use of carriage services involving sexual activity with, or harm to, a person under 16;[45]

certain criminal offences committed in areas adjacent to the Australian coast;[46]

certain criminal offences committed onboard aircraft engaged in certain flights;[47]

aggravated offences relating to work conducted by non-citizens;[48] and

sexual offences specified in the regulations.[49]

1.32The EM explains that these provisions are designed ‘to more comprehensively protect vulnerable persons’.[50]

Definition of child complainant and child witness

1.33The bill would repeal the existing definitions of ‘child complainant’ and ‘child witness’.[51]

1.34The bill would expand the definition of child complainant ‘to include a person who is alleged to be a victim of an offence and who was a child at the time the offence was alleged to have been committed’.[52] The new definition would mean that the person would be a child complainant, ‘even if that person is no longer a child at the time of the proceeding’.[53]

1.35The bill would expand the definition of child witness ‘to include a witness in the proceeding who was a child at the time the offence was alleged to have been committed’.[54]

1.36According to the EM, the new definitions:

…are intended to strengthen protections for vulnerable persons who are complainants and/or witnesses in criminal proceedings by expanding protections under the Crimes Act to include those who were children at the time the offence was alleged to have been committed.[55]

Reducing the risk of re-traumatisation during proceedings

1.37The bill would make two amendments to the admissibility of evidence to reduce the risk of re-traumatising vulnerable adult complainants.

1.38The bill would make evidence related to ‘a vulnerable adult complainant’s reputation with respect to sexual activities…inadmissible in a vulnerable adult proceeding’.[56]

1.39According to the EM, the inadmissibility of a vulnerable adult complainant’s sexual reputation would assist in ‘reducing the re-traumatisation of complainants and/or witnesses during proceedings’.[57] The EM further suggests that ‘such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in circumstance’.[58]

1.40Evidence related to a vulnerable adult complainant’s sexual experience would also be:

…inadmissible in a vulnerable adult proceeding, unless:

(a)the court gives leave; and

(b)the evidence is of sexual activities with the defendant in the proceeding; and

(c)the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.[59]

1.41Leave would only be granted by the court if it is satisfied that the evidence is ‘substantially relevant’ to the proceeding or ‘has substantial probative value’.[60] The EM explains that the court may grant leave ‘if the evidence relates to the credibility of the vulnerable adult complainant and is to be adduced in cross‑examination of the complainant’.[61]

1.42The evidence could not be used to make inferences about ‘the vulnerable adult complainant’s general disposition’.[62]

1.43The court would be required to consider the following when determining whether the evidence has ‘substantial probative value’:

(a)whether the evidence tends to prove that the vulnerable adult complainant knowingly or recklessly made a false representation when the complainant was under an obligation to tell the truth;

(b)the period that has elapsed since the acts or events to which the evidence relates were done or occurred; and

(c)whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant.[63]

Evidence recording hearings

1.44The bill would introduce a process that would allow a vulnerable person to give evidence via a video or audio recording (an evidence recording hearing). That vulnerable person could be a child witness, a vulnerable adult complainant, or a special witness.[64] A court is able to declare someone to be a special witness if it is:

…satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:

(a)a disability; or

(b)intimidation, distress or emotional trauma arising from:

(i)the person’s age, cultural background or relationship to a party in the proceeding;

(ii)the nature of the evidence; or

(iii)some other relevant factor.[65]

1.45According to the EM, the introduction of the evidence recording hearing process would implement part of Theme 2 of the National Strategy and address recommendations 52, 53, 56, and 61 of the Royal Commission.[66]

1.46A court would be permitted, ‘if it is satisfied that it is in the interests of justice to do so, order a hearing (the evidence recording hearing) for the vulnerable person to give evidence’.[67] By ordering an evidence recording hearing, the court would reduce ‘the number of times a vulnerable person may be required to give evidence, as the court is able to tender this evidence in future proceedings’.[68]

1.47In making the decision to hold an evidence recording hearing:

…the court must take into account:

(a)whether each party to the proceeding has sufficient time to prepare for the evidence recording hearing and the proceeding; and

(b)the availability of:

(iv)the prosecutor in the proceeding; and

(v)if the defendant has a legal representative—the defendant’s legal representative; and

