House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)

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:

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

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

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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:

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

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

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

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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:

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criminalising the offering, delivering or accepting a child for sexual exploitation, and distributing, disseminating, offering, selling or possessing child pornography (Article 3(1));

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making child exploitation offences punishable by appropriate penalties that take into account their grave nature (Article 3(3));

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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

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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:

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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);

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

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

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

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

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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:

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

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

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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:

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the mandatory minimum sentencing regime;

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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

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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:

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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

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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:

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the mandatory minimum sentencing scheme;

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

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the presumption against bail;

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

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

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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

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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.