House of Representatives

Explanatory Memorandum

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

NOTES ON CLAUSES

Preliminary

Clause 1-Short title

1. This clause provides for the short title of the Act to be the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Act 2024.

Clause 2-Commencement

2. Clause 2 provides that the whole of the Act will commence on the day after the Act receives Royal Assent.

Clause 3-Schedules

3. Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out according to the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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-ENHANCING PROTECTIONS FOR VULNERABLE PERSONS

Crimes Act 1914

Item 1 - After paragraph 15Y(1)(b)

4. This item inserts a new s 15Y(1)(ba) into the Crimes Act 1914 (the Act). This amendment expands the application of special rules protecting vulnerable persons involved in criminal proceedings that involve offences under Division 268 of the Criminal Code Act 1995 (Criminal Code) that are crimes against humanity; war crimes; or crimes against the administration of justice by the International Criminal Court.

Item 2 - After paragraph 15Y(1)(cad)

5. This item amends s 15Y(1) to expand the application of special rules protecting vulnerable persons involved in criminal proceedings to include torture involving children under Division 274 of the Criminal Code (s 15Y(1)(cae)); and drug offences involving children under Division 309 of the Criminal Code (s 15Y(1)(caf)). The effect of this amendment is to more comprehensively protect vulnerable persons by recognising the broader range of offences in the Criminal Code that may involve children and vulnerable persons, and to whom the special rules in Part IAD of the Crimes Act should also apply.

Item 3 - After paragraph 15Y(1)(cba)

6. This item amends s 15(1) to expand the circumstances in which the special rules for proceedings involving children contained in Part IIIA of the Act apply, to more comprehensively protect vulnerable persons by recognising the broader range of offences in other Commonwealth legislation that may involve children and vulnerable persons, and to whom the special rules in Part IAD of the Crimes Act should also apply. The expanded circumstances include any offence against:

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Part IIIA of the Act prior to the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (s 15Y(1)(cba);

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Parts 3 (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation), and 5 (Sexual servitude) of the Crimes Act 1900 (ACT) should those offences arise under the Crimes at Sea Act 2000. This amendment ensures that proceedings of this nature arising on ships at sea are subject to these special rules (s 15Y(1)(cbc); and

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Section 14 or 15 of Crimes (Aviation) Act 1991 which arise under Parts 3, (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation) and 5 (Sexual servitude) of the Crimes Act 1900 (ACT). This is to ensure that proceedings of this nature arising on aeroplanes may be subject to these special rules (s 15Y(cbd)).

Item 4 - At the end of subsection 15Y(1)

7. This item inserts a new note at the end of s 15Y(1). The note states that on 15 April 2010, Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act commenced. This amendment supports the amendment made in item 3 and clarifies the date on which Part IIIA was repealed.

Item 5 - Before paragraph 15Y(2)(a)

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This item inserts new ss 15Y(2)(aa) and 15Y(2)(ab) which set out additional offences to which special rules for adult complainants involved in proceedings as set out in s 15Y(2) apply. The additional offences include: sexual assault of United Nations and associated personnel as included in section 71.8 of the Criminal Code; and

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crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court as included in Division 268 of the Criminal Code.

8. This amendment expands the circumstances in which special rules protecting vulnerable adult complainants apply.

Item 6 - After paragraph 15Y(2)(b)

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This item inserts new ss 15Y(2)(ba) to 15Y(2)(bl) which sets out additional offences to which special rules for adult complainants involved in proceedings apply as defined in s 15Y(2) of the Act. The additional offences include: child sex offences outside Australia as included in Division 272 of the Criminal Code;

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offences involving child abuse material outside Australia as included in Division 273 of the Criminal Code; an offence against the protection of children as included in Division 273B of the Criminal Code;

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torture as included in Division 274 of the Criminal Code;

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drug offences involving children as included in Division 309 of the Criminal Code;

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offences relating to use of postal or similar services for child abuse material, and offences relating to use of postal or similar services involving sexual activity with persons under 16 as respectively included in Subdivision B and C Division 471 of the Criminal Code;

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offences relating to use of carriage services for child abuse material, and offences relating to use of carriage services involving sexual activity with, or causing harm to, persons under 16 as respectively included in Subdivision D and F of Division 474 of the Criminal Code;

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offences against Part IIIA of the Crimes Act as in force at any time before the commencement of Schedule 1 of the of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010;

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offences against Parts 3 (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation), and Part 5 (Sexual servitude) of the Crimes Act 1900 (ACT) arising under section 6 of the Crimes at Sea Act 2000;

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an offence against sections 14 and 15 of the Crimes (Aviation) Act 1991 (Other offences on board aircraft engaged in certain flights) arising under Parts 3, (Sexual offences), 3A (Intimate image abuse), 4 (Female genital mutilation) and 5 (Sexual servitude) of the Crimes Act 1900 (ACT);

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aggravated offences in relation to work by non-citizens included in Subdivision C of Division 12 of Part 2 of the Migration Act 1958; and

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sexual offences specified in the regulations.

9. This amendment expands the circumstances in which special rules protecting vulnerable adult complainants apply, in order to more comprehensively protect vulnerable persons.