(vi)if the defendant does not have a legal representative—the defendant; and

(c)the circumstances and wishes of the vulnerable person; and

(d)the availability of court and other facilities to enable the video or audio recording of evidence given at the evidence recording hearing.[69]

1.48The evidence recording hearing may be held to obtain evidence in chief, or during cross-examination or re-examination.[70]

1.49The evidence in chief may be ‘a recording of an earlier interview’.[71] That recording is required to be of an interview conducted by a police constable or someone in a position specified in the regulation with the vulnerable person.[72] The EM explains that this amendment is designed to allow the admission of ‘evidence recorded by police prior to the commencement of proceedings…at an evidence recording hearing’.[73] The amendment would implement ‘recommendation 9 of the Royal Commission’s Report, that investigative interviews may be used as evidence in chief’.[74] The amendment:

…aims to reduce instances of re-traumatisation of vulnerable persons by ensuring they are not required to provide the same evidence on multiple occasions where it is practicable and equitable to avoid this occurring.[75]

1.50The Crimes Act currently requires a person to ‘be available for cross examination and re-examination if he or she gives evidence in chief by a video recording’.[76]

1.51The bill would require a vulnerable person to ‘be available for cross-examination and re-examination’ if a recording of an earlier interview conducted by police with them is admitted as evidence in chief.[77] The bill would enable that cross‑examination or re‑examination to be conducted through an evidence recording hearing.

1.52A person would commit an offence if they:

made a recording or some other copy of all or part of that recorded interview;[78]

do anything to dame or alter all or part of that recorded interview;[79]

possess or supply a recording, or part of a recording, of that interview;[80] or

possess or supply a copy of a recording, or part of a recording, of that interview.[81]

1.53If the person has ‘lawful authority or excuse’, they would not have committed an offence if they conducted any of the acts listed in paragraph 1.38.[82] The EM clarifies that the prosecution is required ‘to prove that the person was acting without lawful authority or excuse’.[83] The EM suggests that an example of ‘lawful authority or excuse…may include staff of the court who, in the course of their duties, must perform some version of the above activities with respect to the recording’.[84]

1.54The court may decide that it is appropriate to hold an evidence recording hearing on its ‘own initiative or on application by or on behalf of a party to the proceeding’.[85] An order to hold an evidence recording hearing may be ‘made at any time during the proceeding’.[86] The evidence recording hearing may be ‘held at any time during the proceeding (including after the trial in the proceeding has begun)’.[87]

1.55The court would have the power to adjourn proceedings to assist with the facilitation of an evidence recording hearing.[88]

1.56According to the EM, the court is not obligated to order an evidence recording hearing:

Where equipment is unavailable or there is some other reason why the court is not satisfied that it would be in the interests of justice, the court is under no obligation to order an evidence recording hearing.[89]

Conduct of evidence recording hearings

1.57The bill would require that, during an evidence recording hearing, the defendant must not be visible to the vulnerable person.[90] The defendant must be able to hear the vulnerable person giving evidence if they are in the same room or, if they are not in the same room, see and hear the vulnerable person via closed-circuit television (CCTV).[91]

1.58This amendment is designed to preserve ‘procedural fairness during proceedings by requiring that the defendant be provided the opportunity to observe the evidence recording hearing (as they would be during an ordinary hearing)’.[92] By allowing the vulnerable person to give evidence by CCTV, the ‘amendment is intended to address recommendation 61 of the Royal Commission’.[93]

1.59If a jury is involved in the proceeding, the jury must be absent from the evidence recording hearing.[94] If there is no jury, ‘the court may determine who is to be present at the evidence recording hearing’.[95]

1.60This amendment is designed to give the court ‘discretion over those who may attend the evidence recording hearing. For example, the court may determine that a support person or mental health professional are required’.[96] It would also address recommendation 61 of the Royal Commission.[97]

1.61The Crimes Act currently allows a vulnerable person to nominate an adult to accompany them while they are giving evidence in a proceeding.[98] The bill would amend that act to enable a vulnerable person to nominate an adult to accompany them while they are giving evidence in an evidence recording hearing.[99] The amendment would advance Theme 2 of the National Action Plan and address recommendation 61 of the Royal Commission.[100]

1.62At the evidence recording hearing, ‘a video or audio recording must be made of the evidence given by the vulnerable person’.[101] That recording is required to be:

