House of Representatives

Explanatory Memorandum

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

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:

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be subject to the supervision of a probation officer;

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obey all reasonable directions of the probation officer;

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not travel interstate or overseas without the written permission of the probation officer; and

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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.