Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Act 2024

(114 of 2024)

An Act to amend the Crimes Act 1914, and for related purposes

[Assented to 10 December 2024]

The Parliament of Australia enacts:

1   Short title

This Act is the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence)Act 2024.

2   Commencement

 

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

      

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1   Amendments

Crimes Act 1914

1   After paragraph 15Y(1)(b)

Insert:

(ba) an offence against Division 268 of the Criminal Code that is:

(ia) genocide (within the meaning of that Code); or

(i) a crime against humanity (within the meaning of that Code); or

(ii) a war crime (within the meaning of that Code); or

(iii) a crime against the administration of the justice of the International Criminal Court (within the meaning of that Code);

2   After paragraph 15Y(1)(cad)

Insert:

(cae) an offence against Division 274 of the Criminal Code (torture);

(caf) an offence against Division 309 of the Criminal Code (drug offences involving children);

3   After paragraph 15Y(1)(cba)

Insert:

(cbb) 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;

(cbc) an offence against any of the following arising under section 6 of the Crimes at Sea Act 2000:

(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);

(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);

(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);

(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);

(cbd) an offence against section 14 or 15 of the Crimes (Aviation) Act 1991 arising under any of the following:

(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);

(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);

(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);

(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);

4   At the end of subsection 15Y(1)

Add:

Note: Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 commenced on 15 April 2010.

5   Before paragraph 15Y(2)(a)

Insert:

(aa) an offence against section 71.8 of the Criminal Code (sexual assault of United Nations and associated personnel);

(ab) an offence against Division 268 of the Criminal Code that is:

(ia) genocide (within the meaning of that Code); or

(i) a crime against humanity (within the meaning of that Code); or

(ii) a war crime (within the meaning of that Code); or

(iii) a crime against the administration of the justice of the International Criminal Court (within the meaning of that Code);

6   After paragraph 15Y(2)(b)

Insert:

(bd) an offence against Division 274 of the Criminal Code (torture);

(bi) an offence against any of the following arising under section 6 of the Crimes at Sea Act 2000:

(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);

(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);

(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);

(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);

(bj) an offence against section 14 or 15 of the Crimes (Aviation) Act 1991 arising under any of the following:

(i) Part 3 (Sexual offences) of the Crimes Act 1900 (ACT);

(ii) Part 3A (Intimate image abuse) of the Crimes Act 1900 (ACT);

(iii) Part 4 (Female genital mutilation) of the Crimes Act 1900 (ACT);

(iv) Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT);

(bk) an aggravated offence against Subdivision C of Division 12 of Part 2 of the Migration Act 1958;

(bl) a sexual offence specified in the regulations;

7   Paragraph 15Y(2)(c)

Omit "paragraph (a) or (b)", substitute "one of the preceding paragraphs of this subsection".

8   Paragraph 15Y(2)(d)

Omit "paragraph (a), (b) or (c)", substitute "one of the preceding paragraphs of this subsection".

9   At the end of subsection 15Y(2)

Add:

Note: Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 commenced on 15 April 2010.

10   Section 15YA (definition of child complainant)

Repeal the definition, substitute:

child complainant has the meaning given by section 15YAC.

11   Section 15YA (definition of child witness)

Repeal the definition, substitute:

child witness has the meaning given by section 15YAD.

12   Section 15YA

Insert:

evidence recording hearing means a hearing ordered under section 15YDB(1).

13   Subsection 15YAB(3)

Omit "sections", substitute "provisions".

14   Before paragraph 15YAB(3)(a)

Insert:

(aa) Division 2A (evidence recording hearings);

15   Paragraph 15YAB(3)(e)

Omit "recordings", substitute "or audio recordings of interviews".

16   After paragraph 15YAB(3)(e)

Insert:

(ea) section 15YNB (about original evidence admissible in new proceedings);

17   At the end of subsection 15YAB(3)

Add:

; (h) subparagraph 15YR(1)(c)(iii) (about publications that identify vulnerable persons).