(a)played at the hearing of the proceeding; and

(b)admitted in evidence as the vulnerable person’s evidence at the hearing as if the vulnerable person gave the evidence at the hearing in person.[102]

1.63The EM explains that the vulnerable person is to be given a choice between having their evidence recorded either through audio or audio-visual means to reduce their risk of re-traumatisation.[103] For some vulnerable persons, it may be re-traumatising to provide evidence in an audio-visual recording as their ‘trauma relates specifically to video recording’.[104]

1.64It is within the court’s discretion to ‘refuse to admit the whole or part of the contents of the recording’.[105] The EM clarifies that the intended purpose of this provision is to grant the court the power to edit the recording to exclude ‘evidence which it deems inadmissible’.[106]

Access to recordings and transcripts of evidence recording hearings

1.65The defendant and their legal representative are not ‘entitled to be given a video or audio recording’ of the evidence recording hearing or a copy of that recording.[107] They are to ‘be given reasonable access to the original recording in order to view or list to it’.[108] The purpose of this amendment ‘is to ensure that the defendant has the same opportunity as they would if the proceeding was held in person and the vulnerable person’s evidence given in person’.[109]

1.66The defendant and their legal representative are not permitted to:

(a)make a recording (or other copy) of the original recording; or

(b)do anything (whether directly or indirectly) that would damage or alter the original recording.[110]

1.67It would be a criminal offence to:

record or copy all or part of the original recording;[111]

damage or alter all or part of the original recording;[112]

possess or supply all or part of the original recording;[113] or

possess or supply a copy of all or part of the original recording.[114]

1.68If the person has ‘lawful authority or excuse’ to carry out any of the actions in paragraph 1.48, it would not be a criminal offence.[115] The EM clarifies that the prosecution is required ‘to prove that the person was acting without lawful authority or excuse’.[116] The EM suggests that an example of ‘lawful authority or excuse…may include staff of the court who, in the course of their duties, must perform some version of the above activities with respect to the recording’.[117]

1.69A transcript of the evidence recording hearing must be provided to ‘each party to the proceeding and the jury (if any)’.[118]

Vulnerable person need not give further evidence unless court orders

1.70A vulnerable person who provides evidence at an evidence recording hearing is not required to provide further evidence unless ordered by the court.[119] The court may make that order under its ‘own initiative or on application by or on behalf of a party to the proceeding, including the vulnerable person’.[120] The court would only order the provision of further evidence from a vulnerable person if it is considered:

…necessary:

(a)to clarify the vulnerable person’s evidence given in the evidence recording hearing;

(b)to give proper consideration of information or material that has become available since the evidence recording hearing; or

(c)in the interests of justice.[121]

1.71If the court decides that it is necessary for the vulnerable person to provide further evidence, it is required to:

(a)order that the evidence is to be given in an evidence recording hearing; and

(b)ensure that the vulnerable person is questioned in the hearing only about the matters specified in the order.[122]

Recording of evidence given in person

1.72The bill would require the court to:

…order that evidence given in person…be recorded if:

(a)the court is satisfied that the evidence could be used in another proceeding;

(b)the court is equipped with the necessary facilities; and

(c)the person agrees to the evidence being recorded.[123]

1.73The recording of evidence given in person would only apply to vulnerable persons.[124]

1.74The recording of evidence given in person may be either ‘a video or audio recording’.[125] The EM states that the recording of the evidence ‘may be recorded either by audio or audio-visual recording’.[126]

1.75According to the EM, the recording of evidence given in person would address recommendation 56 of the Royal Commission:

…which recommended that jurisdictions allow the recording of evidence no matter the mode of delivery, and for the use of this recorded evidence in subsequent proceedings, in an attempt to reduce the instances in which a vulnerable person had to recount potentially traumatic details.[127]

Right to an interpreter

1.76The bill would oblige the court to provide an interpreter to a vulnerable person if they are ‘unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in that language’.[128]

1.77The amendment would provide vulnerable people with ‘access to the resources that they require to be able to understand, and meaningfully engage in proceedings’.[129] It would improve ‘the fairness of proceedings by assisting all parties to understand and participate in the court process’.[130]

