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Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2019

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General and Minister for Industrial Relations,

the Hon Christian Porter MP)

                                                                                                                                  

                                                                                                                                  



 

CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2019

General Outline

1.                 This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all stages of the criminal justice process, from bail and sentencing through to post-imprisonment options.

2.                 This Bill combats the evolving use of the internet in child sexual abuse and addresses community concern that the sentencing for child sex offences is not commensurate to the seriousness of these crimes.

3.                 This Bill amends the Crimes Act 1914 ( Crimes Act ) and the Criminal Code Act 1995 ( Criminal Code ), to:

·          insert community safety as a factor that can be taken into account to revoke the parole of a federal offender without notice;

·          remove the requirement to seek leave before a recorded interview of a vulnerable witness can be admitted as evidence in chief;  

·          prevent children and other vulnerable witnesses from being cross-examined at committal proceedings;

·          insert notes in the Criminal Code to provide additional clarity regarding the scope of conduct captured by child sex offences;

·          insert new aggravated offences for child sexual abuse that involves subjecting the child to cruel, inhuman or degrading treatment, or which causes the death of the child;

·          insert new offences to criminalise the “grooming” of third parties, including through the use of a carriage service, with the intention of making it easier to procure a child for sexual activity in Australia or overseas;

·          insert a new offence to criminalise the provision of an electronic service to facilitate dealings with child abuse material online;

·          insert additional aggravating sentencing factors that apply when a court is sentencing for certain child sex offences, including considering the age and maturity of the victim and the number of people involved in the commission of the offence;

·          increase the maximum penalties for certain Commonwealth child sex offences;  

·          introduce a mandatory minimum sentencing scheme to apply to the Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender;

·          insert a presumption against bail for Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender;

·          make it an aggravating factor in sentencing if a federal offender used their standing in the community to assist in the commission of an offence;

·          ensure that when sentencing a Commonwealth child sex offender, the court must have regard to the objective of rehabilitating the person, including by considering whether to impose any conditions about rehabilitation and treatment and considering if the length of sentence is sufficient for the person to undertake a rehabilitation program while in custody;

·          insert a presumption in favour of cumulative sentences for Commonwealth child sex offences;

·          insert a presumption in favour of Commonwealth child sex offenders serving an actual term of imprisonment;

·          require that if a court is releasing a Commonwealth child sex offender on a recognizance release order, the offender must be supervised in the community, and undertake such treatment and rehabilitation programs as their probation officer directs;

·          add residential treatment orders as an additional sentencing alternative to allow intellectually disabled offenders to receive access to specialised treatment options;

·          reduce the amount of ‘clean street time’ that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and license; and

·          require a period of time to be served in custody if a federal offender’s parole order is revoked.

FINANCIAL IMPACT

4.                 The financial impact of this Bill is largely limited to the costs associated with housing federal prisoners on remand and sentence.

5.                 The Commonwealth does not own or operate any prisons and federal prisoners are currently housed in state and territory prisons. Convicted federal offenders comprise approximately 3 percent of Australia’s total prison population while convicted federal sex offenders comprise approximately 0.4 percent of that population. As such, the overall financial impact on states and territories will be negligible. There will be some increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences, and these costs will be absorbed.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2019

6.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

7.                 This Bill is designed to protect the rights of children, in particular the right of children to be protected from sexual abuse. The measures adopted in the Bill are both proportionate and appropriate to address the risks faced by children.

Human rights implications

8.                 The human rights and freedoms engaged by the Bill fall under the following conventions that Australia is a State Party to:

·          Convention on the Rights of the Child [1991] ATS 4 (CRC);

·          Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (CEDAW); and

·          International Covenant on Civil and Political Rights [1976] ATS 5 (ICCPR).

9.                 The measures in the Bill promote the principles underpinning, and the fundamental rights and freedoms protected by, the CRC including:

·          the best interests of the child as a primary consideration (Article 3);

·          the right of the child to be protected from all forms of physical and mental violence, including sexual abuse (Articles 19 and 34); 

·          the right of a child to be heard in judicial proceedings (Article 12); and

·          the right of the child not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37).

10.             The Bill also advances measures that State Parties have undertaken to implement under the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), which elaborates on Article 34 of the CRC 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

·          strengthening laws to prevent child sexual exploitation offences (Article 9).

11.             The Bill also advances Article 6 of the CEDAW which provides that States Parties shall take all appropriate measures to suppress all forms of trafficking in women.

12.             The measures in the Bill may engage the following ICCPR rights:

·          right to liberty and freedom from arbitrary detention and the prohibition against a general rule that persons awaiting trial be detained in custody (Article 9);

·          that penitentiary systems shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation (Article 10(3));

·          right to liberty of movement and freedom to choose one’s residence (Article 12(1));

·          right to a fair hearing in a suit of law (Articles 14(1) and 14(1)(e));

·          right to the presumption of innocence (Article 14(2)); and

·          freedom of expression (Articles 19(2) and 19(3)).

The best interests of the child (Article 3 CRC)

13.             Article 3 of the CRC provides that States Parties shall make the best interests of the child a primary consideration in all actions concerning children, including by courts of law, administrative authorities and legislative bodies. States Parties must ensure the child has such protection and care as is necessary for his or her well-being.

14.             Consistent with the CRC, this Bill gives primary consideration to the best interests of the child through amendments to the legal framework applicable to Commonwealth child sex offenders. The legislation is intended to protect children from sexual abuse through various measures to prevent and deter the perpetration of child sex offences, and to improve the justice outcomes for survivors of child sexual abuse.

Right of the child to be protected from sexual abuse (Articles 19 and 34 CRC)

15.             Article 19 of the CRC provides that:

States Parties shall take all appropriate legislative … measures to protect the child from all forms of physical or mental violence, injury or abuse, … including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has care of the child.

16.             Article 34 similarly provides that “State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse”, including taking all appropriate measures to prevent “the exploitative use of children in pornographic performances and materials”.

17.             Numerous provisions of the Bill provide measures to protect children from sexual abuse, including:

·          the insertion of a presumption against bail for the most serious Commonwealth child sexual offences;

·          the requirement for Commonwealth child sex offenders released into the community on recognizance release orders to be placed under supervision conditions; and

·          provisions which make it easier for a Commonwealth child sex offender’s parole to be revoked if they pose a danger to the community.

18.             In addition, this Bill promotes Articles 19 and 34 of the CRC by increasing the general and specific deterrence for committing child sex offences, and ensuring that penalties for these offences more appropriately reflect the gravity of child sexual abuse. This is achieved through various measures, including the creation of new offences that criminalise emerging forms of child sexual abuse.

19.             For example, the proposed new offence at section 272.15A of the Criminal Code will address “grooming” where a person engages in conduct in relation to another person (the third party) with the intention of making it easier to procure a child, who is, or who the person believes to be, under 16 years of age, to engage in sexual activity with the person or another person outside Australia. The new offence also applies regardless of where the grooming took place, provided the intention was to procure the child to engage in sexual activity outside Australia.

20.             Other measures which promote Articles 19 and 34 include:

·          the mandatory minimum sentencing regime;

·          the increase in maximum penalties for certain offences, to ensure that the penalties for these offences appropriately reflect the gravity of the child sex offences; and

·          reducing the amount of ‘clean street time’ that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and licence.

21.             By strengthening Australia’s legislative response to child sexual abuse, the Bill strengthens Australia’s commitment to upholding the right of children to protection from all forms of sexual exploitation and sexual abuse as set out in Articles 19 and 34 of the CRC.

Criminalisation of child sex abuse (Article 3(1) OPSC)

22.             Article 3(1) of the OPSC expands on the fundamental rights in the CRC by requiring that certain forms of child sex abuse be fully covered under criminal law. The Bill advances these Articles by introducing new offences which criminalise emerging forms of child sexual abuse, including new offences criminalising:

·          grooming of third parties to make it easier to procure persons under 16 years of age, or who the defendant believes to be under 16 years of age, to engage in sexual activity overseas, and

·          facilitation online of dealings in child abuse material. 

23.             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.

Ensuring appropriate penalties for child sex offences (Article 3(3) OPSC)

24.             Similarly, Article 3(3) of the OPSC supports the CRC by providing that State Parties must make offences mentioned in the protocol “punishable by appropriate penalties that take into account their grave nature”. The Bill advances this Article by increasing the maximum penalties for certain child sex offences and by instituting mandatory minimum sentences for child sex offenders. These amendments address the disparity between the seriousness of child sex offending and the sentences currently handed down by the courts.

25.             The Commonwealth Director of Public Prosecutions currently appeals a high number of child sex offending cases due to manifestly inadequate sentences imposed by judges at first instance and for repeat offenders. The online sexual predation and abuse of children is also a matter of considerable concern to the community, and the amended penalties aim to more adequately reflect the serious nature of such online behaviour.

26.             Manifestly inadequate sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children.

27.             Mandatory minimum sentences reflect the seriousness of child sexual abuse, including the significant harm suffered by victims. They keep offenders out of the community where they may further offend against children and may also deter others from engaging in such behaviour.

The rights of the child to be protected from sexual abuse and heard in judicial proceedings (Articles 12 and 34 CRC); Protecting the rights and interests of child victims in the criminal justice system (Article 8 OPSC); Measures to suppress all forms of traffic in women and exploitation of prostitution of women (Article 6 CEDAW)

28.             Article 8(1)(a) of the OPSC also promotes Articles 12 and 34 of the CRC by stating that:

States Parties shall adopt appropriate measures to protect the rights and interests of child victims … at all stages of the criminal justice process, in particular by … [r]ecognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their specific needs as witnesses.

29.             The Bill promotes this by removing the requirement in the Crimes Act that the prosecution seek the leave of the court before a video recording of a person can be admitted as evidence in chief of a vulnerable witness. This amendment promotes the interests of child victims of sexual offences and other crimes, and is an appropriate adaptation of criminal justice procedures to their special needs. Using pre-recorded evidence assists child victims by reducing the stress of giving evidence for long periods, and improving the quality of their evidence.

30.             This amendment also applies more broadly to vulnerable adult complainants, namely victims of slavery, trafficking and debt bondage offences. To the extent that this amendment improves the ability of the Commonwealth Director of Public Prosecutions to effectively prosecute these offences, this amendment also advances Article 6 of the CEDAW. This Article provides that States Parties shall take appropriate measures to “suppress all forms of traffic[king] in women”.

Right of the child not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37 CRC)

31.             Article 37 of the CRC provides that States Parties shall ensure that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”.

32.             This Bill promotes this article through the creation of a new offence that criminalises the creation, maintenance, control or moderation of an electronic service to facilitate dealings with child abuse material, and through the creation of an aggravated offence relating to cruel, inhuman or degrading treatment in connection with sexual abuse. Child abuse material includes material that depicts a child who is a victim of torture, cruelty or physical abuse. Providing electronic services for child abuse material can result in the establishment of sophisticated criminal networks which perpetuate the demand for existing and new child abuse material. Criminalising this behaviour is therefore essential to the protection of children from torture as required under the CRC.

33.             In addition, the Bill introduces mandatory minimum sentences for some Commonwealth child sex offences. This is intended to have a deterrent effect and enhance the protection of children from torture.

Right to liberty (Article 9 ICCPR)

34.             The Bill engages Article 9(1) of the ICCPR which states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

35.             A number of measures in the Bill may engage child sex offenders’ right to liberty, namely:

·          the mandatory minimum sentencing scheme;

·          the increase in maximum penalties for certain Commonwealth child sex offences;

·          the presumption against bail;

·          the presumption in favour of an actual term of imprisonment for Commonwealth child sex offenders;

·          the power to revoke parole without notice if there are community safety concerns;

·          reducing the amount of ‘clean street time’ that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and licence; and

·          the requirement that a period of time be served in custody for breach of parole or licence.

36.             None of these amendments represent an infringement of the prohibition on arbitrary arrest and detention. While they may have the effect of increasing the length of time that offenders spend in custody, the grounds for this are prescribed by law, and only take effect following valid and lawful arrest and/or conviction for criminal offences.

37.             Limitations on the right to liberty are permissible if in accordance with procedure established by law, and if the limitation is reasonable, necessary and proportionate. All the above mentioned amendments provide for an individual to be detained according to procedures established by this Bill.

38.             The following is an explanation of why these amendments are reasonable, necessary and proportionate.

39.             The power to revoke a parole order or licence without notice if there are community safety concerns is necessary to protect the community from offenders who are likely to reoffend. Currently, even when there are serious concerns for community safety, offenders must be given notice before their parole or licence can be revoked. This means that such persons are given the opportunity to reoffend or to abscond as they know that they may be taken back into custody. This amendment is reasonable and proportionate as it only removes the notice requirement where doing so is necessary ‘in the interests of ensuring the safety and protection of the community or of another person’. The amendment hence appropriately balances offenders’ right to liberty with the primary right of children under the CRC to be protected from sexual abuse.

40.             The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of these offences and ensure that the community is protected from child sex offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children.

41.             These sentencing and penalty amendments are reasonable given that the penalties will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures established by law. The amendments are proportionate as they are tailored to the seriousness of various child sex offences, with mandatory minimum penalties applying to first time offenders only for the most serious child sex offences. The mandatory minimum scheme will apply to child sex offences that attract lower maximum penalties where the offender has been previously convicted of another child sex offence.  The increases in maximum penalties are necessary to reflect the seriousness of these behaviours. Furthermore, the mandatory minimum scheme will not apply if it is established on the balance of probabilities that the person convicted of the relevant offence was aged under 18 years when the offence was committed.

42.             Both the mandatory sentencing scheme and the increase in maximum penalties are proportionate because they only relate to the length of the head sentence, not the term of actual imprisonment that an offender will serve. Courts will retain discretion as to any term of actual imprisonment, and will retain access to sentencing alternatives that may be appropriate, for example where an offender has an intellectual disability that makes imprisonment inappropriate. 

43.             The presumption against bail aims to achieve the necessary and legitimate objective of community protection from Commonwealth child sex offenders whilst they are awaiting trial or sentencing. Commonwealth child sex offences involve offences where an element of the offence is external to Australia or where a postal or carriage service is involved. Given the proliferation of different types of online child sexual abuse and communication technologies allowing for obfuscation of online criminal conduct (e.g. encryption and virtual private networks), it is particularly important to ensure that any risk is mitigated through appropriate conditions. Where conditions cannot mitigate the risk to the community, witnesses, and victims, bail should not be granted.  

