CTH Senate to Consider New Legislation on Child Sex Offences

On 11 September 2019, Attorney-General Christian Porter introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) (‘the Bill’) to the House of Representatives. The Bill was passed the House of Representatives on 15 October and was introduced to the Senate on 17 October. In his second reading speech, Mr Porter stated that the Bill is “an example of the government's commitment to protect children in Australia and overseas from the dangers of sexual exploitation and abuse and to improve justice outcomes for survivors of child sex offences”. If the Bill is passed by the Senate and receives assent it will initiate 4 major changes to the current framework for child sex offences which include:

1. Sentencing Reform
2. Introduction of New Offences and Aggravating Factors
3. Increasing Protection of Vulnerable Persons
4. Introduction of a Presumption Against Bail

Sentencing Reform

The Bill proposes to significantly extend the current framework of sentencing for child sex offenders by introducing the following:

• Mandatory Minimum Sentences: Schedule 6 of the Bill proposes mandatory minimum sentences which range from 5 to 7 years and include offences such as for the most serious child sex offences such as sexual intercourse or activity with a child outside Australia and the aggravated offences involving child abuse material. The Bill also proposes mandatory minimum sentences for recidivist offenders for certain offences ranging from 1 to 4 years. The Bill exempts underage offenders from the imposition of mandatory minimum sentences and proposes that a guilty plea and cooperation in the investigation will each respectively incur a maximum reduction of the penalty by 25%, subject to the court’s discretion.
• Increased Maximum Penalties:  If the Bill is granted assent, Schedule 5 will increase maximum penalties for various child sex offences. This includes increasing the maximum sentence of the aggravated offence of committing a sexual offence against a child outside of Australia where the child suffers mental impairment or is under care, supervision or authority of defendant from 25 years to life.
• Presumptions: Schedule 10 of the Bill proposes that child sex offences are presumed to be served cumulatively and not concurrently. An order which rebuts this presumption requires the court to give reasons justifying contravening the presumption.
• Rehabilitation:  Schedule 8 of the Bill proposes a requirement that the court have regard to the objective of rehabilitation when sentencing a Commonwealth child sex offender. These considerations include 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.

New Offences and Aggravating Factors

The Bill proposes to introduce 2 new offences:

1. The offence of “grooming” a person to make it easier to engage in sexual activity with a child outside Australia is intended to respond to the grooming of caretakers and parents with the aim of procuring child abuse material.
2. The offence of using a postal or similar service to “groom” another person to make it easier to procure persons under 16 is intended to hold service providers accountable for facilitating access to child abuse material.

The Bill posits the introduction of other sentencing factors for certain offences including:

1. the age and maturity of the person in relation to whom the offence was committed;
2. if that person 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;
3. the number of people involved in the commission of the offence.

Further, the Bill proposes that the use of a person's standing in the community to assist in the commission of a child offence either through the person’s position of trust and authority or by the child being under their care and supervision will constitute an aggravating factor in sentencing.

Protection of Vulnerable Persons

The Bill proposes to amend section 15YM of the Crime Act 1914 (Cth) to allow a video recording of an interview by a constable with a child witness, vulnerable adult or special witness to be accepted as evidence without requiring the court to give leave. The Bill also proposes to introduce section 15YHA which prevents a vulnerable person from being cross-examined.

Bail

The Bill also seeks to amend the bail provisions in the Crime Act 1914 (Cth) by introducing a new section 15AAA which will create a presumption against bail for a person who has been charged with or convicted of certain Commonwealth child offences. If bail is granted, the court will be required to state its reasons in the court’s records.

Committee Reports and Response

The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee and considered by both the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. Both the Parliamentary Joint Committee and the Senate Standing Committee reiterated that their concerns and issues regarding a similar 2017 bill were not resolved in this Bill.

The Senate Standing Committee stated that mandatory penalties necessarily undermine judicial discretion to ensure that penalties are proportionate to the individual’s circumstances. Further, the Committee stated that the presumption against bail tested the “cornerstone of the criminal justice system”, the presumption of innocence by denying a person their liberty before they have been convicted. The Committee criticised the Bill for impeding judicial discretion and the lack of evidence provided to demonstrate that the courts are currently not appropriately considering the risks posed by those accused. Similarly, in a media release, the Law Council of Australia criticised the Bill as employing the “same old law and order rhetoric” in encouraging mandatory sentencing which the Council stated will discourage guilty pleas and delay proceedings as well as potentially imposing mandatory minimum sentences. Further, the Council suggests the mandatory minimum sentences will produce unjust outcomes including imposing mandatory sentences for consensual teenage conduct and failing to give judges adequate discretion for dealing with cases involving individuals with significant cognitive impairment or mental illness.

In contrast, in a media release by the Liberal Party, Mr Porter was quoted stating that the new legislation will effectively resolve the problem that “28 per cent of child sex offenders convicted of federal offences in 2018-19 did not spend one day in jail – a statistic totally out of step with community expectations” and reflect “the Morrison Government’s commitment to keeping Australians safe”.

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Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth), second reading speech and explanatory memorandum available from TimeBase's LawOne Service.

Media Release: Politicians should recognise mandatory sentencing will not make children safer (Law Council of Australia, 11/11/2019)

Media Release: Child sex offenders to face mandatory sentences under Coalition crackdown (Liberal Party of Australia, 03/09/2019)