Publication identifying another person as a vulnerable person

1.78The Crimes Act currently contains an offence against a person who publishes a matter, without the leave of the court, that identifies another person in a proceeding as a:

child witness;

child complainant; or

vulnerable adult complainant.[131]

1.79The bill would include special witnesses to an evidence recording hearing in the list contained in paragraph 1.63.[132]

1.80A person who publishes identifying information of another person in a proceeding would also have committed an offence if the publication ‘is likely to lead to the vulnerable person being identified as such a person’ listed in paragraph 1.63.[133]

1.81The publication of identifying information is permitted in publications that are:

(a)‘an official publication in the course of, and for the purpose of, the proceeding; or

(b)a document prepared for use in particular legal proceedings’.[134]

1.82When deciding whether to give leave, the court would be required to give consideration to:

any trauma that the publication of identifying information could have to the vulnerable person;[135]

any reputational damage that the publication of identifying information could cause to the vulnerable person;[136] and

whether the purpose of the publication is to supply transcripts of the proceedings to genuinely interested persons or is for genuine research purposes.[137]

1.83The bill would expand these considerations to include trauma or reputational damage that could be incurred by another

1.84The bill would expand the kind of publications where identifying information would be permitted to be published.[138] The bill would permit the publication of a vulnerable person’s identifying information if:

it is published in an official publication connected to the proceeding;[139]

it is published in a document prepared for a particular proceeding;[140]

the vulnerable person is deceased;[141]

an adult vulnerable person gave informed consent to its publication, the publication accords with the limits imposed by them, and they were capable of consenting at the time consent was given;[142] or

a child vulnerable person gave informed consent to its publication, the publication accords with the limits imposed by them, and they made a supporting statement indicating that they had consented.[143]

1.85The bill would require a vulnerable person to give ‘informed consent to a publication’ as long as the person understands the:

options available to them, including that they are not required to give their consent; and

consequences of giving their consent.[144]

1.86For a child vulnerable person, the supporting statement would be required to be written.[145] The bill would require that such a statement is prepared by a medical practitioner or psychologist who agrees that the child understands what it means to be identified as a vulnerable person and the consequences that accompany the loss of anonymity.[146]

Consideration by other parliamentary committees

1.87When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

Senate Standing Committee for the Scrutiny of Bills

1.88The scrutiny committee considered the bill in its report of 28 February 2024.[147]

1.89The scrutiny committee raised concerns regarding the procedural fairness of aspects of evidence recording hearings and the reversal of the evidential burden of proof in relation to the new defences for publication of a vulnerable person’s identifying information.[148]

1.90The scrutiny committee welcomed the purpose of the bill, which is to reduce the risk of retraumatising vulnerable persons in Commonwealth criminal proceedings.[149]

1.91However, it raised concerns about the procedural fairness of a vulnerable person providing evidence in an evidence recording hearing and not being required to give further evidence unless the court orders it in certain circumstances.[150] The scrutiny committee stated that it is uncertain about what implications this ‘might have on the rights of an accused person to fully test evidence and material put against them at trial’.[151]

1.92In the scrutiny committee’s view, this uncertainty could be addressed by providing ‘a clear statement of the impact of the provision on the fair hearing rights of an accused person and an identification of any relevant balancing public interest considerations’.[152]

1.93The scrutiny committee sought advice from the Attorney-General on the implications the provision could have on the accused person’s right to procedural fairness and whether that right has been balanced against the purpose of the bill.[153]

1.94The scrutiny committee recognised that the evidential burden of proof would be reversed for the new defences that the bill would introduce in relation to the publication of a vulnerable person’s identifying information.[154]

1.95The scrutiny committee stated that ‘it is ordinarily the duty of the prosecution to prove all elements of an offence’.[155] That duty is an important part ‘of the right to be presumed innocent until proven guilty’.[156] Its reversal, which requires the defendant to disprove an offence, ‘interferes with this common law right’.[157]

1.96The scrutiny committee sought advice from the Attorney-General in relation to the justification for the reversal of the evidential burden of proof and whether an amendment could be made to the bill to remove that burden.[158]

1.97The Attorney-General provided his response on 25 March 2024. At the time of writing this report, that response had not been tabled.

