House of Representatives

Explanatory Memorandum

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

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.