44.             This measure is reasonable and proportionate as it provides the courts with a starting point of a presumption against bail for the most serious child sex offences, and where child sex offences would attract a minimum penalty on a second or subsequent offence. The presumption is rebuttable and provides judicial discretion as to determining whether a persons’ risk on bail can be mitigated through appropriate conditions and ultimately to grant bail as a consequence. It further balances the rights of Commonwealth child sex offenders with the paramount right of a child to be protected from physical and sexual abuse.

45.             The presumption in favour of a term of actual imprisonment is similarly reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for child sex offenders that reflect the gravity of these offences, and to ensure that the community is protected from child sex offenders. The presumption is proportionate to this aim because it is rebuttable if there are exceptional circumstances to justify the child sex offender being released immediately on a recognizance release order. Exceptional circumstances is not defined, and therefore there is significant judicial discretion involved. The presumption also only applies to Commonwealth child sex offenders who might otherwise be released on recognizance release orders. Furthermore, the court has discretion as to how long the term of imprisonment should be.

46.             An offender who is released on parole is allowed to serve the remainder of their sentence in the community. Committing an offence while on parole or licence results in its revocation if the new sentence is more than three months’ imprisonment. Reducing the amount of ‘clean street time’ that can be credited by a court as time served against the outstanding sentence ensures that offenders can only receive credit for good behaviour and is necessary to prevent offenders from attempting to circumvent the legal consequences of reoffending. The amendment is reasonable and proportionate as, although a person may be released into the community on parole or licence, they remain under sentence. It still enables the court to reward good behaviour but ensures that the ‘clean street time’ period does not extend beyond that.

47.             The requirement for a period of time to be served in custody for breach of parole is necessary to ensure that both courts and offenders view parole conditions as serious and to ensure that parolees behave in an appropriate manner while on parole. The amendment is reasonable and proportionate because it only applies where the breach is deemed to be of sufficient seriousness to warrant further imprisonment. Given that release to parole is a privilege and not a right, it is reasonable that a parolee be returned to prison if they abuse this privilege by failing to comply with parole conditions.

Prohibition against a general rule that persons awaiting trial be detained in custody (Article 9(3) ICCPR)

48.             Article 9(3) of the ICCPR provides that: “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody”. This right may be impacted by the presumption created in this Bill against granting bail for those charged with or convicted of Commonwealth child sex offences. Limiting this right is permissible if it aims to achieve a legitimate objective, and is reasonable, necessary and proportionate.

49.             The presumption against bail measure aims to protect the community from child sex offenders while they are awaiting trial or sentencing. The arguments put forward in Schedule 7 are reiterated here. The use of communication technologies for this crime type in proliferating child sexual abuse and protecting the person’s identity while perpetrating the crime is well known and provides significant difficulties to law enforcement not only in investigating the crimes in the first instance but also for the enforcement of bail conditions.  Accordingly, the presumption is a necessary, reasonable and proportionate measure to ensure the broader safety of one of Australia’s most vulnerable groups, children. 

Reformation and social rehabilitation in penitentiary systems (Article 10(3) ICCPR)

50.             Article 10(3) of the ICCPR provides that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. This Bill promotes this right as it provides for the objective of rehabilitation of child sex offenders to be a mandatory consideration in sentencing.

51.             The amendment promotes the intention of this article by requiring courts sentencing child sex offenders to consider whether it is appropriate to impose conditions about rehabilitation or treatment, and to also consider whether the sentence or order provides sufficient time for the person to undertake a rehabilitation program while in custody.

Right to liberty of movement and freedom to choose one’s residence (Articles 12(1) and 12 (3) ICCPR)

52.             Article 12(1) of the ICCPR provides that “[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. This right may be engaged by the amendment which provides that child sex offenders released on recognizance orders must be subject to supervision orders. This provision may result in conditions being set that affect an offender’s movement or the location of their residence.

53.             However, Article 12(3) provides that this right may be subject to restrictions provided by laws that “are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others”. This amendment is therefore permissible because it restricts the right by operation of law, and is necessary to protect public morals and the rights and freedoms of children. Supervision conditions are also important to ensuring that child sex offenders are able to transition into the community and will reduce the risk of their reoffending.

Right to a fair hearing in a suit of law (Articles 14(1) and 14(3)(e) ICCPR)

54.             Article 14(1) of the ICCPR provides that “[i]n the determination of … rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing”. To the extent that an individual’s right to seek judicial review of a decision relating to their parole might be seen to constitute a “suit at law”, this Bill may engage the right to a fair hearing in a suit at law through the power to revoke parole without notice on community safety grounds.

55.             As noted above, the power to revoke parole without notice on community safety grounds is reasonable and proportionate as it only removes the notice requirement where doing so is necessary “in the interests of ensuring the safety and protection of the community or of another person”. The amendment hence appropriately balances offenders’ right to liberty with the primary right of children under the CRC to be protected from sexual abuse.

56.             In addition, Article 14(3)(e) provides that everyone has the right to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them.

57.             Schedule 2 broadly engages Article 14 and specifically Article 14(3)(e) of the ICCPR by outlining the conditions by which a video recording of an interview with a vulnerable person can be admitted as evidence in chief in Commonwealth criminal proceedings. In this context, Schedule 2 limits the right of everyone to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them.

58.             While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety and protection from undue distress or public embarrassment. 

59.             In light of the vulnerabilities of child witnesses (especially in the context of child sexual abuse offences) and vulnerable adult complainants (especially in the context of human trafficking and slavery-related offences), it is appropriate to enable the use of video recordings of interviews to be admitted as evidence in chief. Such a provision ensures that vulnerable individuals are only required to give potentially traumatising evidence once. Indeed, this provision seeks to limit the risk of re-traumatisation of vulnerable individuals participating in the criminal justice process.

60.             Except as specified, the proposed protections will not affect the general power of a court to control the conduct of a proceeding, including the power of the court to control the questioning of witnesses. Specifically, the Bill will not limit the ability of the defendant`s legal representative to test evidence put before the court, including through the cross-examination of witnesses at trial. Further, the decision of the court, and any material on which the court makes its decision (that is not the subject of a suppression order), will generally be publicly available and subject to public and media scrutiny.

61.             On this basis, Schedule 2 of the Bill serves the legitimate objective of seeking to limit the trauma and risk of re-traumatisation of vulnerable individuals that participation in the criminal justice process may present. Any limitation on open justice is reasonable, necessary and proportionate to achieving this objective.

Right to the presumption of innocence (Article 14(2) ICCPR)

62.             Article 14(2) of the ICCPR states that those charged with criminal offences have the right to be presumed innocent until proved guilty. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

63.             The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offences in subsections 474.27AA(1) -(3) (using a carriage service to groom a third to make it easier to procure persons under 16 years of age), and the new aggravated offences in section 272.10 and 474.25B. The presumption in section 475.1B provides that if a physical element of the offence consists of a person using a carriage service to engage in particular conduct, and the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

64.             The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant’s computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.

65.             The Bill relies on the Commonwealth’s telecommunications power under the Australian Constitution. Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, or the defendant’s culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth than those that do not.

66.             Given the objective of the presumption in the Criminal Code , it is unreasonable that this would be applied to the new carriage service offences and maintains the rights of the defendant. Accordingly, the Bill does not violate the presumption of innocence.

Freedom of expression (Articles 19(2) and 19(3) ICCPR)

67.             Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime), where such restrictions are provided by law and are necessary for attaining one of these purposes. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. Limitations on freedom of expression on the grounds of public order include limitations for the purpose of preventing crime. In order for the proposed laws to be considered a necessary restriction on freedom of expression on the grounds of public order, the restriction must be clearly defined.

68.             The Bill engages the right to freedom of expression in Article 19(2) to the extent that it creates new offences that criminalise the use of carriage and postal services to “groom” third parties; the use of carriage services to engage in aggravated child sexual abuse; and the creation, maintenance, control or moderation of electronic services to facilitate access to child abuse material. These new offences may have an impact on the use of carriage services to seek, receive and impart information.

69.             To the extent that the right to freedom of expression is engaged by these offences, these restrictions are provided by law and are necessary to prevent and criminalise emerging forms of child sexual abuse. The offences are reasonable and proportionate as they only criminalise reprehensible and harmful behaviour which facilitates or perpetuates child sexual abuse.

70.             The Bill also promotes the right to freedom of expression of children by further protecting their right to seek, receive and impart information using a carriage service, free from the threat of harm and sexual abuse.

Conclusion

71.             This Bill is compatible with human rights as it promotes and advances human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to protect children at risk of sexual abuse.

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                 This clause provides for the short title of the Act to be the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2019.

Clause 2 - Commencement

2.                 This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that sections 1 to 3 which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives Royal Assent.

3.                 As set out in the table, Schedule 3 (Cross-examination of vulnerable persons at committal proceedings), Schedule 8 (Matters court has regard to when passing sentence) and Schedule 13 (Revocation of parole order or licence) would commence 28 days after the Bill receives the Royal Assent. This commencement arrangement is designed to ensure that there is time for the courts and prosecutors to be aware of the changes in these Schedules.

4.                 The table also sets out the commencement arrangements with regard to amendments in the Bill which are contingent on the commencement of Schedules 2 and 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 and Schedule 1 of the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019.

Clause 3 - Schedules

5.                 This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule and that any other item in the Schedule has effect according to its terms.

 



 

Schedule 1—Revocation of parole order or licence to protect safety

Crimes Act 1914

Item 1 - After paragraph 19AU(3)(b)

6.                 Section 19AU of the Crimes Act outlines when the Attorney-General can revoke a parole order or licence and the procedures that must be followed when doing so. Currently, unless certain circumstances apply, before revoking a parole order or licence, a person must be notified of the specific conditions of the order or licence that they are alleged to have breached and given 14 days to respond.

7.                 This item amends section 19AU(3) to provide that a federal offender’s parole or licence may be revoked without notice if doing so is necessary to ensure the safety and protection of the community or of another person. This provides an option to revoke a person’s parole or licence in circumstances that require a response before the current 14 day timeframe, but would not otherwise meet the current threshold of urgency (which implies a need for immediate action). 

8.                 Including this in the current list of exceptions will ensure that if the Attorney-General or their delegate becomes aware that a person who has been released into the community on parole or licence poses a threat to the safety of the community or to another person, that person can be taken into custody immediately.

9.                 Importantly, 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. However, during this time the person will be remanded in custody, where they cannot cause harm. If, after considering the person’s submission, the Attorney-General decides to rescind the revocation order, he or she would be immediately released from prison.

Item 2 - Application provision

10.             This item provides that the amendment in item 1 applies to a revocation made on or after commencement of the Bill, regardless of when the parole order was made or licence was granted.



Schedule 2—Use of video recordings

Crimes Act 1914

11.             Schedule 2 will strengthen the protections in Part IAD of the Crimes Act for vulnerable witnesses (such as children) who give evidence in particular criminal proceedings, including for Commonwealth child sex offences and human trafficking and slavery offences.

12.             Under the existing section 15YM, the leave of the court is required before a video recording of a person may be admitted as evidence in chief for a vulnerable witness. The video recorded interview must be conducted by a constable or other specified person. Currently, the court must not give leave if it is satisfied that it is not in the interests of justice for video recorded evidence in chief to be given.

13.             If contested by the defence, the requirement to seek leave in section 15YM may have an adverse effect on the vulnerable witness and is contrary to the intent of the vulnerable witness protections more broadly.

14.             Accordingly, these provisions 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. The recorded interview will still need to be conducted by a constable or a specified person.

15.             The evidence in chief interviews remain subject to the rules of evidence and parts may be ruled inadmissible, thereby protecting the rights of the accused person. There are sufficient safeguards in place that the defence will not be unreasonably disadvantaged by removing the requirement in 15YM to seek leave. On balance, any disadvantages to the defence are outweighed by the uncertainty, delay and inefficiency caused by the requirement to seek leave.

16.             Removing the requirement to seek leave also brings the Commonwealth’s vulnerable witness protections into line with the approach taken by states and territories.

Item 1 -Subsection 15YM(1)

17.             Item 1 repeals the current subsection 15YM(1) and substitutes a new subsection which allows for evidence in chief of a vulnerable witness to be admitted as evidence in chief if a specified person conducted their interview.

Item 2 -Subsections 15YM(2) and (3)

18.             Item 2 repeals subsections (2) and (3) which will no longer be required as the court will not need to hear submissions for leave to be granted.

Item 3 - Application and saving provisions

19.             Subitem 3(1) ensures that the amendments made by this Schedule only apply to proceedings begun on or after the commencement of the Bill.

20.             Subitem 3(2) ensures that any regulations made for the purposes of paragraph 15YM(1)(a) of the Crimes Act prior to introduction and commencement of this Bill will continue to have effect.



Schedule 3—Cross-examination of vulnerable persons at committal proceedings

Crimes Act 1914

21.             The Bill removes the requirement for vulnerable witnesses to be available to give evidence at committal proceedings. There is currently no restriction on cross-examination of vulnerable witnesses at committal proceedings (or proceedings of a similar kind) and few restrictions on the scope of questioning permitted in committal proceedings under Part IAD of the Crimes Act .

22.             Presently, prohibitions on the scope of the cross-examination of a vulnerable witness appear in sections 15YB and 15YC of the Crimes Act . These provisions provide that evidence of the reputation or experience with respect to sexual activities of a child witness or child complainant is prima facie inadmissible. However, the accused’s legal representatives can seek leave, for defined reasons, to cross-examine on these subjects. The ability to seek leave is not restricted to evidence at trial - it includes committal proceedings or proceedings of a similar kind. This restriction does not apply to vulnerable adult complainants, who have other protections in Part IAD.

23.             By prohibiting cross-examination at committal proceedings or proceedings of a similar kind, vulnerable witnesses will be spared an additional risk of re-traumatisation. Presently, vulnerable witnesses may have to give evidence twice and often in distressing, combative environments. It will also help streamline criminal justice processes by ensuring lengthy cross-examination is reserved for trials and not committal proceedings or proceedings of a similar kind. It will also bring the Commonwealth broadly into line with practice in other Australian states and territories.