Parliamentary Joint Committee on Human Rights

1.98The PJCHR considered the bill in its report of 20 March 2024.[159] It recognised that the ‘bill would promote a range of human rights and offer greater protection to vulnerable victim-survivors’.[160]

1.99The PJCHR indicated that the measure that would require the ‘an assessment of a person’s decision-making capacity and their capacity to give informed consent…engages and may limit the rights of persons with disability’.[161] As the statement of compatibility with human rights contained in the EM ‘was extremely brief, and did not identify the engagement of this right’ the committee was unable to reach a view on the measure.[162]

1.100The PJCHR recommended that the statement of compatibility with human rights contained in the EM be amended ‘to provide an assessment of the compatibility of the measures with the rights of persons with disability, particularly in relation to the right to equality before the law’.[163]

Note on references

1.101In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between proof and official transcripts.

Footnotes

[1]Journals of the Senate, No. 101, 29 February 2024, pp. 3037–3040.

[2]Senate Standing Committee for the Selection of Bills (selection of bills committee), Report No. 2 of2024, 29 February 2024, p. 1.

[3]Selection of bills committee, Report No. 2 of 2024, 29 February 2024, p. 4.

[4]Proposed section 15YDA of the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 (the bill). Note: a special witness is defined in subsection 15YAB(1) of the Crimes Act1914 (Crimes Act) as a person who ‘is unlikely to be able to satisfactorily give evidence in the ordinary manner because of a disability; intimidation, distress or emotional trauma arising from: the person’s age, cultural background or relationship to a party to the proceeding; the nature of the evidence; or some other factor’. See: Crimes Act, ss. 15YAB(1).

[5]Women’s Legal Services Australia, Submission 29, p. 6.

[6]The Explanatory Memorandum to the bill (EM), p. 1.

[7]Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), Criminal Justice Report: Parts VIII to X and Appendices, December 2017, p. 92.

[8]Royal Commission, Criminal Justice Report: Parts VIII to X and Appendices, December 2017, p. 92.

[9]Royal Commission, Criminal Justice Report: Parts VIII to X and Appendices, December 2017, p. 96.

[10]Royal Commission, Criminal Justice Report: Parts VIII to X and Appendices, December 2017, p. 102.

[11]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[12]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[13]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[14]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[15]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[16]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 14.

[17]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, pp. 14‑15.

[18]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[19]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[20]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[21]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[22]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[23]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[24]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7 February2024, p. 15.

[25]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[26]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[27]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[28]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 7February2024, p. 15.

[29]Proposed subparagraph 15Y(1)(ba)(i) of the bill. Note: crimes against humanity are defined in SubdivisionC of Division 268 of the Criminal Code Act 1995 (Criminal Code).

[30]Proposed subparagraph 15Y(1)(ba)(ii) of the bill. Note: war crimes are defined in Subdivisions D, E, F, G, and H of Division 268 of the Criminal Code.

[31]Proposed subparagraph 15Y(1)(ba)(iii) of the bill. Note: crimes against the administration of the justice of the International Criminal Court (ICC) are defined in subdivision J of Division 268 of the Criminal Code.

[32]Proposed paragraph 15Y(1)(cae) of the bill. Note: torture is defined in Division 274 of the Criminal Code.

[33]Proposed paragraph 15Y(1)(caf) of the bill. Note: drug offences involving children are defined in Division 309 of the Criminal Code.

[34]EM, p. 8.

[35]Proposed paragraph 15Y(2)(aa) of the bill. Note: the offence is defined in section 71.8 of the Criminal Code.

[36]Proposed subparagraph 15Y(2)(ab)(i) of the bill. Note: Note: crimes against humanity are defined in SubdivisionC of Division 268 of the Criminal Code.

[37]Proposed subparagraph 15Y(2)(ab)(ii) of the bill. Note: war crimes are defined in Subdivisions D, E, F, G, and H of Division 268 of the Criminal Code.

[38]Proposed subparagraph 15Y(2)(ab)(iii) of the bill. Note: crimes against the administration of the justice of the ICC are defined in subdivision J of Division 268 of the Criminal Code.

[39]Proposed paragraph 15Y(2)(ba) of the bill. Note: offences related to child sex offences outside Australia are defined in Division 272 of the Criminal Code.

[40]Proposed paragraph 15Y(2)(bb) of the bill. Note: offences involving child abuse material outside of Australia are defined in Division 273 of the Criminal Code.