17A   After section 15YAB

Insert:

15YAC Child complainants

(1) A child complainant , in relation to a child proceeding:

(a) is a child who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(1), to which the proceeding relates (whether or not the child is involved in the proceeding or was involved in the initiation of the proceeding); and

(b) includes a person who was such a child at the time the offence concerned was alleged to have been committed.

(2) However, a person who is 18 or over is not a child complainant if the person informs the court that the person does not wish to be treated as such a complainant.

15YAD Child witnesses

(1) A child witness , in relation to a child proceeding:

(a) is a child (including a child complainant) who is a witness in the proceeding; and

(b) includes a witness in the proceeding who was a child at the time the offence concerned was alleged to have been committed.

(2) However, a person who is 18 or over is not a child witness if the person informs the court that the person does not wish to be treated as such a witness.

18   Section 15YB (at the end of the heading)

Add " - child proceedings ".

19   Subsection 15YB(1)

Omit "(1)".

20   Subsection 15YB(1)

Omit ", unless the court gives leave".

21   Subsections 15YB(2) to (5)

Repeal the subsections.

22   Section 15YC (at the end of the heading)

Add " - child proceedings ".

23   Subsection 15YC(1)

Omit "unless:", substitute "unless the court gives leave.".

24   Paragraphs 15YC(1)(a) and (b)

Repeal the paragraphs.

24A   Paragraph 15YC(2)(a)

Omit "or", substitute "and".

24B   Paragraph 15YC(2)(b)

Omit "if the evidence relates to the credibility of a child witness and is to be adduced in cross-examination of the child - ".

24C   At the end of subsection 15YC(2)(b)

Add:

; and (c) either:

(i) the evidence is of sexual activity that is alleged to form part of a connected set of circumstances in which the alleged offence was committed; or

(ii) if the evidence is of sexual activities with a defendant in the proceeding - the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.

24D   Subsection 15YC(3)

Omit "The", substitute "For the purposes of paragraph (2)(a), the".

24E   Subsection 15YC(4)

After "value", insert "for the purposes of paragraph (2)(b)".

25   At the end of subsection 15YC(4)

Add:

; and (c) whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the child witness or child complainant.

26   After section 15YC

Insert:

15YCA Evidence of sexual reputation - vulnerable adult proceedings

Evidence of a vulnerable adult complainant's reputation with respect to sexual activities is inadmissible in a vulnerable adult proceeding.

15YCB Evidence of sexual experience - vulnerable adult proceedings

(1) Evidence of a vulnerable adult complainant's experience with respect to sexual activities is inadmissible in a vulnerable adult proceeding, unless the court gives leave.

(2) The court must not give leave unless the court is satisfied that:

(a) the evidence is substantially relevant to facts in issue in the proceeding; and

(b) the evidence has substantial probative value; and

(c) either:

(i) the evidence is of sexual activity that is alleged to form part of a connected set of circumstances in which the alleged offence was committed; or

(ii) if the evidence is of sexual activities with a defendant in the proceeding - the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.

(3) For the purposes of paragraph (2)(a), the evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the vulnerable adult complainant's general disposition.

(4) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value for the purposes of paragraph (2)(b), it is to have regard to:

(a) whether the evidence tends to prove that the vulnerable adult complainant knowingly or recklessly made a false representation when the complainant was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred; and

(c) whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant.

27   After Division 2 of Part IAD

Insert:

Division 2A - Evidence recording hearings

15YDA Application

This Division applies to a person (the vulnerable person ) as follows:

(a) for a child proceeding - a child witness;

(b) for a vulnerable adult proceeding - a vulnerable adult complainant;

(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this Division.

15YDB Evidence recording hearings

(1) The court may, if it is satisfied that it is in the interests of justice to do so, order a hearing (the evidence recording hearing ) for the vulnerable person to give evidence.

(2) For the purposes of subsection (1), the court must take into account:

(a) whether each party to the proceeding has sufficient time to prepare for the evidence recording hearing and the proceeding; and

(b) the availability of:

(i) the prosecutor in the proceeding; and

(ii) if the defendant has a legal representative - the defendant's legal representative; and

(iii) if the defendant does not have a legal representative - the defendant; and

(c) the circumstances and wishes of the vulnerable person; and

(d) the availability of court and other facilities to enable the video or audio recording of evidence given at the evidence recording hearing.