Item 1 - After paragraph 15YAB(3)(b)

24.             Item 1 inserts a new subparagraph 15YAB(3)(ba) which incorporates the new section 15YHA (about cross-examination of vulnerable persons at committal proceedings) as a section the court may order to apply to a special witness.

Item 2 - At the end of subsection 15YF(1)

25.             Item 2 inserts a note directing the reader to 15YHA (see item 5 - At the end of Division 3 of Part IAD).

Item 3 - At the end of subsection 15YG(1)

26.             Item 3 inserts a note directing the reader to 15YHA (see item 5 - At the end of Division 3 of Part IAD).

Item 4 - At the end of subsection 15YH(1)

27.             Item 4 inserts a note directing the reader to 15YHA (see item 5 - At the end of Division 3 of Part IAD).

Item 5 - At the end of Division 3 of Part IAD

28.             Item 5 inserts a new section 15YHA which provides that specified persons are not to be cross-examined at committal proceedings or proceedings of a similar kind. 

Item 6 - Subsection 15YM(4)

29.             Item 6 inserts into subsection 15YM(4) the requirement, that a person who is required to be available for cross-examination and re-examination if that person gives evidence in chief by video recording, be subject to the provisions in Division 3 of Part IAD.

Item 7 - Subsection 15YM(4) (note)

30.             Item 7 renumbers the note as ‘note 1’. 

Item 8 - At the end of subsection 15YM(4)

31.             Item 8 inserts a new ‘Note 2’ which flags the effect Division 3 will have on section 15YM.

Item 9 - Application provision

32.             Item 9 ensures that the amendments made by this Schedule only apply to proceedings begun on or after the commencement of the Bill.

 

 



Schedule 4—Strengthening child sex offences

Part 1 - Main amendments

Criminal Code Act 1995

Item 1 - After paragraph 272.5(3)(b) of the Criminal Code

33.             This item provides that section 11.1 of the Criminal Code (attempt) does not apply to the new offence of “grooming” a person to make it easier to engage in sexual activity with a child outside Australia.

Item 2 - Subsection 272.9(1) of the Criminal Code (before the penalty) 

34.             Item 2 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary 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.

Item 3 - Section 272.10 of the Criminal Code (heading)

35.             Item 3 repeals and substitutes the heading of the aggravated offence to cover sexual intercourse or other sexual activity with a child outside Australia. 

Item 4 - Paragraph 272.10(1)(b) of the Criminal Code

36.             Item 4 introduces new aggravated offences that apply to the underlying offences of sexual intercourse with a child outside Australia (section 272.8) and engaging in sexual activity with a child outside Australia (section 272.9). The item repeals existing paragraph 272.10(1)(b) and replaces it with new paragraph (b).

37.             Section 272.10 criminalises a range of activities that aggravate the offences in sections 272.8 and 272.9 of the Criminal Code . Under new paragraph (b), it will be an aggravated offence for a person to commit an offence against sections 272.8 and 272.9 where:

·          the child has a mental impairment (existing subparagraph 272.10(1)(b)(i));

·          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 (existing subparagraph 272.10(1)(b)(ii));

·          the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 272.10(1)(b)(iii)); or

·          the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 272.10(1)(b)(iv)).

38.             The new aggravated offences in subparagraphs 272.10(1)(b)(iii) and 272.10(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. These offences warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability.

39.             Subparagraph 272.10(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual intercourse or activity referred to in sections 272.8 or 272.9 (the underlying offences). This may include, for example, where the offender causes the child to be unconscious when committing the underlying offences or causes the child to be disfigured or dismembered.

40.             Subparagraph 272.10(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in the underlying offences. ‘Physical harm’ is limited to the definition of ‘physical harm’ in the Criminal Code , which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances.

41.             The inclusion of the reference to ‘in connection with’ is intended to cover cruel, inhuman or degrading treatment that occurs both before and / or after the underlying offences, and that is directly linked to the underlying offences.

42.             By application of the default fault elements in section 5.6 of the Criminal Code , the fault element of recklessness will apply to a physical element of an offence that is a result.  Under section 5.4 of the Criminal Code , a person is ‘reckless’ with respect to a result if he or she is aware of a substantial risk that the result will occur, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.  

43.             Accordingly, to establish an offence under subparagraph 272.10(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:

·          the person committed the underlying offence, and

·          the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and

·          the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and

·          having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity.

44.             To establish an offence under subparagraph 272.10(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:

·          the person committed the underlying offence, and

·          the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and

·          the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and

·          having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity.

45.             These new aggravated offences will be punishable by a maximum penalty of life imprisonment. Item 5 of Schedule 5 increases the maximum penalty of the aggravated offences at section 272.10 to life imprisonment . This penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity.

Item 5 - Subsection 272.13(1) of the Criminal Code (before the penalty)

46.             Item 5 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary 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.

Item 6 - After section 272.15 of the Criminal Code

47.             This item inserts a new section 272.15A into the Criminal Code , criminalising the grooming of third parties to make it easier to procure persons under 16 years of age to engage in sexual activity overseas.

48.             New section 272.15A is intended to complement the existing preparatory, procurement and “grooming” offences set out in sections 272.14, 272.15, 471.25, 474.25C, 474.26 and 474.27 of the Criminal Code.

49.             The offence in subsection 272.15A(1) will address “grooming” where a person engages in conduct in relation to another person with the intention of making it easier to procure a child, who is, or who the person believes to be, under 16 years of age, to engage in sexual activity with the person or another person.

50.             Paragraph 272.15A(1)(d) provides that the offence will apply when one or more of the following circumstances are met:

·          the conduct occurs wholly or partly outside Australia

·          the third party or the child (or both) were outside Australia when the conduct occurred, or

·          the conduct occurred wholly in Australia and both the third party and the child were in Australia when the conduct occurred.

51.             Paragraph 272.15A(1)(d) is intended to ensure that the offence applies regardless of where the conduct (that is, the “grooming”) took place, provided the intention was to procure the child to engage in sexual activity outside Australia. 

52.             The reference to “engage in sexual activity” in paragraph 272.15A(1)(b) and subsection 272.15A(3) is not limited to sexual activity in “real life”. The term “engage in sexual activity” is defined in the Dictionary to the Criminal Code and extends to an act that does not necessarily require physical contact. The definition of “engage in sexual activity” also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

53.             The reference to “procure” in paragraph 272.15A(1)(b) includes encouraging, enticing, recruiting or inducing a child to engage in sexual activity. The term “procure” is defined in the Dictionary to the Criminal Code as including conduct where a person encourages, entices, recruits or induces a second person to engage in sexual activity.

54.             Subsection 272.15A(2) clarifies that absolute liability applies to the physical element that the child referred to is under 16 years of age. Subsection 272.15A(2) also applies absolute liability to the physical elements set out in subparagraph 272.15A(1)(d) of where the conduct occurred and where the child and person were located at the time of the conduct. This means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to these elements. The impact of imposing absolute liability is balanced through the specific defences based on belief about age available under existing section 272.16 of the Criminal Code . This approach is consistent with existing “grooming” offences within the Criminal Code .

55.             Subsection 272.15A(3) clarifies a person may be found guilty of an offence under section 272.15A even if it is impossible for the sexual activity referred to in paragraph 272.15A(1)(b) to have occurred.

56.             Subsection 272.15A(4) makes it irrelevant for the purposes of an offence under subsection 272.15A(1) whether a fictitious person is represented to the person (the defendant) as a real person. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

57.             Section 272.15A provides that the maximum penalty for an offence under this section is imprisonment for 15 years. This is consistent with the existing maximum penalty for the child sex offences in Part 10.5 of the Criminal Code of “procurement” (imprisonment for 15 years) and “grooming” (proposed maximum penalty of imprisonment for 15 years, as increased by Schedule 5 of this Bill). The proposed maximum penalty of 15 years’ imprisonment is consistent with the serious nature of the conduct involved in this offence and the harm caused to victims. 

58.             Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code , will apply to section 272.15A. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under section 272.15A, even if their conduct does not constitute an offence in that country and the result of that conduct does not affect Australia.

Item 7 - Subsection 272.16(3) of the Criminal Code (heading)

59.             This item revises the heading at subsection 272.16(3) of the Criminal Code .

Item 8 - Subsection 272.16(3) of the Criminal Code

60.             Item 8 amends existing subsection 272.16(3) of the Criminal Code to provide that it will be a defence to a prosecution under new section 272.15A if the defendant can prove that, at the time the conduct occurred, he or she believed that the child was at least 16 years of age. This is consistent with the operation of existing offences of procuring a child to engage in sexual activity outside Australia and “grooming” a child to engage in sexual activity outside Australia under existing sections 272.14 and 272.15 of the Criminal Code

Item 9 - After section 471.25 of the Criminal Code

61.             This item inserts a new section 471.25A into the Criminal Code . This item inserts a new offence criminalising using postal or similar services to “groom” another person to make it easier to procure persons under 16 years of age for sexual activity.

62.             New section 471.25A complements the existing procurement and “grooming” offences set out in sections 471.24 and 474.25 of the Criminal Code. Proposed section 471.25A contains three separate offences for the “grooming” of third parties.

63.             The proposed offence in subsection 471.25A(1) will address “grooming” where an adult (sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for the sender to engage in sexual activity with a specific child. The sender must be at least 18 years of age, and the child must be (or the sender believed them to be) under 16 years of age.

64.             The proposed offence in subsection 471.25A(2) will address “grooming” where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child. The participant must be (or the sender believed them to be) at least 18 years of age. The child must be (or the sender believed them to be) under 16 years of age.

65.             The proposed offence in subsection 471.25A(3) will address “grooming” where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child, where the sexual activity is to take place in the presence of the sender or another person.

66.             The reference to “engage in sexual activity” in paragraphs 471.25A(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in “real life”. The definition of “engage in sexual activity” extends to an act that does not necessarily require physical contact. “Engage in sexual activity” also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

67.             The reference to “procure” in paragraphs 471.25A(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. “Procure” is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in “consensual” sexual activity but also includes conduct where a sender may coerce a person into engaging in “non-consensual” activity. 

68.             Paragraphs 471.25A(1)(d), (2)(d), (3)(d) and subparagraph (3)(e)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions.

69.             The proposed maximum penalty is imprisonment for 15 years for each offence under section 471.25A. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences in Part 10.5 of the Criminal Code of procurement (imprisonment 15 years) and “grooming” (imprisonment for 15 years as set out in items 12 and 13 of Schedule 5 of this Bill). The proposed maximum penalty of 15 years’ imprisonment is consistent with the serious nature of this type of offending behaviour. ‘Grooming’ can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the child that is subject to the ‘grooming’ behaviour. The maximum penalty recognises the harm done to the victims of this offence.

70.             Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code , will apply to section 471.25A. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

71.             It will be a defence to a prosecution under this new offence if the defendant can prove that, at the time the article was carried via a postal or similar service, he or she believed that the recipient was at least 16 years of age. This ensures that the new offence only targets persons trying to make it easier to engage in sexual activity with a child under the age of 16.

Item 10 - Subsection 471.27(1) of the Criminal Code

72.             This item amends the existing subsection 471.27(1) of the Criminal Code to insert “(other than section 471.25A)” into the subsection . The application of absolute liability will not apply to existing subsection 471.27(1).

Item 11 - After subsection 471.27(1) of the Criminal Code

73.             This item introduces an additional subsection to section 471.27 (age-related provisions relating to offences against this Subdivision) for the application of absolute liability to the physical element of a recipient being under 16 years of age. This means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to that element. The impact of imposing absolute liability is balanced through the specific defence based on belief about age available under existing section 471.29. This approach is consistent with existing “grooming” offences within the Criminal Code .

Item 12 - Subsection 471.27(2) of the Criminal Code

74.             This item includes new postal or similar service offences for the “grooming” of third parties under the existing absolute liability provisions concerning the age of the participant.

Item 13 - Subsections 471.27(3) and (4) of the Criminal Code

75.             This item repeals the current subsections and substitutes a provision which combines those subsections. This provision, as much as its predecessor, impacts upon the evidentiary requirement to prove the sender’s belief about the age of the person or, if relevant, the age of the other person who is to engage in sexual activity with the recipient, or is to be present during the sexual activity. As with the existing “grooming” provisions, ordinarily this could be a significant burden of proof for the prosecution to overcome. Accordingly, this provision in its redrafted form ensures that the prosecution can rely on representations made to a defendant (e.g. written exchanges from the recipient) relating to the age of the recipient or other person in discharging that burden. It is also intended that a defendant can introduce evidence that contradicts these types of representations made by the prosecution.

Item 14 - Subsection 471.28(1) of the Criminal Code

76.             This item ensures a person may be found guilty of an offence for the “grooming” of third parties even if it is impossible for the sexual activity referred to in section 471.25A to have occurred.

Item 15 - Subsection 471.28(2) of the Criminal Code

77.             Item 15 amends the heading of subsection 471.28(2) of the Criminal Code by repealing the heading and replacing it with a new heading: ‘Fictitious persons’. This amendment is consequential to item 16 which inserts a new subsection 471.28(2A) into the Criminal Code after subsection 471.28(2).

78.             New subsection 471.28(2A) makes it irrelevant for the purposes of an offence under 471.25A whether a fictitious person is represented to the sender as a real person. This item expands the heading from ‘Fictitious recipient’ to ‘fictitious persons’ to reflect that subsections 471.28(2) and 471.28(2A) together refer to fictitious persons who may not exclusively be recipients.  

79.             This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

Item 16 - After subsection 471.28(2) of the Criminal Code

80.             Item 16 applies subsection 471.28(2) to the operation of the offence for “grooming” of third parties under section 471.25A. Subsection 471.28(2) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 9 which inserts a new offence into the Criminal Code for using a postal or similar service to “groom” third parties.

Item 17 - Subsection 471.28(3) of the Criminal Code

81.             This item applies subsection 471.28(3) of the Criminal Code to the offence for “grooming” of third parties under section 471.25A of the Criminal Code . Section 471.28(3) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code . This amendment is consequential to item 9 which inserts a new offence into the Criminal Code for using a postal or similar service to “groom” third parties.