[41]Proposed paragraph 15Y(2)(bc) of the bill. Note: offences relating to the protection of children are defined in Division 273B of the Criminal Code.

[42]Proposed paragraph 15Y(2)(bd) of the bill. Note: torture is defined in Division 274 of the Criminal Code.

[43]Proposed paragraph 15Y(2)(be) of the bill. Note: drug offences involving children are defined in Division 309 of the Criminal Code.

[44]Proposed paragraph 15Y(2)(bf) of the bill. Note: offences relating to the use of postal or similar services involving sexual activity with a person under 16 are outlined in Subdivisions B and C of Division 471 of the Criminal Code.

[45]Proposed paragraph 15Y(2)(bg) of the bill. Note: offences relating to the use of carriage services involving sexual activity with, or harm to, a person under 16 are outlined in Subdivisions D and F of Division 474 of the Criminal Code.

[46]Proposed paragraph 15Y(2)(bi) of the bill. Note: the adjacent area to the Australian coast is defined in section 14 of the Crimes at Sea Act 2000. The criminal offences relate to sexual offences, intimate image abuse, female genital mutilation, and sexual servitude outlined in Parts 3, 3A, 4, and 5, respectively, of the Crimes Act 1900 (ACT) (ACT Crimes Act).

[47]Proposed paragraph 15Y(2)(bj) of the bill. Note: the certain flights are defined in sections 14 and 15 of the Crimes (Aviation) Act 1991. The criminal offences relate to sexual offences, intimate image abuse, female genital mutilation, and sexual servitude outlined in Parts 3, 3A, 4, and 5, respectively, of the ACT Crimes Act.

[48]Proposed paragraph 15Y(2)(bk) of the bill. Note: the offences are outlined in Subdivision C of Division 12 of Part 2 of the Migration Act 1958.

[49]Proposed paragraph 15Y(2)(bl) of the bill.

[50]EM, p. 10.

[51]The terms are defined in section 15YA of the bill.

[52]EM, p. 10. Also see: proposed section 15YA of the bill.

[53]EM, p. 10. Also see: proposed section 15YA of the bill.

[54]EM, p. 10. Also see: proposed section 15YA of the bill.

[55]EM, p. 10.

[56]Proposed section 15YCA of the bill.

[57]EM, p. 13.

[58]EM, p. 13.

[59]Proposed subsection 15YCB(1) of the bill.

[60]Proposed subsection 15YCB(2) of the bill.

[61]EM, p. 13.

[62]Proposed subsection YCB(3) of the bill.

[63]Proposed subsection YCB(4) of the bill.

[64]Proposed subsection 15YDA of the bill.

[65]Crimes Act, ss. 15YAB(1).

[66]EM, p. 14.

[67]Proposed subsection 15YDB(1) of the bill.

[68]EM, p. 14.

[69]Proposed subsection 15YDB(2) of the bill.

[70]Proposed subsection 15YDB(3) of the bill.

[71]Proposed subsection 15YDB(5) of the bill.

[72]Crimes Act, ss. 15YM(1).

[73]EM, p. 15.

[74]EM, p. 15.

[75]EM, p. 15.

[76]Crimes Act, ss. 15YM(4). Note: Division 3 of the Crimes Act limits the conduct of cross‑examinations. For example, section 15YE disallows inappropriate or aggressive cross‑examination. Section 15YM is subject to the provisions of Division 3 of the Crimes Act.

[77]Proposed subsection 15YM(4) of the bill.

[78]Proposed subparagraph 15YM(5)(a)(i) of the bill.

[79]Proposed subparagraph 15YM(5)(a)(ii) of the bill.

[80]Proposed subparagraph 15YM(5)(a)(iii) of the bill.

[81]Proposed subparagraph 15YM(5)(a)(iv) of the bill.

[82]Proposed paragraph, 15YM(5)(b) of the bill.

[83]EM, p. 21.

[84]EM, p. 21.

[85]Proposed paragraph 15YDB(4)(a) of the bill.

[86]Proposed paragraph 15YDB(4)(b) of the bill.

[87]Proposed paragraph 15YDB(4)(c) of the bill.

[88]Proposed subsection 15YDB(6) of the bill.

[89]EM, p. 14.

[90]Proposed subsection 15YDC(1) of the bill.

