House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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

7. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

8. This Bill amends the Crimes Act 1914 (Crimes Act) to strengthen the protections afforded to victims and survivors of child sexual abuse and vulnerable persons in Commonwealth criminal proceedings.

9. Provisions of this Bill include amendments which:

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expand the range of offences to which special rules for proceedings involving children and vulnerable adults apply in order to more comprehensively protect vulnerable persons;

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ensure that evidence of a vulnerable adult complainant's reputation with respect to sexual activities is inadmissible in a vulnerable adult proceeding;

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restrict the admissibility of sexual experience evidence of vulnerable adult complainants unless the court grants leave and considers specific criteria, including that the evidence is substantially relevant to facts in issue in the proceeding;

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introduce evidence recording hearings to allow a vulnerable person to have their evidence recorded, which can be tendered and relied on as evidence in any subsequent trial or retrial;

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introduce an offence to deter misuse of the recorded evidence of a vulnerable person; and

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clarify that the current restriction on publishing material that identifies (is likely to identify) another person as a child witness, child complainant or vulnerable adult complainant in a proceeding does not apply to a vulnerable person who publishes self-identifying material, as well as streamlining the requirements for another person to publish the identifying information of a vulnerable person with their consent.

Human rights implications

10. The Bill may engage, directly or indirectly, with the following human rights:

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the right to privacy, and right to protection\ against unlawful attacks on reputation, contained in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and article 16 of the Convention on the Rights of the Child (CRC);

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the right to freedom of expression, contained in article 19(2) of the ICCPR and article 13 of the CRC;

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the right to freedom for women against any form of discrimination contained in article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);

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the right to a fair hearing contained in article 14(1) of the ICCPR; and

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the right to criminal process contained in article 14(2)-(7) of the ICCPR.

The right to privacy and right to protection against unlawful attacks on reputation

11. Article 17 of the ICCPR and article 16 of the CRC prohibit arbitrary interference with privacy and unlawful attacks on reputation. The United Nations Human Rights Committee has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

Restriction on admission of sexual reputation evidence relating to a vulnerable person

12. The Bill enhances privacy by making evidence relating to the sexual reputation of a vulnerable person when appearing as complainants and/or witnesses in criminal proceedings inadmissible. Evidence of this nature is too far removed from actual events or relevant facts for its admission to be in the interests of justice in any circumstances.

Restriction on admission of sexual experience evidence relating to a vulnerable person

13. The Bill amends the Crimes Act to clarify that evidence of sexual experience of vulnerable persons appearing as complainants and/or witnesses in criminal proceedings is inadmissible unless the court grants leave, and the evidence is of sexual activities with a defendant in the proceeding. This amendment is compatible with human rights as there is a presumption against the admissibility of sexual experience evidence unless there are specific, prevailing reasons that persuade the Court to grant leave.

14. Article 40(2)(b)(vii) of the CRC provides that a child must have his or her privacy respected at all times during criminal proceedings. In the case of a vulnerable person who is a child, evidence of sexual experience with the defendant admitted into proceedings could be considered to have a negative impact on their privacy, however, this may be reasonable and necessary where a judicial officer has deemed it relevant to the proceedings. It is also consistent with Article 14(1) of the ICCPR which addresses the right to a fair hearing to be enjoyed equally by the witness and defendant.

The right to freedom of expression

15. Article 19(2) of the ICCPR provides that everyone has the right to freedom of expression, including the freedom to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media.

16. However, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in article 19(2) carries special duties and responsibilities. Freedom of expression may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for the respect of individuals' rights or reputations. These permissible restrictions include those necessary for the protection of public order, public health, public morals and the rights or reputation of others.

Exemption of complainants from public identification restrictions

17. This Bill amends section 15YR of the Crimes Act to clarify that vulnerable persons may publish information that identifies themselves as a child witness, child complainant, vulnerable adult complainant, or special witness in a criminal proceeding. It also streamlines the requirements for another person to publish the identifying information of a vulnerable person with their consent. This includes whether the vulnerable person has consented to the publication, and that the publication is in accordance with any limitations set by the vulnerable person.

18. This amendment is consistent with the right to freedom of expression, by allowing vulnerable persons the right to speak about their experiences publicly where they choose to do so.

The right to freedom for women against any form of discrimination

19. Article 2 of the CEDAW protects the right of women against discrimination in all its forms. Women are at a statistically higher risk of sexual violence when compared to men (as at 2021 according to the Australian Bureau of Statistics). The amendments contained within this Bill further the protections for victims and survivors of sexual violence, and in turn increase protections afforded to women engaging with the criminal justice system. These protections include: prohibiting all evidence of sexual reputation, restricting evidence of sexual experience and enabling the pre-recording of evidence limiting re-traumatisation of the vulnerable person through the repeating of evidence across proceedings. Additionally, these amendments enable victims to speak about their experiences publicly, should they wish to do so, further empowering victims and survivors of sexual violence to tell their stories.

20. The amendments contained in this Bill have a positive impact on the right set out in article 2 of the CEDAW by making the criminal justice system more accessible to and supportive of victims and survivors of sexual violence.

The right to a fair hearing and criminal process

21. Article 14 of the ICCPR provides for the presumption of innocence and sets out minimum guarantees in criminal proceedings, including, at paragraph 3(e), that a person charged with a criminal offence shall have the right to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

Pre-recorded evidence is permitted in certain circumstances

22. This Bill inserts section 15YDE to the Crimes Act to allow for pre-recorded evidence of child witnesses, vulnerable adult complainants, and special witnesses as defined in Part IAD of the Crimes Act. The Bill inserts section 15YDF to the Crimes Act which creates an offence to make a recording of any recorded evidence whilst it is being viewed and prohibits copying, erasing, possessing or supplying recorded evidence.

23. Although varying the conditions in which opposing parties to a proceeding may give evidence may impact the rights set out in Article 14, this is necessary and proportionate due to the potential for re-traumatisation should vulnerable persons be required to provide evidence in the direct presence of the defendant. Additionally, the use of pre-recorded evidence may prevent vulnerable persons from being required to repeat evidence during the proceeding, including any potential re-trial.

24. Safeguards in the Bill will ensure procedural fairness for the defendant and minimise any infringement on the rights of the defendant. Section 15YDC requires that during evidence recording hearings, the defendant must be able to see and hear the vulnerable person giving evidence (if the vulnerable person is giving evidence via CCTV), or otherwise be able to hear the vulnerable person (if the vulnerable person is giving evidence from the same room). The defendant must also be given reasonable access to the original recording in order to be able to view or listen to it (s 15YDF).

Conclusion

25. This Bill is compatible with Australia's human rights obligations because it promotes rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.