Items 18, 19 and 20 - Subsection 471.29(1) of the Criminal Code

82.             These items clarify that it is a defence to a prosecution for an offence against proposed section 471.25A if the defendant proves that, at the time he or she caused the article to be carried, the defendant was of the belief that the child was at least 16 years of age. This ensures that the new offence for the “grooming” of third parties only targets offenders who are trying to make it easier to engage in sexual activity with a child under the age of 16.

83.             The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code , the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

84.             While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant’s belief as to the age of the child is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other “grooming” offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 471.25A relating to the age of the child (item 11).

85.             It is important to note that an offence will still be committed where the defendant believes the child to be under the age of 16 years, regardless of the actual circumstances of the offending. This is necessary to accommodate a standard investigatory technique where a law enforcement officer assumes the identity of a fictitious child to apprehend a potential offender before they have the opportunity to sexually abuse a real child.

Items 21 and 22 - Subsection 471.29(2) of the Criminal Code

86.             These items ensure that the existing defence under subsection 471.29(2) of the Criminal Code applies. That defence concerns the belief that the participant was under 18 years of age when the person caused the article to be carried. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 9 which inserts a new offence for the “grooming” of third parties into the Criminal Code .

87.             The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code , the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

88.             While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant’s belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other “grooming” offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 471.25A relating to the age of the participant (item 12).

Item 23 - Subsection 471.29(3) of the Criminal Code

89.             This item will ensure that, in determining whether the defendant had the required belief, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances. This subsection is included to prevent a defendant avoiding criminal liability simply by asserting a belief that the child was 16 or older at the time of the offence where there is no reasonable basis for that belief. 

Item 24 - After section 474.23 of the Criminal Code

90.             Item 24 will insert new section 474.23A to criminalise the provision of an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code .

91.             The new offence will help to address the ever increasing role played by electronic services (such as online fora, websites and other storage and exchange platforms) in enabling the exchange of child abuse material. These services, which are often hosted on the Dark Web, are particularly abhorrent as they facilitate the offending of a large, sometimes global, audience and promote the production of new child abuse material. In particular, there has been a rise in the number of websites that function for the sole purpose of facilitating the online distribution of child abuse material and encouraging discussion about child sexual abuse amongst its members.

92.             The consequences of providing these electronic services cannot be overstated. This behaviour results in the establishment of sophisticated, elaborate and global criminal networks which perpetuate the demand for new and existing child abuse material. The electronic services often take advantage of anonymising technologies and encryption, giving criminals a safe online environment to access and share child abuse material and to reinforce and enable their offending behaviours.

93.             This offence will also address a gap in the law which means that individuals cannot be prosecuted for the provision of electronic services to facilitate dealings with child abuse material unless it can be proven that they are also accessing child abuse material or encouraging others to do so. Where this cannot be proven, there is limited criminal recourse against the individual.

94.             New subsection 474.23A(4) inserts a definition of electronic service into the Criminal Code . An electronic service means a service a purpose of which is to allow persons access to, or deliver, material by way of a carriage service. The reference to persons in the definition is read in accordance with paragraph 23(b) of the Acts Interpretation Act 1901 to also include a person in the singular. This definition is purposefully broad to capture a range of existing and future technologies, including hardware and software, which may be used by offenders to commit these crimes. Examples of electronic services include websites and chat fora, hosting services including cloud and web hosting, peer to peer sharing platforms and email distribution lists, as well as many others.

95.             The offence does not require the offender to undertake conduct in relation to the electronic service using a carriage service. Instead, the definition of electronic service provides that the service in question must be able to be accessed or used to deliver content by means of a carriage service, whether at the time of the offending or in the future. This relates to the offender’s intention that the electronic service will be used (by the offender or another person) to facilitate an offence contrary to sections 474.22 or 474.23, both of which include an element of undertaking the criminal behaviour using a carriage service.

96.             The purposive definition of electronic service means that the service does not need to be operational or “live” at the time the offending takes place. Similarly, an offender may be found guilty of the offence even if committing an offence against sections 474.22 or 474.23 is impossible for any reason. Together, these factors ensure that the offence applies to a wide range of factual circumstances and allows law enforcement to intervene at an early stage in the offending timeline. The application of the definition for electronic service will mean that the presumption and absolute liability provisions in section 475.1B relating to the physical element of use of a carriage service are unnecessary in the context of the new offence and do not apply.

97.             The inclusion of the carriage service requirement in the definition of electronic service provides the nexus between the new offence and the telecommunications head of legislative power in the Australian Constitution. 

98.             The physical element of this offence requires the offender to undertake conduct in relation to an electronic service. The range of conduct criminalised by this offence includes when the offender creates, develops, alters, maintains, controls, moderates, makes available, advertises or promotes an electronic service with the intention of facilitating dealings with child abuse material online. Examples of this conduct may include writing computer code, providing infrastructure to enable hosting of websites or moderating the content or use of a chat forum for the creation and sharing of child abuse material.

99.             New subparagraph 474.23A(1)(a)(iv) also captures an offender (Person A) who assists another person (Person B) to do any of the conduct listed above with the intention of facilitating dealings with child abuse material online. Unlike the complicity and common purpose provision in section 11.2 of the Criminal Code , subparagraph 474.23A(1)(a)(iv) does not require that Person B also commits an offence against section 474.23A. An example of this would include:

Person A instructs Person B, an employee of a legitimate website development company, to create a web content management system. Person A intends for the website to be used to facilitate dealings with child abuse material. Person B does not know what the website will be used for. Person A is guilty of assisting Person B to create an electronic service with the intention that the service will be used to facilitate dealings with child abuse material. Person B creates an electronic service but without intending for it to be used in this way. Person B cannot be guilty of an offence against new section 474.23A.

100.         Because new section 474.23A already envisages scenarios in which multiple people are involved in the offending, section 474.24A (Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people) does not apply to this offence.

101.         The mental element of this offence requires the offender to undertake the requisite conduct in relation to the electronic service with the intention that the service will be used in committing, or facilitating the commission of, an offence against sections 474.22 or 474.23. The offence does not require the prosecution to prove that a person (being the offender or someone else) actually used the requisite electronic service to commit an offence contrary to sections 474.22 or 474.23. 

102.         Section 11.1 of the Criminal Code does not apply to this offence, meaning that a person cannot attempt to commit an offence against section 474.23A.  The offence already covers a broad range of scenarios in the timeline of offending, ranging from the creation of an electronic service that has not yet gone live to the maintenance of an established website with a global following.

103.         New section 474.23A is not limited in application to offenders over 18 years of age. In accordance with section 474.24C of the Criminal Code , the Attorney-General must provide his consent to commence proceedings where the offender is under the age of 18. Section 474.24C ensures that there are sufficient safeguards to prevent the unnecessary prosecution of young persons.

104.         The offence will be punishable by a maximum penalty of 20 years’ imprisonment. This penalty reflects the higher level of culpability associated with an offence for facilitating the offending of others, including the promotion and creation of child abuse material.

105.         Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code , will apply to section 474.23A, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

Items 25 and 26 - Subsections 474.25A(1) and (2) of the Criminal Code (before the penalty)

106.         These items will insert notes in section 474.25A of the Criminal Code (using a carriage service for sexual activity with person under 16 years of age) to clarify that the scope of the conduct captured by the offence includes live-streamed child abuse. Section 474.25A was introduced with the purpose of ensuring that engaging in sexual activity with a child online is criminalised in a comparable way to equivalent activity engaged in in “real life”. The offences only capture sexual activity that occurs in “real time”, using a carriage service. Sexual activity with a child that does not occur in “real time” is captured by other Commonwealth, state or territory offences, including offences for transmitting child abuse material under sections 474.22 and 474.23 and offences for engaging in sexual activity with a child outside Australia in Division 272 of the Criminal Code .

107.         The notes reflect the scope of the conduct captured by the offences in section 474.25A by more clearly drawing attention to the existing definition of engaging in sexual activity in the Dictionary of the Criminal Code and as it applies to offences relating to the use of a carriage service involving sexual activity with persons under 16 years of age.

108.         Item 25 inserts a note after subsection 474.25A(1) (engaging in sexual activity with child using a carriage service). This note aims to clarify, by way of examples, that the offence covers a person using a carriage service to see or hear, in “real time”, a person under 16 years of age engage in sexual activity. This note also provides that the offence covers a person engaging in sexual activity that is seen or heard, in “real time”, by a person under 16 years of age using a carriage service.

109.         The definition of engage in sexual activity in the Dictionary of the Criminal Code ensures that a person is taken to   engage in sexual activity   if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

110.         Item 26 inserts a note after subsection 474.25A(2) (causing a child to engage in sexual activity with another person). The note aims to clarify, by way of example, that the offence covers causing a person under 16 years of age to engage in sexual activity that is seen or heard, in “real tim e”, by another person by using a carriage service, or to cause a person under 16 years of age to use a carriage service to see or hear, in “real time”, another person engage in sexual activity.

Item 27 - Section 474.25B of the Criminal Code (heading)

111.         This item repeals the heading before section 474.25B of the Criminal Code and replaces it with ‘Aggravated offence - using a carriage service for sexual activity with person under 16 years of age’. This item reflects the expansion of aggravating factors described in item 29 below to include two additional factors of aggravation in section 474.25B.

Item 28 - Paragraph 474.25B(1)(a) of the Criminal Code

112.         This item inserts reference to “the underlying offence” in existing paragraph 474.25B(1)(a) of the Criminal Code . This provides clarity in reference to the aggravated offences by ensuring that the “underlying offence”, for the purposes of this provision, means an offence against subsections 474.25A(1) or (2).

Item 29 - Section 474.25B of the Criminal Code - Aggravated offence - using a carriage service for sexual activity with person under 16 years of age

113.         This item introduces new aggravated offences that apply to the offence of using a carriage service to engage in sexual activity with a person under the age of 16 in section 474.25A. The item repeals existing paragraph 474.25B(1)(b) of the Criminal Code and replaces it with an expanded paragraph (b).

114.         Section 474.25B operates to criminalise a range of activities that aggravate the use of a carriage service for sexual activity with a child as criminalised under existing section 474.25A of the Criminal Code . Under the expanded paragraph (b), it will be an aggravated offence for a person to commit an offence against section 474.25A (using a carriage service for sexual activity with person under 16 years of age) where:

·          the child has a mental impairment (existing subparagraph 474.25B(1)(b)(i));

·          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 (existing subparagraph 474.25B(1)(b)(ii));

·          the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iii)); or

·          the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iv)).

115.         The new aggravated offences in subparagraphs 474.25B(1)(b)(iii) and 474.25B(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. The Government considers such circumstances to be so grave as to warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability.

116.         Subparagraph 474.25B(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in the underlying offence.

117.         This may include, for example, where the offender causes the child to be unconscious when committing the underlying offence or causes the child to be disfigured or dismembered.

118.         Subparagraph 474.25B(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in subsections 474.25A(1) or (2) (the underlying offence). “Physical harm” is limited to the definition of “physical harm” in the Criminal Code , which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances.

119.         The inclusion of the reference to “in connection with” is intended to cover treatment that occurs both before and / or after the sexual activity, and that is directly linked to the sexual activity.

120.         Subsection 474.28(7A) will continue to apply to this offence. By application of the default fault elements in section 5.6 of the Criminal Code , the fault element of recklessness will apply to a physical element of an offence that is a result. Under section 5.4 of the Criminal Code , a person is “reckless” with respect to a result if (a) he or she is aware of a substantial risk that the result will occur, and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.  

121.         Accordingly, to establish an offence under subparagraph 474.25B(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:

·          the person committed the underlying offence, and

·          the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and

·          the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and

·          having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity.

122.         To establish an offence under subparagraph 474.25B(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:

·          the person committed the underlying offence, and

·          the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and

·          the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and

·          having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity.

123.         These new aggravated offences will be punishable by a maximum penalty of 30 years’ imprisonment, as will be the penalty for the existing aggravated offences for sexual activity where the child has a mental impairment or the person is in a position of trust or authority in relation to the child (see item 18 of Schedule 5). This increased penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity.

Item 30 - After section 474.27 of the Criminal Code

124.         This item inserts a new section 474.27AA into the Criminal Code . This item will insert a new offence criminalising using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age for sexual activity.

125.         New section 474.27AA complements the existing procurement and grooming offences set out in sections 474.26, 474.27 and 474.25C of the Criminal Code . Proposed section 474.27AA contains three separate offences for the online “grooming” of third parties.

126.         The proposed offence in subsection 474.27AA(1) will address “grooming” where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with the sender.

127.         For example, an act of “grooming” a third party using a carriage service may include a person who is an adult (Person A) and is in a relationship with another adult (Person B), using their phone to text Person B offering to look after Person B’s son, who is under 16 years of age, with the intention of engaging in sexual activity with the son while Person B is away.

128.         The proposed offence in subsection 474.27AA(2) will address “grooming” where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another person (the participant).

129.         The proposed offence in subsection 474.27AA(3) will address “grooming” where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another child, under 18 years of age, in the presence of the sender or another person (the participant).

130.         The reference to “engage in sexual activity” in subparagraphs 474.27AA(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in “real life”. The definition of “engage in sexual activity” extends to an act that does not necessarily require physical contact and includes engaging in online sexual activity with a child. “Engage in sexual activity” also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

131.         The reference to “procure” in paragraphs 474.27AA(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. “Procure” is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in “consensual” sexual activity but also includes conduct where a sender may coerce a person into engaging in “non-consensual” activity. 

132.         Paragraphs 474.27AA(1)(d) and (2)(d), and subparagraph (3)(e)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions.

133.         The proposed maximum penalty is imprisonment for 15 years for each offence under section 474.27AA. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences of procurement (imprisonment 15 years) and “grooming” (imprisonment 15 years) which will be increased in Part 10.6 of the Criminal Code under items 12, 13, 19 and 20 of Schedule 5. The proposed maximum penalty of 15 years’ imprisonment is consistent with the serious nature of this type of offending behaviour. Grooming can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the child that is subject to the grooming behaviour. The maximum penalty recognises the harm done to the victims of this offence.

