House of Representatives

Explanatory Memorandum

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

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 It ensures that repealed offences at a Commonwealth level are also captured as part of previous offences.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