(3) The order may relate to some or all of the following:

(a) evidence in chief;

(b) cross-examination;

(c) re-examination.

Note: For rules about cross-examination, see Division 3.

(4) The order may be made:

(a) on the court's own initiative or on application by or on behalf of a party to the proceeding; and

(b) at any time during the proceeding; and

(c) for the evidence recording hearing to be held at any time during the proceeding (including after the trial in the proceeding has begun).

(5) To avoid doubt, evidence in chief may also include a recording of an earlier interview (see section 15YM).

Adjourning proceedings to enable recording

(6) The court may adjourn the proceeding, or a part of the proceeding, to a court or other place that is equipped with facilities for evidence to be given in accordance with this section if:

(a) the court is not equipped with the necessary facilities; or

(b) the court otherwise considers it appropriate to do so.

15YDC Arrangements for persons at the hearing

(1) The vulnerable person must not be able to see the defendant during the evidence recording hearing.

(2) However, the defendant must be able to:

(a) if the vulnerable person gives evidence from another room - by closed-circuit television, see and hear the vulnerable person giving evidence; or

(b) if the vulnerable person and the defendant are in the same room - hear the vulnerable person giving evidence.

(3) If there is a jury in the proceeding, the evidence recording hearing must be held in the jury's absence.

(4) Otherwise, the court may determine who is to be present at the evidence recording hearing.

15YDD Evidence must be recorded

(1) A recording must be made of the evidence given by the vulnerable person at the evidence recording hearing.

(1A) The recording must be a video recording unless the court is satisfied that extraordinary circumstances require the use of audio recording only.

(2) The recording of the evidence must:

(a) be played at the hearing of the proceeding; and

(b) be admitted in evidence as the vulnerable person's evidence at the hearing as if the vulnerable person gave the evidence at the hearing in person.

(3) Subsection (2) has effect subject to section 15YDE (admissibility of evidence).

15YDE Admissibility of evidence

The court may refuse to admit the whole or part of the contents of the recording.

15YDF Access to recordings and transcripts

Defendants' access to recordings

(1) Neither a defendant in the proceeding nor the defendant's legal representative is entitled to be given a video or audio recording (the original recording ) made in an evidence recording hearing, or a copy of the original recording.

(2) However, they must be given reasonable access to the original recording in order to view or listen to it.

Note: This may require access on more than one occasion.

(3) Neither the defendant nor the defendant's legal representative may:

(a) make a recording (or other copy) of the original recording; or

(b) do anything (whether directly or indirectly) that would damage or alter the original recording.

Transcripts

(4) The court must give each party to the proceeding and the jury (if any) access to, or a copy of, a transcript of the original recording.

(5) To avoid doubt, subsections (1), (2) and (4) do not apply in relation to any part of a recording the court has refused to admit (see section 15YDE (admissibility of evidence)).

Offence

(6) A person commits an offence if:

(a) the person:

(i) makes a recording (or other copy) of the original recording, or a part of the original recording; or

(ii) does anything (whether directly or indirectly) to damage or alter the original recording, or a part of the original recording; or

(iii) possesses or supplies the original recording, or a part of the original recording; or

(iv) possesses or supplies a copy of the original recording, or a part of the original recording; and

(b) the person does so without lawful authority or excuse.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(7) The fault element for paragraph (6)(a) is intention.

15YDG Vulnerable person need not give further evidence unless court orders

(1) If evidence given by the vulnerable person in an evidence recording hearing is admitted in the proceeding, the vulnerable person need not give any further evidence in the proceeding unless the court orders that this is necessary:

(a) to clarify the vulnerable person's evidence given in the evidence recording hearing; or

(b) to give proper consideration of information or material that has become available since the evidence recording hearing; or

(c) in theinterests of justice.

Note: This subsection covers further evidence that could otherwise be given on examination in chief, on cross-examination or on re-examination.