[91]Proposed subsection 15YDC(2) of the bill.

[92]EM, p. 15.

[93]EM, p. 15.

[94]Proposed subsection 15YDC(3) of the bill.

[95]Proposed subsection 15YDC(4) of the bill.

[96]EM, p. 15.

[97]EM, p. 15.

[98]Crimes Act, ss. 15YO(1).

[99]Proposed subsection 15YO(1) of the bill.

[100]EM, p. 23.

[101]Proposed subsection 15YDD(1) of the bill.

[102]Proposed subsection 15YDD(2) of the bill.

[103]EM, p. 16.

[104]EM, p. 16.

[105]Proposed section 15DYE of the bill.

[106]EM, p. 16.

[107]Proposed subsection 15YDF(1) of the bill.

[108]Proposed subsection 15YDF(2) of the bill. Note: a note to the bill suggests that the defendant or their legal representative may require access to this recording ‘on more than one occasion’.

[109]EM, p. 16.

[110]Proposed subsection 15DYF(3) of the bill.

[111]Proposed subparagraph 15DYF(6)(a)(i) of the bill.

[112]Proposed subparagraph 15YDF(6)(a)(ii) of the bill.

[113]Proposed subparagraph 15YDF(6)(a)(iii) of the bill.

[114]Proposed subparagraph 15YDF(6)(a)(iv) of the bill.

[115]Proposed subsection YDF(6)(b) of the bill.

[116]EM, p. 17.

[117]EM, p. 17.

[118]Proposed subsection 15YDF(4) of the bill.

[119]Proposed subsection 15YDG(1) of the bill.

[120]Proposed subsection 15YDG(3) of the bill.

[121]Proposed subsection 15YDG(1) of the bill.

[122]Proposed subsection 15YDG(2) of the bill.

[123]Proposed subsection 15YLA(1) of the bill.

[124]Proposed subsection 15YLA(2) of the bill.

[125]Proposed subsection 15YLA(3) of the bill.

[126]EM, p. 20.

[127]EM, p. 20.

[128]Proposed section 15YOA of the bill.

[129]EM, p. 23.

[130]EM, p. 23.

[131]Crimes Act, ss. 15YR(1).

[132]Proposed subparagraph 15YR(1)(c)(iii) of the bill.

[133]Crimes Act, subpara. 15YR(1)(c)(ii).

[134]Crimes Act, ss. 15YR2.

[135]Crimes Act, para. 15YR(4)(a).

[136]Crimes Act, para. 15YR(4)(b).

[137]Crimes Act, para. 15YR(4)(c).

[138]Proposed subsection 15YR(2) of the bill.

[139]Proposed paragraph 15YR(2)(a) of the bill.

[140]Proposed paragraph 15YR(2)(b) of the bill.

[141]Proposed paragraph 15YR(2)(c) of the bill.

[142]Proposed paragraph 15YR(2)(d) of the bill.

[143]Proposed paragraph 15YR(2)(e) of the bill.

[144]Proposed subsection 15YR(2A) of the bill.

[145]Proposed paragraph 15YR(2B)(a) of the bill.

[146]Proposed subsection 15YR(2B) of the bill.

[147]Senate Standing Committee for the Scrutiny of Bills (scrutiny committee), Scrutiny Digest 3 of 2024, 28 February 2024, pp. 28-32.

[148]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, pp. 28­‑32.

[149]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 29.

[150]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 29; proposed subsection 15YDG(1) of the bill.

[151]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 29.

[152]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 29.

[153]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 29.

[154]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 30. Note: the reversal of the evidential burden of proof is articulated in a note to proposed subsection 15YR(2) of the bill.

[155]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 30.

[156]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 30.

[157]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 30.

[158]Scrutiny committee, Scrutiny Digest 3 of 2024, 28 February 2024, p. 32.

[159]Parliamentary Joint Committee on Human Rights (PJCHR), Report 2 of 2024, 20 March 2024, pp. 21-27.

[160]PJCHR, Report 2 of 2024, 20 March 2024, p. 22.

[161]PJCHR, Report 2 of 2024, 20 March 2024, p. 26.

[162]PJCHR, Report 2 0f 2024, 20 March 2024, p. 26.

[163]PJCHR, Report 2 of 2024, 20 March 2024, p. 27.