134.         The conduct in paragraphs 474.27AA(1)(a), (2)(a) and (3)(a) requires that a carriage service is used to engage in the criminalised conduct. This provides the relevant connection with the Commonwealth’s telecommunications power under the Australian Constitution.

135.         The presumption set out in section 475.1B of the Criminal Code that conduct is engaged in using a carriage service will apply as the offence will be inserted into Subdivision F of Division 474 of the Criminal Code . This presumption means that if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves contrary, that the person engaged in that conduct using a carriage service.

136.         Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code , will apply to section 474.27AA, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

Item 31 - Paragraph 474.28(1)(a) of the Criminal Code

137.         This item amends paragraph 474.28(1)(a) by inserting a reference to section 474.27AA so that absolute liability applies to the physical element of the circumstances of the offence that the child referred to is someone who is under 16 years of age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

Item 32 - Subsection 474.28(2) of the Criminal Code

138.         This item amends subsection 474.28(2) by inserting a reference to subsections 474.27AA(2) and 474.27AA(3) so that absolute liability applies to the physical element of the circumstances of the offence that the participant is at least 18 years of age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code.

Item 33 - Subsections 474.28(3) and (4) of the Criminal Code

139.         This item amends subsections 474.28(3) and (4) by repealing the subsections and replacing them with a new subsection 474.28(3). New subsection 474.28(3) provides that evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence that is contrary, proof that the defendant believed the person to be under, of, at least or over that age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

Item 34 - Subsection 474.28(8) of the Criminal Code

140.         This item amends paragraph 474.28(8) by inserting a reference to section 474.27AA so that a person may be found guilty for an offence under 474.27AA even if it is impossible for the sexual activity to take place. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

Items 35 to 37 - Subsection 474.28(9) of the Criminal Code

141.         Item 35 amends the heading of subsection 474.28(9) of the Criminal Code by repealing the heading and replacing it with a new heading: “Fictitious persons”. This amendment is consequential to item 37 of this schedule which inserts a new subsection 474.28(9A) into the Criminal Code after subsection 474.28(9) . New subsection 474.28(9A) makes it irrelevant for the purposes of an offence under 474.27AA whether a fictitious person is represented to the sender as a real person. This item expands the heading from “Fictitious recipient” to “fictitious persons” to reflect that subsections 474.28(9) and 474.28(9A) together refer to fictitious persons who may not exclusively be recipients.

142.         This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

143.         Item 36 applies subsection 474.28(9) to the operation of the offence for online “grooming” of third parties under section 474.27AA. Subsection 474.28(9) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code.

144.         Item 37 inserts a new subsection 474.28(9A) into subsection 474.28(9) of the Criminal Code . New subsection 474.28(9A) provides that, for the operation of section 474.27AA, it does not matter that the child is a fictitious person represented to the sender as a real person. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

Item 38 - Subsection 474.28(10) of the Criminal Code

145.         This item applies subsection 474.28(10) to the offence for online “grooming” of third parties under section 474.27AA. Section 474.28(10) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code . This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

Items 39 to 40 - Subsection 474.29(4) of the Criminal Code

146.         Item 39 amends the heading of subsection 474.29(4) of the Criminal Code by repealing the heading and replacing it with a new heading: “Procuring and “grooming” offences involving child engaging in sexual activity with other participant - belief that participant under 18 years of age”. The new heading makes clear that the person, referred to in the heading and the object of offences for grooming and procuring, is a child. This amendment is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

147.         Item 40 applies subsection 474.29(4) to subsections 474.27AA(2) and 474.27AA(3). Subsection 474.29(4) provides that it is a defence to a prosecution under subsections 474.27AA(2) and 474.27AA(3) if the defendant can prove that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 30 of this schedule which inserts a new offence for online “grooming” of third parties into the Criminal Code .

148.         The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code , the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

149.         While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant’s belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other “grooming” offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 474.27AA relating to the age of the participant (item 32 of this schedule).

Items 41 to 42 - Subsection 474.29(5) of the Criminal Code

150.         Item 41 amends the heading of subsection 474.29(5) of the Criminal Code by repealing the heading and replacing it with “Offences involving transmission of communication - belief that certain persons at least 16 years of age”. This amendment is consequential to item 30 of this schedule which inserts a new offence for the online “grooming” of third parties into the Criminal Code .

151.         Item 42 amends subsection 474.29(5) by inserting a new subsection 474.29(5A) into the Criminal Code . This amendment is consequential to item 30 of this schedule which inserts a new offence for the online “grooming” of third parties into the Criminal Code and provides that it is a defence to a prosecution under this new offence if the defendant can prove that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age. This ensures that this new offence for the online “grooming” of third parties only targets offenders who are trying to make it easier to engage in sexual activity with a child under the age of 16.

152.         The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code , the defendant must discharge this burden on the balance of probabilities. If the defendant does this, it is then for the prosecution to refute the matter beyond reasonable doubt.

153.         While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant’s belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other “grooming” offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 474.27AA relating to the age of the child (item 31 of this schedule).

154.         It is important to note that an offence will still be committed where the defendant believes the child to be under the age of 16 years, regardless of the actual circumstances of the offending. This is necessary to accommodate a standard investigatory technique where a law enforcement officer assumes the identity of a fictitious child to apprehend a potential adult offender before that offender has the opportunity to sexually abuse a real child.

Item 43 -Dictionary in the Criminal Code

155.         Item 43 inserts a reference to the definition of electronic service as defined in new section 474.23A into the Dictionary of the Criminal Code .

Part 2 - Amendments contingent on the Combatting Child Sexual Exploitation Legislation Amendment Act 2019

Criminal Code Act 1995

156.         This Part is drafted on the basis that it will commence after (and only if) the provisions in Schedules 2 and 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 receive the Royal Assent and commence.

Item 44 - Paragraph 474.23A(1)(b) of the Criminal Code

157.         This item is a contingent amendment to reflect the insertion by the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 of the new section 474.22A into the Criminal Code (which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service) and its interaction with the new section 474.23A of the Criminal Code (conduct for the purposes of electronic service used for child abuse material) proposed in this Bill.

158.         Item 24 of this schedule will insert new section 474.23A to criminalise the provision of an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code .

159.         Item 44 provides that, upon commencement of the new section 474.22A in the Criminal Code (which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service) which is proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, that new offence will also be one of the relevant offences listed in paragraph 474.23A(1)(b), alongside the existing offences of sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code .    

Item 45 - Paragraph 474.23A(2)(a)

160.         Item 45 would include the new offence proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service (proposed new section 474.22A of the Criminal Code ) in paragraph 474.23A(2)(a) as one of the offences which a person can be found guilty of even if committing an offence against the proposed new section 474.22A (like the existing sections 474.22 or 474.23) is impossible for any reason. This ensures that the offence applies to a wide range of factual circumstances and allows law enforcement to intervene at an early stage in the offending timeline.

Item 46 - Subsections 474.24(1), (3) and (4) of the Criminal Code

161.         This item ensures that the existing defences available under subsections 474.24(1), (3) and (4) of the Criminal Code for offences against sections 474.22 (using a carriage service for child abuse material) and 474.23 ( possessing child abuse material for use through a carriage service) of the Criminal Code are also available for the new offences proposed at item 24 of this Bill (new section 474.23A - conduct for the purposes of electronic service used for child abuse material).  



Schedule 5 Increased penalties

Criminal Code Act 1995

Items 1 and 2 - Subsections 272.8(1) and (2) of the Criminal Code (penalty)

162.         Item 1 repeals the existing penalty under subsection 272.8(1) of the Criminal Code (which criminalises sexual intercourse with a child outside Australia) and substitutes it with a maximum penalty of 25 years’ imprisonment.

163.         Item 2 repeals the existing penalty under subsection 272.8(2) of the Criminal Code (causing a child outside Australia to engage in sexual intercourse in presence of the defendant) and substitutes it with a maximum penalty of 25 years’ imprisonment.

164.         These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending.

Items 3 and 4 - Subsections 272.9(1) and (2) of the Criminal Code (penalty)

165.         Item 3 repeals the existing penalty and substitutes 20 years’ imprisonment as the maximum penalty available under subsection 272.9(1) of the Criminal Code (engaging in sexual activity with a child outside Australia).

166.         Item 4 repeals the existing penalty and substitutes 20 years’ imprisonment as the maximum penalty for offences against subsection 272.9(2) of the Criminal Code (causing a child outside Australia to engage in sexual activity in the presence of the defendant).

167.         These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 20 years’ imprisonment strikes an appropriate balance between the maximum penalty of 15 years’ imprisonment for offences preparatory to engaging in sexual activity with a child, including “grooming” offences, and the maximum penalty of 25 years’ imprisonment for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code ) as increased by items 1 and 2 of this schedule.

Items 5 and 6 - Subsection 272.10(1) and subsection 272.11(1) of the Criminal Code (penalty)

168.         Section  272.10 as amended by the Bill criminalises a range of activities that aggravate the offences in sections 272.8 and 272.9 of the Criminal Code , including where:

·          the child has a mental impairment

·          the defendant is in a position of trust in relation to the child

·          the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or

·          the child dies as a result of physical harm suffered in connection with the sexual activity. 

169.         Item 5 repeals the existing maximum penalty under subsection 272.10(1) of the Criminal Code and substitutes imprisonment for life as the maximum penalty.

170.         Item 6 repeals the existing maximum penalty under subsection 272.11(1) of the Criminal Code ( persistent sexual abuse - three or more occasions - of a child outside Australia ) and substitutes imprisonment for 30 years as the maximum penalty. 

171.         These items ensure that the maximum penalty available to the courts reflects the gravity of this aggravated offending and higher level of culpability. These items also ensure that the maximum penalty for each of these offences is also consistent with the proposed increase in the maximum penalty for the aggravated offences in item 18 of this schedule which similarly involve conduct on three or more occasions and two or more people.

Item 7 - Subsection 272.15(1) of the Criminal Code (penalty)

172.         Item 7 repeals the existing maximum penalty of 12 years’ imprisonment under subsection 272.15(1) and substitutes it with a maximum penalty of 15 years’ imprisonment.  

173.         The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm “grooming” has on a child victim. “Grooming” is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ “grooming” behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of “grooming” can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of “grooming”) the perpetrator impacts the child victim’s psychosocial development.

Items 8 and 9 - Subsections 272.18(1) and 272.19(1) of the Criminal Code (penalty)

174.         Items 8 and 9 repeals the existing maximum penalty:

·          under subsection 272.18(1) of the Criminal Code (benefitting from a sexual offence against a child outside Australia) and substitutes it with a maximum penalty of 25 years’ imprisonment, and

·          under subsection 272.19(1) of the Criminal Code (encouraging a sexual offence against a child outside Australia) and substitutes it with a maximum penalty of 25 years’ imprisonment.

175.         These items ensure that the maximum penalty available for these offences reflects the gravity of the offending.

Items 10 and 11 - Subsections 273.7(1) and 471.22(1) of the Criminal Code (penalty)

176.         These items repeal the existing maximum penalty for the following aggravated offences involving conduct on three or more occasions and two or more people:

·          under subsection 273.7(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years’ imprisonment, and

·          under subsection 471.22(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years’ imprisonment.

177.         These items ensure that the maximum penalty available to the courts for these aggravated offences reflects the gravity of the offending and higher level of culpability.

Items 12 and 13 - Subsections 471.25(1) and (2) of the Criminal Code (Using a postal or similar service to “groom” persons under 16)

178.         Items 12 and 13 repeal the existing maximum penalties of 12 years’ imprisonment for offences under subsections 471.25(1) and 471.25(2) of the Criminal Code (using a postal or similar service to “groom” persons under 16) and substitute them with a maximum penalty of 15 years’ imprisonment.

179.         The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm “grooming” has on a child victim. “Grooming” is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ ‘grooming’ behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of “grooming” can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of “grooming”) the perpetrator impacts the child victim’s psychosocial development.

Item 14 - Subsection 471.26(1) of the Criminal Code

180.         Item 14 repeals the existing maximum penalty of 7 years’ imprisonment in subsection 471.26(1) of the Criminal Code (using a postal or similar service to send indecent material to a person under 16) and substitutes this with a maximum penalty of 10 years’ imprisonment. A comparative increase will be made to section 474.27A (using a carriage service to transmit indecent communication to person under 16 years of age) - see item 21 of this schedule below.

181.         This will also bring the maximum penalty in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim.

Item 15 - Subsection 474.24A(1) of the Criminal Code (penalty)

182.         This item repeals the existing maximum penalty under subsection 474.24A(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years’ imprisonment. Subsection 474.24A(1) is an aggravated offence and the proposed increased penalty better reflects the gravity of the offending and the higher level of culpability associated with an offence involving conduct on three or more occasions and two or more people.

Items 16 and 17 - Subsections 474.25A(1) and (2) of the Criminal Code (penalty)

183.         Item 16 substitutes 20 years’ imprisonment as the maximum penalty available under subsection 474.25A(1) of the Criminal Code (engaging in sexual activity with a child using a carriage service).

184.         Consistent with item 16, item 17 provides that the maximum penalty for offences against subsection 474.25A(2) of the Criminal Code (causing a child to engage in sexual activity with another person using a carriage service) is 20 years’ imprisonment.

185.         These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 20 years’ imprisonment for these offences strikes an appropriate balance between the maximum penalty of 15 years’ imprisonment for offences preparatory to engaging in sexual activity with a child, including procuring and “grooming” offences, and the new maximum penalty of 25 years’ imprisonment (see items 1 and 2 of this Schedule) for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code ).

Item 18 - Subsection 474.25B(1) of the Criminal Code (penalty)

186.         Section 474.25B operates to criminalise a range of activities that aggravate the use of a carriage service for sexual activity with a child as criminalised under existing section 474.25A of the Criminal Code . Item 18 repeals the existing penalty at subsection 474.25B(1) of the Criminal Code of 25 years’ imprisonment and substitutes 30 years’ imprisonment as the maximum penalty available to the courts.

187.         This increased penalty reflects the higher level of culpability associated with the existing aggravated offences set out in section 474.25B (sexual activity where the child has a mental impairment or the person is in a position of trust or authority in relation to the child) as well as the new aggravated offences of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity (as inserted by item 29 of Schedule 4).