(2) If the court makes an order under subsection (1), the court must:

(a) order that the evidence is to be given in an evidence recording hearing; and

(b) ensure that the vulnerable person is questioned in the hearing only about the matters specified in the order.

(3) An order under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the proceeding, including the vulnerable person.

15YDH Division applies despite other rules of evidence

This Division has effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.

27A   After section 15YF

Insert:

15YFA Unrepresented defendants - cross-examination of vulnerable adult complainants

(1) A defendant in a vulnerable adult proceeding who is not represented by counsel is not to cross-examine a vulnerable adult complainant.

Note: A person is not to cross-examine certain persons at committal proceedings or proceedings of a similar kind - see section 15YHA.

(2) A person appointed by the court is to ask the vulnerable adult complainant any questions that the defendant requests the person to ask the complainant.

27B   Paragraph 15YG(1A)(b)

Repeal the paragraph.

28   Subsection 15YI(1)

Omit "Evidence", substitute "Subject to Division 2A, evidence".

29   Section 15YK

Before "If the vulnerable", insert "(1)".

30   At the end of section 15YK

Add:

(2) The following must be allowed to see the vulnerable person, and any person present with the vulnerable person, on one or more television monitors while the evidence is given:

(a) a defendant and the defendant's legal representative (if any);

(b) if there is a jury in the proceeding - the members of the jury.

31   Subsection 15YL(1)

After "closed-circuit television", insert "(or under Division 2A)".

32   At the end of Division 4 of Part IAD

Add:

15YLA Recording of evidence given in person

(1) The court must order that evidence given in person by a person to whom subsection (2) applies is to be recorded if:

(a) the court is satisfied that the evidence could be used in another proceeding; and

(b) the court is equipped with the necessary facilities; and

(c) the person agrees to the evidence being recorded.

(2) This subsection applies to the following persons:

(a) for a child proceeding - a child witness;

(b) for a vulnerable adult proceeding - a vulnerable adult complainant;

(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.

(3) The recording may be a video or audio recording.

(4) Subsection (1) applies whether or not the evidence is given by closed-circuit television.

33   Division 5 of Part IAD (heading)

Omit " recordings ", substitute " or audio recordings of interviews ".

34   Section 15YM (heading)

Omit " recordings ", substitute " or audio recordings of interviews ".

35   Subsection 15YM(1)

After "video", insert "or audio".

36   Subsection 15YM(4) (not including the notes)

Repeal the subsection, substitute:

(2) However, a recording that is an audio recording only must not be admitted under subsection (1) unless the court is satisfied that extraordinary circumstances require the use of audio recording only.

(4) Subject to Divisions 2A and 3, if a video or audio recording of an interview of a person is admitted as evidence in chief under subsection (1), the person must be available for cross-examination and re-examination.

37   At the end of section 15YM

Add:

Offence

(5) A person commits an offence if:

(a) the person:

(i) makes a recording (or other copy) of a recording, or a part of a recording, to which subsection (1) applies; or

(ii) does anything (whether directly or indirectly) to damage or alter a recording, or a part of a recording, to which subsection (1) applies; or

(iii) possesses or supplies a recording, or a part of a recording, to which subsection (1) applies; or

(iv) possesses or supplies a copy of a recording, or a part of a recording, to which subsection (1) applies; and

(b) the person does so without lawful authority or excuse.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(6) The fault element for paragraph (5)(a) is intention.

38   Section 15YN (heading)

Omit " recordings ", substitute " or audio recordings of interviews ".

39   Subsections 15YN(1) and (2)

After "video", insert "or audio".

40   Subsection 15YN(2)

Omit "listen to and view", substitute "view or listen to".

41   Subsection 15YNB(1) (at the end of the note)

Add ", which could include evidence recorded at an evidence recording hearing or in an interview".

42   Paragraph 15YNB(4)(a)

Omit "child complainant", substitute "child witness".

43   At the end of subsection 15YNB(4)

Add:

; (c) if the original proceeding was a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.

44   Section 15YND (heading)

After " video ", insert " or audio ".

45   Subsection 15YND(1)

After "includes a video", insert "or audio".