Items 19 and 20 - Subsections 474.27(1) and (2) of the Criminal Code (penalty)

188.         Items 19 and 20 repeal the existing maximum penalties of 12 years’ imprisonment for offences under subsections 474.27(1) and 474.27(2) of the Criminal Code (using a carriage service to “groom” persons under 16 years of age) and substitute these with maximum penalties of 15 years’ imprisonment.

189.         The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm “grooming” has on a child victim. “Grooming” is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ “grooming” behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of “grooming” can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of “grooming”) the perpetrator impacts the child victim’s psychosocial development.

Item 21 - Subsection 474.27A(1) of the Criminal Code (penalty)

190.         Item 21 repeals the existing maximum penalty of 7 years’ imprisonment in subsection 474.27A(1) of the Criminal Code and substitutes this with a maximum penalty of 10 years’ imprisonment.

191.         This brings the term of imprisonment in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim.

Application of the increased penalties

192.         The increased maximum penalties will not apply retrospectively where a person has been convicted of an offence committed before the commencement of this Schedule but subsequently sentenced after commencement of the Schedule. That is, the maximum penalty available for the offence at the time it was committed will be the applicable maximum penalty available to the court. 



Schedule 6 Minimum sentences

Part 1 - Main amendments

Crimes Act 1914

193.         Child sexual abuse and conduct such as “grooming” and procuring has significant impacts on child victims and the community. Accordingly, a significant penalty is necessary to protect the community, reflect the harm done to victims and deter others from offending.  

194.         This Schedule inserts mandatory minimum penalties into the Crimes Act . Mandatory minimum penalties will apply in two circumstances: firstly, for offences classified as the most serious Commonwealth child sex offences (section 16AAA); secondly, to all Commonwealth child sex offences (excluding section 474.25C of the Criminal Code ) where the Commonwealth child sex offence(s) are a second or subsequent offence (section 16AAB).

195.         Mandatory minimum penalties do not limit judicial discretion of courts to set the non-parole period. With the exception of a limited number of offences (such as terrorism, treason and espionage), the Crimes Act does not prescribe how a non-parole period should be determined.

196.         This Schedule does not impact the current requirement for the courts to consider all the circumstances, including the matters listed in section 16A of the Crimes Act , when fixing a non-parole period. This allows the courts to take into account individual circumstances and any mitigating factors in considering the most suitable non-parole period.

  Item 1 - At the end of subsection 16A(1)

197.         This item clarifies that, despite section 16A(1), there will be applicable minimum penalties for certain Commonwealth child sex offences under proposed sections 16AAA, 16AAB and 16AAC.

Item 2 - After section 16AA

Section 16AAA Minimum penalties for certain offences

198.         The proposed section 16AAA and relevant table establishes that if a person is subject to an offence or offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2. For example, where a person commits an offence against section 272.8(1) of the Criminal Code (sexual intercourse with a child outside Australia), the person must be sentenced to a minimum penalty of 6 years’ imprisonment, subject to the reduction principles in proposed section 16AAC. It is also noted that in accordance with existing Commonwealth law, the maximum penalty of life imprisonment is taken to be 30 years’ imprisonment for the purposes of calculating the mandatory minimum.

199.         The offences included under the proposed section 16AAA attract a minimum penalty upon a first and subsequent conviction. The offences are limited to the serious Commonwealth child sex offences involving engaging in sexual activity with children or aggravated offences within Division 272, 273, 471 and 474 of the Criminal Code .

Section 16AAB Second or subsequent offence

200.         The proposed section 16AAB and relevant table sets out the minimum penalty a person is to be sentenced for an individual offence where that offence is a second or subsequent offence and the requirements for applying the second or subsequent offence minimum penalties are met.

201.         For second or subsequent offence minimum penalties to apply, the person must be convicted of a “Commonwealth child sexual abuse offence”. The definition of “Commonwealth child sexual abuse offence” will be set out in the definitions section of the Crimes Act (see item 1, Schedule 14 - Definitions) to mean a Commonwealth child sexual abuse offence other than a serious offence captured by proposed section 16AAA above.

202.         The proposed subsection 16AAB(1) sets out the circumstances that must be met before minimum penalties can be applied to an offence for being a second or subsequent offence. The proposed paragraph 16AAB(1)(a) requires that the person has been convicted and is being sentenced for a Commonwealth child sexual abuse offence (the current offence). 

203.         The proposed paragraph 16AAB(1)(b) requires that the person must have been convicted previously of a child sexual abuse offence in an earlier sitting. The reference to “in an earlier sitting” is intended to exclude a first time offender being subject to the minimum penalties where the person has been convicted and is now being sentenced for multiple “child sexual abuse offence(s)”. Paragraph 16AAB(1)(b) utilises the definition of “child sexual abuse offence” to be inserted in the Crimes Act which includes certain Commonwealth child sex offences as well as state and territory registrable child sex offences (see item 1 of Schedule 14).

204.         The proposed section 16AAB and relevant table establishes that if a person is subject to the offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2, subject to any reductions under proposed section 16AAC. The offences within the table are the remainder of the child sexual abuse offences except sections 474.25 and 474.25C of the Criminal Code .  

205.         Section 474.25 of the Criminal Code is not suitable for mandatory minimum penalties due to the offence being for Internet Service Providers and Internet Content Hosts. The penalty for section 474.25 of the Criminal Code was recently increased from 100 penalty units to 800 penalty units by the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 .

206.         Section 474.25C of the Criminal Code is an offence targeted at the very preliminary stages of the offending spectrum. It captures those who engage in conduct to prepare to cause harm, without the need to demonstrate a sexual intent. As such, mandatory minimum penalties will not apply to section 474.25C of the Criminal Code .

207.         An example of the mechanics of the second or subsequent offence minimum penalties regime would be where an offender has previously been convicted of a state or territory child abuse material possession offence 12 months ago and that offender is now being sentenced for accessing child abuse material through a carriage service. The court would be required to apply a minimum penalty of 4 years, subject to any reductions under proposed section 16AAC.

Section 16AAC Exclusions and reductions - minimum penalties

208.         The proposed section 16AAC sets out the exclusions and reductions to the mandatory minimum penalties.

Exclusion - People aged under 18

209.         Proposed subsection 16AAC(1) provides that offenders who were under the age of 18 years when they committed a Commonwealth child sex offence are excluded from the minimum penalty that would otherwise be applicable under proposed section 16AAA or 16AAB.

Reduction of minimum penalty

210.         The Bill recognises the value of a guilty plea and cooperation with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective criminal justice system and to reduce impacts on witnesses and victims. As such, the courts are able to exercise a degree of discretion when imposing the minimum penalties.

211.         The proposed subsection 16AAC(2) permits the court to impose a sentence of imprisonment of less than the minimum penalties specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2). This can be done if the court considers it appropriate to reduce the sentence because of either or both of the following:

(a)     the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act , the person pleading guilty, and

(b)    the court is taking into account, under paragraph 16A(2)(h) of the Crimes Act , the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.

212.         In reducing the minimum penalty, the proposed subsection 16AAC(3) sets out the restrictions on any reductions done so under the proposed subsection 16AAC(2). Proposed paragraph 16AAC(3)(a) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed paragraph 16AAC(2)(a) (guilty plea). Proposed paragraph 16AAC(3)(b) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed paragraph 16AAC(2)(b) (law enforcement cooperation). The proposed paragraph 16AAC(3)(c) allows for a reduction of up to 50% taking into account both of the matters in paragraphs (a) and (b).

213.         The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the tables in section 16AAA and subsection 16AAB(2).

Item 3 - Application provisions

214.         Subitem 3(1) ensures that the mandatory minimum penalties only apply in relation to conduct engaged in, on or after the commencement of Part 1 of Schedule 6.

215.         Subitem 3(2) allows for previous convictions of conduct that would amount to a “child sexual abuse offence” regardless of whether the relevant previous conviction of the person occurred before, on or after the commencement of Part 1 of Schedule 6. This ensures that, in determining second and subsequent mandatory penalties, any previous convictions of child sexual abuse conduct are captured.

Part 2 - Technical amendments

Crimes Act 1914

Item 4 - Subsection 16(1) (definition of victim impact statement)

216.         This item substitutes the reference to section 16AAA of the Crimes Act with section 16AAAA, as a result of the renumbering of the provision.

Item 5 - Section 16AAA

217.         This item renumbers 16AAA of the Crimes Act as section 16AAAA.

Item 6 - Paragraph 16A(2)(h)

218.          This item is a technical amendment to ensure compliance with current legislative drafting practices. 

Item 7 - Saving provision

219.         This item ensures that the renumbering in item 5 does not impact on the validity of any instrument in force immediately before the commencement of this item. 

Part 3 - Amendments contingent on the Combatting Child Sexual Exploitation Legislation Amendment Act 2019

Division 1 - Amendments relating to the offence of possession of child-like sex dolls etc.

Crimes Act 1914

Item 8 - Subsection 16AAB(2) (after table item 10)

220.         This item provides that the minimum penalty applicable for the new offence proposed in Schedule 2 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 criminalising possession of child-like sex dolls will be four years’ imprisonment, in circumstances where it is a second or subsequent offence.

221.         As set out in the commencement information, this item does not commence if the proposed offence does not commence.  

Division 2 - Amendments relating to the offence of possessing or controlling child abuse material obtained or accessed using a carriage service

Crimes Act 1914

Item 9 - Subsection 16AAB(2) (after table item 24)

222.         This item provides that the minimum penalty applicable for the new offence proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 criminalising the possession or control of child abuse material obtained or accessed using a carriage service will be four years’ imprisonment, in circumstances where it is a second or subsequent child sex offence.

223.         As set out in the commencement information, this item does not commence if the proposed offence does not commence.  



Schedule 7 Presumption against bail

224.         Schedule 7 amends the existing section 15AA of the Crimes Act and creates a presumption against bail for a person alleged to have committed a Commonwealth child sex offence to which the minimum penalty scheme set out in Schedule 6 would apply, and other associated amendments to section 15AA.

Part 1 - Court records

Division 1 - Main amendments

Crimes Act 1914

Item 1 - After subsection 15AA(3)

225.         The proposed subsection 15AA(3AAA) requires that where a bail authority is a court and grants bail, the court must state the reasons for doing so, and cause those reasons to be entered in the court’s records. Given the seriousness of the offences to which section 15AA of the Crimes Act applies, and the potential risk to the community if bail is granted, it is important that the court be required to state its reasons for granting bail.

Item 2 - Application provision

226.         The proposed amendment to section 15AA will apply to decisions made on or after the commencement of the Bill by a bail authority to grant bail to a person charged with, or convicted of, an offence.

Division 2 - Amendments contingent on the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019

Crimes Act 1914

Item 3 - Before subsection 15AA(3AAA)

227.         This item inserts a heading for the proposed new subsection 15AA(3AAA) in accordance with current legislative drafting practices.

Part 2 - Commonwealth child sex offenders

Crimes Act 1914

228.         This Part introduces an offence-based presumption against bail for certain Commonwealth child sex offences.

229.         The criminal conduct involved in this crime type targets one of the most vulnerable groups in the community — children. While bail conditions may act as an effective deterrent to reoffending, they are only as good as the practical measures taken to enforce those conditions. The ease in using anonymising practices such as encryption and virtual private networks makes the enforcement of conditions particularly difficult where that relates to internet offending.

230.         This Part only applies to offences that attract a minimum penalty as set out in Schedule 6, namely the most serious Commonwealth child sex offences and those offences where the alleged perpetrator has a previous conviction(s) for a child sex offence(s).

231.         The intention of the Part is to provide that for the protection of the community, the starting point is that bail be refused for persons alleged to have committed a Commonwealth child sex offence to which the minimum penalty scheme in Schedule 6 would apply, unless circumstances exist justifying the grant of bail. The presumption against bail is rebuttable and provides judicial discretion in determining whether a person’s risk on bail can be mitigated through appropriate conditions which make the granting of bail appropriate in the circumstances. Flexibility is provided by the open nature of the presumption which is not limited to specific criteria.

Item 4 - After section 15AA

232.         This item inserts proposed section 15AAA which sets out to what offences the presumption against bail applies.

233.         The proposed paragraph 15AAA(1)(a) applies the presumption against persons charged with, or convicted of, the most serious Commonwealth child sex offences to which mandatory minimum penalties apply (see table in the proposed section 16AAA in Schedule 6).

234.         The proposed paragraph 15AAA(1)(b) applies the presumption for all offences subject to a mandatory minimum penalty on a second or subsequent offence (see proposed table under subsection 16AAB(2) in Schedule 6), that is, where the person seeking bail for such an offence has been previously convicted of a child sexual abuse offence. The definition of a child sexual abuse offence will be inserted item 1 of Schedule 14.

235.         Applying this definition, the proposed paragraph 15AAA(1)(b) captures persons previously convicted of state and territory registrable child sex offences and Commonwealth child sex offences. It will also capture child sex offences which were committed under Commonwealth legislation that has since been repealed (item 1 of Schedule 14 also refers)

236.         Proposed subsection 15AAA(2) will require that, in addition to any other matters, a bail authority be satisfied that circumstances exist to grant bail to a person taking into account such of the matters outlined in paragraphs 15AAA(2)(a) - (f) as are relevant and known to the bail authority. 

237.         In considering these matters, the bail authority will be required, as part of its assessment, to consider the bail conditions which could reasonably be imposed on the person to address those matters.

238.         Proposed paragraph 15AAA(2)(a) requires that the bail authority consider whether the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail.

239.         Proposed paragraph 15AAA(2)(b) requires the bail authority consider whether the person would be likely to commit a further offence if the person were granted bail.

240.         Proposed paragraph 15AAA(2)(c) requires the bail authority consider whether the person would likely put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail.

241.         Proposed paragraph 15AAA(2)(d) requires the bail authority consider whether a person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail.

242.         Proposed paragraph 15AAA(2)(e) requires the bail authority to consider the impact a refusal of bail would have on someone who is aged under 18 years. A person who is under the age of 18 years can be severely affected by being remanded into custody and a decision to do so should be considered a matter of last resort.

243.         Where a person has pleaded guilty to a charge or been convicted of the offence, proposed section 15AAA(2)(f) requires the bail authority to consider whether that person would not be likely to undertake a rehabilitation program, or not comply with any bail conditions relating to rehabilitation or treatment, while released on bail. A key aspect of preventing further offending for this crime type may be active participation in, and compliance with, rehabilitation or treatment programs.