46   Subsection 15YND(1)

Omit "video" (second occurring).

47   Subsection 15YND(2)

Omit "video recording in order to view it", substitute "recording in order to view or listen to it".

48   Subsection 15YO(1)

After "proceeding", insert "or at an evidence recording hearing".

49   Paragraph 15YO(1A)(c)

Omit "for this section;", substitute "for this section.".

50   After section 15YO

Insert:

15YOA Right to interpreter

(1) If the court is satisfied that a person to whom subsection (2) applies is unable, because of inadequate knowledge of the English language or a disability, to communicate orally with reasonable fluency in that language, the court must arrange for the presence of an interpreter to assist the person to understand, and participate in, the proceeding.

(2) This subsection applies to the following persons:

(a) for a child proceeding - a child witness;

(b) for a vulnerable adult proceeding - a vulnerable adult complainant;

(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.

51   Paragraph 15YQ(1)(c)

After "video", insert "or audio".

52   Section 15YR (heading)

Repeal the heading, substitute:

15YR Publication identifying another person as a child witness, child complainant, vulnerable adult complainant or special witness

53   Paragraph 15YR(1)(c)

Repeal the paragraph, substitute:

(c) the matter identifies, or is likely to lead to the identification of, another person (the vulnerable person ) as:

(i) a child witness or child complainant in a child proceeding; or

(ii) a vulnerable adult complainant in a vulnerable adult proceeding; or

(iii) in the case of a special witness in a special witness proceeding for whom an order under subsection 15YAB(3) is in force for this subparagraph - a special witness in a special witness proceeding; and

54   Subsection 15YR(1A)

Repeal the subsection.

55   Subsection 15YR(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not apply if:

(a) the publication is in an official publication in the course of, and for the purpose of, the proceeding; or

(b) the publication is in a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a proceeding within the meaning of this Part); or

(c) the vulnerable person is deceased; or

(d) for a vulnerable person who is an adult:

(i) the vulnerable person has given informed consent to the publication in accordance with subsection (2A); and

(ii) the publication is in accordance with the limits, if any, set by the vulnerable person; and

(iii) at the time the consent was given - the vulnerable person had the decision-making capacity to give such consent; or

(e) for a vulnerable person who is a child:

(i) the vulnerableperson has given informed consent for the publication; and

(ii) the publication is in accordance with the limits, if any, set by the vulnerable person; and

(iii) the consent was accompanied by a supporting statement in accordance with subsection (2B).

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(2A) A vulnerable person gives informed consent to a publication in accordance with this subsection if, at the time the person gives the consent, the person:

(a) understands the options available to the person (including that the person is not required to give the consent); and

(b) understands the consequences of giving the consent.

(2B) A supporting statement must:

(a) be in writing; and

(b) be made by a person (the practitioner ) who is:

(i) a medical practitioner; or

(ii) a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists; or

(iii) a person prescribed by the regulations; and

(c) include the following details:

(i) the name, qualification and business address of the practitioner;

(ii) the nature and duration of the professional relationship between the practitioner and the vulnerable person; and

(d) state that the practitioner is of the opinion that the vulnerable person understands:

(i) what it means to be identified as a vulnerable person of that kind; and

(ii) the consequences of losing anonymity.

56   At the end of subsection 15YR(4)

Add:

; and (d) any trauma to, or damage to the reputation of, another vulnerable person (other than the defendant) in relation to the proceeding; and

(e) any other matter that the court thinks is relevant.

57   Subsection 15YR(5)

Repeal the subsection, substitute:

(5) For the purpose of giving leave after the proceeding has been completed, the court need not be constituted by the same judicial officers who constituted the court in the proceeding.

58   Paragraph 15YR(7)(c)

Repeal the paragraph, substitute:

(c) each vulnerable person in relation to the proceeding.

59   Transitional - proceedings in progress

Despite the amendments made by this Schedule, Part IAD of the Crimes Act 1914, as in force immediately before the commencement of this Schedule, continues to apply in relation to a proceeding begun, but not completed, before that commencement.