244.         The person will have the opportunity to put forward relevant information regarding the above factors and any other information to demonstrate their suitability to be released on bail. If the bail authority is satisfied by the person that the above matters can be addressed through bail conditions, and there are no other matters the bail authority deems relevant to the refusal of granting bail, the person may be released on bail.

245.         Consistent with the proposed new section 15AA(3AAA), where a bail authority is a court and does grant bail, the court must state those reasons, and cause those reasons to be entered in the court’s records. Given the seriousness of the offences to which the proposed new section 15AAA of the Crimes Act would apply, and the potential risk to the most vulnerable members of the community if bail is granted, it is important that the court be required to state its reasons for granting bail.

246.         Despite any law of the Commonwealth, subsection 15AAA(4) ensures there is right of appeal for the Director of Public Prosecutions or the person against the decision of a bail authority where bail is granted or refused pursuant to subsection 15AAA(1).

247.         Subsections 15AAA(5) - (7) set out how an appeal may be initiated, notification requirements for the Director of Public Prosecutions, and when a decision is stayed until appeal decision. Subsections 15AAA(5)-(8) are similar to the existing provisions relating to the presumption against bail in section 15AA of the Crimes Act . Subsection 15AAA(8) puts beyond doubt that subsections 15AAA(1), (4), (5), (6) and (7) override state and territory laws.

Item 5 - Application provisions

248.         Subitem 5(1) ensures that the proposed section 15AAA will apply to decisions made on or after the commencement of this Part by a bail authority to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

249.         Given the proposed amendments to the definition of ‘ Commonwealth child sex offence’ before the commencement of the Bill (for example, the amalgamation of the terms ‘ child pornography material’ and ‘ child abuse material’ into the single definition of ‘ child abuse material’ ) as proposed in Schedule 7 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, subitem 5(2) ensures that section 15AAA applies in relation to that conduct as if, on or after that commencement, that conduct before commencement constituted a ‘ Commonwealth child sex offence’ . For example, if a person committed an offence that would constitute a repealed ‘child pornography material’ offence before the commencement, the proposed new bail rules would be applicable to that person after the date of commencement.

250.         The proposed repealing of provisions relating to “child pornography material” as set out in Schedule 7 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 does not remove the criminality attached to conduct that would attract those offences but encapsulate it through expansion of the existing definition of “child abuse material”. Accordingly, sub-item 5(2) preserves the application of new 15AAA in relation to that conduct as if, on or after that commencement, that conduct constituted a Commonwealth child sex offence.



Schedule 8—Matters court has regard to when passing sentence etc. 

Crimes Act 1914

Items 1 and 2 - Paragraph 16A(2)(g) and after paragraph 16A(2)(m)

251.         These items introduce additional general sentencing factors to which the court must have regard when sentencing a federal offender. The existing paragraph 16A(2)(g) is expanded upon so that in addition to considering the fact that the person pleaded guilty to the charge in respect of the offence, regard is also to be had to the timing of that plea and the degree to which these factors resulted in any benefit to the community or to any victim of or witness to the offence.

252.         The amendment to paragraph 16A(2)(g) is an acknowledgement that is it appropriate for offenders to be offered a reduction in their sentence for an early guilty plea, as early guilty pleas reduce the costs associated with prosecuting offenders and save victims and witnesses from the often harrowing experience of giving evidence and being cross-examined in open court.

253.         Proposed paragraph 16A(2)(ma) introduces a new sentencing consideration regarding whether the person’s standing in the community was used to aid in the commission of the offence. Where this is the case it is to be taken as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.

254.         It is intended that this will capture scenarios where a person’s professional or community standing is used as an opportunity for the offender to sexually abuse children. For example, this would cover a medical professional using their professional standing as a medical practitioner, or a person using celebrity status, to create opportunities to sexually abuse children .

Item 3 - After subsection 16A(2)

255.         This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing Commonwealth child sex offenders. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity.

256.         This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program.

257.         The new subsection 16A(2AAA) of the Crimes Act requires the court to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Under proposed subsection 16A(2AAA) the court will have to consider if it would be appropriate to make orders imposing conditions about rehabilitation or treatment options. A further consideration is whether the sentence or non-parole period provides sufficient time for the person to undertake rehabilitation. For example, generally a non-parole period of 18 months to two years is necessary for offenders to complete a sex offender rehabilitation program while in prison.

258.         In taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender .

Item 4 - Subsection 16A(2A)

259.         This item makes it clear that paragraph 16A(2)(ma) has primacy over 16A(2) of the Crimes Act . The prohibition in subsection 16A(2A) against taking into account any form of customary law or cultural practice as a reason for aggravating the seriousness of the criminal behaviour does not apply if this is what gave rise to the person’s standing in the community and was used by the person to aid in the commission of the offence.

Item 5 - Subsection 16A(3)

260.         Item 5 is a consequential amendment to item 3 of this Schedule. The purpose of subsection 16A(3) of the Crimes Act is to give further guidance to the courts in considering whether to impose an order under sections 19B, 20 and 20AB of the Crimes Act instead of imprisonment as the appropriate punishment. The matters that a court in this situation is to consider are the nature and severity of the conditions that may be imposed on the person.  

Criminal Code Act 1995

Item 6 - Subsection 272.30(2) of the Criminal Code

261.         Item 6 is a consequential amendment to item 3 of this Schedule. Subsection 272.30(2) of the Criminal Code sets out sentencing factors to be taken into consideration for an offence against subdivision B of Division 272 of the Criminal Code (sexual offences against children outside Australia), but makes it clear that these considerations are in addition to any other matters the court must take into account, including subsection 16A(2) of the Crimes Act . This item amends this to cover section 16A of the Crimes Act more broadly.

Item 7 - Application provision

262.         This item provides that the amendments made by Schedule 8 apply in relation to determining a sentence to be passed, or an order to be made, in respect of a person for a federal offence, regardless of whether than person was charged with or convicted of the offence before or after commencement of this Schedule.



Schedule 9—Additional sentencing factors for certain offences

Criminal Code Act 1995

Item 1 - Subsection 272.30(1) of the Criminal Code

263.           Item 1 inserts new additional factors for mandatory consideration at sentencing, including one aggravated factor and one relevant factor.

264.         When sentencing a person convicted of an offence in Subdivision B of Division 272 of the Criminal Code (sexual offences against children outside Australia), the court must now take into account as an aggravating factor if the person in relation to whom the offence was committed was under 10 years of age at the time of offending.

265.         The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of the sentence of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending.

266.         The court must now also take into account as a relevant factor the number of people involved in the offending. This recognises that in certain instances, offences against Subdivision B of Division 272 of the Criminal Code are potentially more serious and harmful to victims if multiple people are involved, so far as these matters are relevant and known to the court.

Item 2 - After subsection 272.30(1) of the Criminal Code

267.         Item 2 inserts subsection 272.30(1A) which limits the court’s requirement to consider the matters in paragraphs 272.30(1)(a) and (c) to occasions where the matters in those paragraphs are relevant and known to the court. 

Item 3 - At the end of Subdivision C of Division 471 of the Criminal Code

268.         Item 3 inserts section 471.29A in Division 471 of the Criminal Code (offences relating to use of postal or similar service involving sexual activity with person under 16). Subsection 471.29A(1) of the Criminal Code provides that a court, when determining the sentence or the order to be made against a person for an offence against Subdivision C of Division 471 of the Criminal Code , must consider:

·          the age and maturity of the victim or intended victim of the offence, and

·          if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and

·          the number of people involved in the commission of the offence.

269.         The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that the sexual history of the victim be taken into account when considering their maturity.

270.         The seriousness of offending behaviour in Subdivision C of Division 471 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending. 

271.         The court must also take into account as a relevant sentencing factor the number of people involved in the offending. This recognises that, in certain instances, offences against Subdivision C of Division 471 of the Criminal Code are potentially more serious and harmful to victims if multiple people are involved.

272.         Proposed section 471.29A of the Criminal Code provides that the court is required to take these factors into account as far as they may be known to the court. The factors in paragraphs 471.29A(1)(a) and (c) need only be considered if they are relevant, whereas the factor in paragraph 471.29A(1)(b), when known, must always be considered.

273.         The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings.

274.         Proposed new subsection 471.29A(3) ensures that the matters mentioned in subsection 471.29A(1) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act , which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences.

Item 4 - At the end of Subdivision F of Division 474 of the Criminal Code

275.         Item 4 inserts section 474.29AA in Division 474 of the Criminal Code .   Subsection 474.29AA(1) provides that a court, when determining the sentence or the order to be made against a person for an offence against Subdivision F of Division 474 of the Criminal Code (offences relating to use of carriage service involving sexual activity with person under 16), must consider:

·          the age and maturity of the victim or intended victim of the offence, and

·          if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and

·          the number of people involved in the commission of the offence.

276.         The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim or intended victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that sexual history of the victim be taken into account when considering their maturity. 

277.         The seriousness of offending behaviour in Subdivision F of Division 474 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of the offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending. 

278.         The court must also take into account, as a relevant sentencing factor, the number of people involved in the offending. This factor recognises that, in certain instances, offences against Subdivision F of Division 474 of the Criminal Code are potentially more serious and harmful to the victim if multiple people are involved.

279.         Proposed section 474.29AA of the Criminal Code provides that the court is required to take these factors into account as far as they may be known to the court. The factors in proposed paragraphs 474.29AA(1)(a) and (c) need only be considered if they are relevant, whereas the factor in proposed paragraph 474.29AA(1)(b), when known, must always be considered.

280.         The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings.

281.         Proposed subsection 474.29AA(3) of the Criminal Code ensures that the matters mentioned in subsections 474.29AA(1) and (2) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act , which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences.

Item 5 - Application provision

282.         Item 5 prescribes the application of the amendments made by Schedule 9. This provision ensures that the amendments made by Schedule 9 apply in determining the sentence to be passed (or order to be made) for a person for an offence that is committed on or after commencement of this item.



Schedule 10—Cumulative sentences

Crimes Act 1914

283.         This Schedule inserts a presumption in favour of cumulative sentences when sentencing Commonwealth child sex offenders and the respective requirements in applying that presumption.

Item 1 - Before subsection 19(1)

284.         This item inserts the sub heading “General requirements” before subsection 19(1) of the Crimes Act to aid the readability of the section. Its inclusion indicates that the requirements under existing subsections 19(1) - (4) apply to sentencing all federal offenders. This requires that the courts follow the general rules concerning commencement dates and preventing gaps between sentences. 

Item 2 - At the end of section 19

285.         This item inserts proposed subsections 19(5) - (7) which provide additional requirements the court must have regard to when sentencing Commonwealth child sex offenders. Proposed subsection 19(5) requires that when sentencing an offender for a Commonwealth child sex offence a court must not make an order that has the effect that a term of imprisonment for that offence would be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment. This presumption in favour of cumulative sentences only operates where a person is being sentenced for multiple Commonwealth child sex offences or Commonwealth child sex offences in addition to a state or territory registrable child sex offence.

286.         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 to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children. It benefits circumstances such as where offences are committed against separate victims over an extended period of time. The proposed subsection 19(6) provides an exception to this rule where the court is satisfied that imposing a sentence in a different manner (such as partly cumulatively or concurrently) would be of a severity appropriate in all the circumstances.

287.         The proposed subsection 19(6) recognises there will be circumstances where the application of this presumption would result in an unacceptable outcome. Accordingly, discretion is retained for the court to consider the outcome for all the offences in totality and, if appropriately satisfied, order the sentence in a different manner provided that the sentence overall is still of a severity appropriate in all the circumstances.

288.         However, the proposed subsection 19(7) requires that where a court under subsection 19(6) is satisfied that the sentences do not need to be served cumulatively, the court must explain the reasons for being so satisfied and ensure that the reasons are entered in the records of the court. Given the significant difference that decisions of the court on this aspect can make to the total length of the sentence imposed on an offender - and the justice outcome for the victim - it is important that the court is required to explain its reasons.

Item 3 - Application provision

289.         This item provides that the presumption in favour of cumulative sentencing applies to sentencing orders made on or after the commencement of this Schedule where the offences to which the sentences relate were committed on or after that commencement.



Schedule 11—Conditional release of offenders after conviction

Crimes Act 1914

290.         Currently, child sex offenders who are sentenced to three years or less imprisonment are sentenced to recognizance release orders. This means that they are released into the community immediately or after serving a period of imprisonment. Many such offenders receive wholly suspended sentences, meaning that they are immediately released without serving any period of time in custody, and often without any supervision conditions. This is out of step with community expectations, presents a risk to community safety and does not reflect the severity of the often life long harm inflicted on the victims.  

291.         The introduction of a presumption in favour of an actual term of imprisonment as set out in this Schedule still provides the courts with enough discretion in setting the pre-release period under a recognizance release order to enable individual circumstances to be taken into account while ensuring that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes.

Item 1 - Paragraph 20(1)(b)

292.         This item requires that a child sex offender serve an actual term of imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. This amendment is intended to ensure that all offenders convicted of Commonwealth child sex offences serve a period of imprisonment that is not suspended. Commonwealth child sex offence is defined in item 1 of Schedule 14 of the Bill.

293.         Paragraph 20(1)(b)(i) applies to people convicted of a Commonwealth offence that is not a Commonwealth child sex offence. It preserves the current position and provides that the court can order that the offender be released either immediately or after serving only a portion of the sentence of imprisonment. 

294.         Paragraphs 20(1)(b)(ii) and 20(1)(b)(iii) apply to people convicted of a Commonwealth child sex offence and provide that the court can only release a person on a recognizance release order immediately (without serving any period of imprisonment) if the court is satisfied that there are exceptional circumstances. Otherwise the child sex offender will have to serve an actual term of imprisonment before being released into the community on recognizance.

295.         The term ‘exceptional circumstances’ under paragraph 20(1)(b)(ii) is deliberately not defined. Given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if ‘exceptional circumstances’ was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold. Second, a list of factors said to constitute ‘exceptional circumstances’, even if stated in broad terms, will have the tendency to restrict, rather than expand, the factors which might satisfy the requirements for ‘exceptional circumstances’.

 

Item 2 - Subsection 20(1A)

296.         This is a consequential amendment to item 3. It makes subsection 20(1A) of the Crimes Act subject to subsection 20(1B) of the Crimes Act , making it clear that persons convicted of child sex offences are subject to the specific conditions set out in subsection 20(1B) of the Crimes Act .

Item 3 - After subsection 20(1A)

297.         This item inserts a new subsection after subsection 20(1A) of the Crimes Act to require that a court making a recognizance release order for a child sex offender must attach certain conditions to the order. This differs from the requirements for other federal offenders who, although they must comply with the general condition to be of good behaviour, may or may not be subject to other conditions.    

298.         The conditions that will apply to child sex offenders under new subsection 20(1B) are that the person will, during the specified period:

·          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.

299.         Importantly, the directions of the probation officer must be reasonable. For example, a direction to attend a rehabilitation program in a different city to which the person lives would not be reasonable as it may be impossible to fulfil.

Item 4 - Application and saving provisions

300.          Subitem 4(1) provides that the amendments made by this Schedule apply in relation to an order made on or after commencement of this Schedule when sentencing a person in respect of an offence committed on or after that commencement.

301.         Subitem 4(2) provides that the repeal and substitution of paragraph 20(1)(b) does not affect the validity of an order given under that paragraph before the commencement of this Schedule.



Schedule 12—Additional sentencing alternatives

Crimes Act 1914

Item 1 - After subparagraph 20AB(1AA)(a)(vii)

302.         This item amends the list of sentencing alternatives in subsection 20AB(1AA) of the Crimes Act to include ‘residential treatment orders’. Section 20AB(1AA) empowers courts to make certain alternative sentencing orders that are available under state or territory law. The new subparagraph is intended to capture the residential treatment order available under section 82AA of the Sentencing Act 1991 (Vic) , as well as any similar orders that may exist or be enacted in other states and territories. It is appropriate that courts have the discretion to access such orders that have been designed to specifically meet the needs of certain classes of offenders.

Item 2 - Subsection 20BQ(3)

303.         This item provides that if the court makes an order under section 19BQ of the Crimes Act in respect of a person suffering from a mental illness or intellectual disability, it can still make a residential treatment order under the proposed subparagraph 20AB(1AA)(a)(viia) inserted by item 1 of this Schedule.

Item 3 - Application provision

304.         This item provides that amendments made by this Schedule apply in relation to a sentence passed, or an order made, on or after the commencement of this Schedule, in respect of a person convicted before, on or after that commencement.



Schedule 13—Revocation of parole order or licence  

Crimes Act 1914

Item 1 - Subsection 19AA(2)

305.         Section 19AA of the Crimes Act covers remissions and reductions of federal sentences. Subsection 19AA(2) applies state and territory laws relating to “clean street time” to federal offenders. “Clean street time” refers to the period between when an offender is released on parole or licence up to the time their parole or licence is revoked. Revocation can occur either as a result of the person committing a new offence or because they have failed to comply with a condition of their release. Upon revocation, the person is liable to serve that part of the sentence that was outstanding at the time of their release from prison. However, that period can be reduced by “clean street time”.

306.         Item 1 is consequential to item 5 which introduces a federal policy for “clean street time” in instances where revocation occurs following the commission of an offence. Removing the reference in subsection 19AA(2) to parole orders or licences that are “taken to be revoked” is necessary to ensure that the application of state and territory laws on “clean street time” will now only operate in respect of revocations made by the Attorney-General under section 19AU of the C rimes Act .

Item 2 - Subsection 19AA(3)

307.         Not all states and territories allow credit for time served without reoffending while on parole or licence. Proposed subsection 19AA(3) provides that if the state or territory law does not provide for “clean street time” the court or prescribed authority must take into account the time the person spent on parole or licence before revocation when determining the further period to be served in prison.

308.         The amendment is consequential to item 5 and is necessary so that subsection 19AA(3) only applies to revocations made by the Attorney-General under section 19AU of the C rimes Act .

Item 3 - Subsection 19AG(5) (paragraph (ca) of the note)

309.         This is a consequential amendment to items 7 and 8. This note is no longer relevant as it is no longer possible to make a recognizance release order under section 19AR of the C rimes Act .

Item 4 - Subsection 19APB(2)

310.         The effect of section 19APB of the Crimes Act is that while a parole order or licence is in place the parolee or licensee is still considered to be serving their sentence. It is only when the parole or licence period ends without the parole order or licence having been revoked, or the person is otherwise discharged from imprisonment, that the person has completed their sentence.

311.         Item 4 is a consequential amendment to item 5. The amendment ensures that where the parole or licence period ends before the revocation time determined under section 19AQ of the C rimes Act , subsection 19APB(2) operates to prevent the discharge of the sentence under subsection 19APB(1).

312.         The proposed new subsection 19APB(2) applies where a determination as to revocation time under subsections 19AQ(1) or (2) of the C rimes Act occurs at a time after the end of the parole or licence period and has the effect that the person is taken not to have completed the sentence and remains liable to serve the balance of the outstanding sentence.

Item 5 - Section 19AQ

313.         This item amends and replaces the existing section 19AQ of the C rimes Act which provides that a parole order or licence is automatically revoked when the person is sentenced for a further offence committed while on parole or licence. A person on parole or licence who has their parole revoked is liable to serve the remainder of the outstanding sentence less any “clean street time”. Clean street time refers to the period between when an offender is released into the community on parole or licence and the time their parole or licence is revoked following the commission of a new offence.

314.         The effect of automatic revocation based on the date of sentencing rather than at the time at which the further offence was committed has led to offenders receiving credit for time during which they have not been of good behaviour. Often it is also the case that the offender has no time left to serve because of the lapse of time between the commission of the offence and the date of sentencing. The proposed new section 19AQ addresses this problem by requiring the court that sentences the person for the new offence to determine the time when the parole order or licence is taken to be revoked by determining when the new offence was committed.

315.         Under proposed subsection 19AQ(1), if a person who is serving the balance of their sentence out in the community on a parole order commits a further federal, state or territory offence during the parole period, the court sentencing the person for the new offence must determine the time when the parole order is taken to have been revoked. However, if the new sentence is a sentence of, or aggregating, a period less than three months then a revocation time does not need to be determined by the court. This is because if the new offence is considered to be trivial, returning the person to prison to serve the balance of the outstanding sentence is not warranted. Instead the person would continue to be subject to the parole order.

316.         Proposed subsection 19AQ(2) operates in the same way to proposed subsection 19AQ(1), but applies to licences instead of parole orders.

317.         Proposed subsection 19AQ(3) ensures that the revocation time determined by the court is linked to commission of the offence. Paragraphs 19AQ(3)(b) and (c) allow a determination to be made even if the court cannot state definitively when the new offence was committed or where the offence formed part of an ongoing course of conduct (for example, conspiracy situations).

318.         Proposed subsection 19AQ(4) outlines the amount of time a person is liable to serve in respect of the outstanding sentence that was the subject of the parole order or licence. This may be either the entire balance of the outstanding sentence (as provided by paragraph 19AQ(4)(a)) from the date of their release on parole or licence to the end of the parole or licence period or, if the court considers it appropriate having regard to the person’s good behaviour, that period reduced by the period of “clean street time” (as provided by proposed paragraph 19AQ(4)(b)). This is achieved by deducting the period from the date of release to the date of revocation from the balance of the outstanding sentence.

319.         Proposed subsection 19AQ(5) mirrors the existing subsection 19AQ(6) and provides that revocation under this section does not occur where the new sentence imposed is a suspended sentence.

Item 6 - Section 19AR (heading)

320.         This item is a consequential amendment to item 5 and ensures that the heading to section 19AR remains accurate following the change from revocation automatic on sentencing for a new offence to revocation occurring at a time determined by the court.

Item 7 - Subsections 19AR(1) and (2)

321.         This item repeals the existing subsections 19AR(1) and (2) and substitutes a new subsection 19AR(1) which removes the option previously available to the courts of setting a recognizance release order if a person had their parole or licence revoked under section 19AQ.

322.         The proposed subsection 19AR(1) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a federal offence. In this instance, the court imposing the new federal sentence must fix a single new non-parole period in respect of both the new sentence and the outstanding sentence, having regard to the total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply (see item 9 of this Schedule).

Item 8 - Subsection 19AR(3)

323.         This item repeals the existing subsection 19AR(3) of the C rimes Act and substitutes a new subsection which removes the option previously available to the courts of setting a recognizance release order if a person had their parole or licence revoked under section 19AQ of the C rimes Act .

324.         The proposed subsection 19AR(3) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a state or territory offence. In this instance, the court imposing the new state or territory sentence must fix a single new non-parole period in respect of the outstanding Commonwealth sentence, having regard to the total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply (see item 9 of this Schedule).

Item 9 - Subsection 19AR(4)

325.         This item repeals the existing subsection 19AR(4) of the C rimes Act and substitutes a new subsection which mirrors the existing provision but includes an additional instance where the court may decline to fix a non-parole period.

326.         Paragraph 19AR(4)(b) provides that the court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence. This is because it is meaningless to set a non-parole period for the outstanding sentence if a person could not be released from custody to be under supervision in the community because they must continue to serve a state or territory sentence on which they are not yet eligible for release.

Items 10 - 14 - Subsections 19AR(5), 19AR(6), 19AR(7)

327.         These items are necessary because it will no longer be possible to make a recognizance release order under section 19AR of the C rimes Act .

Item 15 - Subsection 19AS(1)

328.         This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing subsection 19AS(1) of the C rimes Act and substitutes a new subsection to reflect the changes proposed to section 19AQ of the C rimes Act . It does not impact the operation of section 19AS.

Item 16 - Subsection 19AS(2)

329.         This item is a consequential amendment to item 15 of this Schedule which restructures subsection 19AS(1) of the C rimes Act.

Item 17 - Paragraphs 19AT(1)(a) and (b)

330.         This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing paragraphs 19AT(1)(a) and (b) of the C rimes Act and substitutes a new subsection to reflect the changes proposed to section 19AQ. It does not impact the operation of section 19AT.

Item 18 - Subsection 19AW(2)

331.         This item amends subsection 19AW(2) of the C rimes Act so that if a prescribed authority cannot complete the hearing immediately and issue a warrant for detention then they must issue a warrant for the person to be remanded into custody pending completion of the hearing. As the person’s parole order or licence has been revoked, they no longer have legal authority to be in the community and must be returned to prison to continue serving their sentence. This previously was left to the discretion of the court.

Item 19 - Paragraph 19AW(3)(a)

332.         This item amends paragraph 19AW(3)(a) of the C rimes Act to make it clear that the prescribed authority can only decline to fix a non-parole period if it is inappropriate to do so because of the serious nature of the breach of conditions that led to the revocation of the order or licence. This will ensure that paragraph 19AW(3)(a) is not read-down and used to avoid setting a custodial sentence.

Item 20 - Subsection 20(6)

333.         This is a consequential amendment to items 7 and 8 that is necessary as it is no longer possible for the court to set a recognizance release order under section 19AR of the C rimes Act .

Item 21 - Application provisions

334.         This item sets out the application provisions for Schedule 13.

335.         Subitem 21(1) provides that the proposed amendments in items 1, 4, 5 and 7-17 of this Schedule apply in relation to the revocation, on or after the commencement of this schedule, of a parole order or licence relating to a sentence imposed on a person before, on or after the commencement of this schedule.

336.         Subitem 21(2) provides that the proposed amendment in item 2 applies in relation to fixing, on or after the commencement of this Schedule, a non-parole period in respect of a sentence. These amendments will apply whether that sentence was imposed before, on or after the commencement of this Schedule.

337.         Subitem 21(3) provides that the proposed amendments in items 18 and 19 of this Schedule apply in relation to hearings begun on or after the commencement of this Schedule (whether the order revoking the relevant parole order or licence was made before, on or after that commencement).

338.         The application of the proposed amendments in this manner is justified as it relates to the revocation of a parole order or licence after the commencement of the Schedule. The proposed amendments are also reasonable and necessary to ensure the continued protection of the community and that breaches of a parole order, or release on licence, are adequately punished where appropriate.

 



Schedule 14—Definitions

Crimes Act 1914

Item 1 - Subsection 3(1)

“child sexual abuse offence”

339.         This item inserts the definition of “child sexual abuse offence”. This definition is relevant to the mechanics of the mandatory minimums in Schedule 6 and the presumption against bail in Schedule 7.

340.         This definition includes the following offences:

(a)      a Commonwealth child sex offence; or

(b)     an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 ; or

(c)      an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 ; or

(d)     a state or territory registrable child sex offence.

341.         It ensures that repealed offences at a Commonwealth level are also captured as part of previous offences.

“Commonwealth child sexual abuse offence”

342.         The definition of “Commonwealth child sexual abuse offence” captures the offences which are subject to the mandatory minimum penalties under proposed paragraph 16AAB(1)(a) in Schedule 6 (second or subsequent offence). The definition excludes the offences to which mandatory minimum penalties would be applicable for first strike offending (under proposed section 16AAA in item 2 of Schedule 6). The definition also excludes section 474.25C of the Criminal Code . As set out in Schedule 6, section 474.25C of the Criminal Code is an offence targeted at the very preliminary stages of the offending spectrum. It captures those who engage in conduct to prepare to cause harm, without the need to demonstrate a sexual intent. As such, mandatory minimum penalties will not apply to offences against section 474.25C of the Criminal Code .

“State or Territory registrable child sex offence”

343.         The proposed definition of “State or Territory registrable child sex offence” is intended to capture state and territory registrable child sex offences as a “previous offence” for the purposes of the mandatory minimum penalties (Schedule 6), the presumption against bail (Schedule 7), and cumulative sentencing (Schedule 10). It is critical that state and territory child sexual abuse offences be captured to ensure that repeat offenders are treated consistently in applying the Commonwealth measures, whether or not their first offence was a state, territory or Commonwealth child sex offence.

344.         The definition will include any offence where a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a state or territory for committing for a child sex offence. Paragraph (b) of the definition clarifies that the definition is not intended to capture an offence which would be registrable on an offender register but is not a child sexual abuse offence.