Item 7 - Paragraph 15Y(2)(c)

10. This item amends s 15Y(2)(c) repealing 'paragraph (a) or (b)' and substituting 'one of the preceding paragraphs of this subsection'. This amendment is consequential to item 6 and reflects the expansion of circumstances to which special rules for adult complainants involved in criminal proceedings apply.

Item 8 - Paragraph 15Y(2)(d)

11. This item amends s 15Y(2)(d) by repealing 'paragraph (a), (b) or (c)' and substituting it with 'one of the preceding paragraphs of this subsection'. This amendment is consequential to item 6 and reflects the expansion of circumstances to which special rules for adult complainants involved in criminal proceedings apply.

Item 9 - At the end of subsection 15Y(2)

12. This item inserts a new note at the end of s 15Y(2). The note states that on 15 April 2010, Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 commenced. This amendment supports the amendment in item 3 and clarifies the date on which Part IIIA was repealed.

Item 10 - Section 15YA (definition of child complainant )

13. This item amends the dictionary s 15YA by substituting the definition of 'child complainant'. This amendment expands the existing definition at s15YA of the Act to include a person who is alleged to be a victim of an offence and who was a child at the time the offence was alleged to have been committed, even if that person is no longer a child at the time of the proceeding.

Item 11 - Section 15YA (definition of child witness )

14. This item amends the dictionary in s 15YA by substituting the definition of 'child witnes s'. This amendment expands the existing definition to include a witness in the proceeding who was a child at the time the offence was alleged to have been committed.

15. Amendments in items 10 and 11 are intended to strengthen protections for vulnerable persons who are complainants and/or witnesses in criminal proceedings by expanding protections under the Crimes Act to include those who were children at the time the offence was alleged to have been committed.

Item 12 - Section 15YA

16. This item inserts a new definition into the dictionary at s 15YA of 'evidence recording hearing'.

17. An evidence recording hearing refers to an order made under s 15YDB(1) in which vulnerable persons can provide recorded evidence and reduce the risk of re-traumatisation due to providing evidence multiple times.

Item 13 - Subsection 15YAB(3)

18. This item amends s 15YAB(3) to repeal the word 'sections' and substitute with 'provisions'. This amendment clarifies that the court is able to apply particular provisions to a special witness proceeding.

Item 14 - Before paragraph 15YAB(3)(a)

19. This item inserts s 15YAB(3)(aa) to add Division 2A (evidence recording hearings) to orders the court can make in a special witness proceeding under section 15YAB of the Act.

Item 15 - Paragraph 15YAB(3)(e)

20. This item amends s 15YAB(3)(e) to repeal the term 'recordings' and substitute it with 'or audio recordings of interviews.' This amendment reflects the expansion of the types of recordings permitted to allow for additional types of recording provided for by the amendments in item 27.

Item 16 - After paragraph 15YAB(3)(e)

21. This item inserts s 15YAB(3)(ea) to provide that s 15YNB is available for the purposes of a special witness proceeding under section 15YAB of the Act.

Item 17 - At the end of subsection 15YAB(3)

22. This item inserts s 15YAB(3)(h) to clarify that orders made under s 15YR(1)(c)(iii) (about publications that identify vulnerable persons) are available for a special witness proceeding under 15YAB of the Act.

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

23. This item amends the heading of s 15YB to include "child proceedings" at the end of the heading. This clarifies that s 15YB of the Crimes Act applies to evidence of sexual reputation in proceedings involving children, providing clarity in the application of the section.

Item 19 - Subsection 15YB(1)

24. This item amends s 15YB(1) to omit '(1)'. This is a technical drafting amendment reflecting the shortening of this section.

Item 20 - Subsection 15YB(1)

25. This item amends s 15YB(1) to omit the words 'unless the court gives leave'.

26. This amendment, along with amendments in items 18, 19 and 21, prohibit the admissibility of sexual reputation evidence in child proceedings and supports the reduction of the re-traumatisation of witnesses in child proceedings.

27. Evidence of sexual reputation is not admissible on the basis that such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in any circumstance.

Item 21 - Subsections 15YB(2) to (5)

28. This item repeals ss 15YB(2), 15YB(3), 15YB(4) and 15YB(5), which concern the circumstances in which the court was able to grant leave to hear evidence of a child witness or child complainant's sexual reputation.

29. These subsections are no longer required as the court no longer has discretion to grant leave to hear evidence of a child witness or child complainant's sexual reputation.

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

30. This item amends the heading of s 15YC to include 'child proceedings' at the end of the heading. This is to clarify that the section applies to evidence of sexual experience in proceedings involving children.

Item 23 - Paragraph 15YC(1)(a)

31. This item amends s 15YC(1)(a) by repealing 'or' and substituting it with 'and'. This means that both elements of s 15YC(1) must be satisfied when determining whether evidence of the sexual experience of a child is admissible. This means that a party must seek leave of the court for the evidence to be heard, and the evidence must relate to sexual activities between the child witness or child complainant and the defendant in the proceeding.

32. Strengthening this safeguard restricts the circumstances in which the court may admit evidence relating to sexual activity between the vulnerable person and the defendant in the proceeding, and means that evidence of this nature is no longer automatically admissible.

Item 24 - At the end of subsection 15YC(1)

33. This item amends s 15YC(1) by adding new s15YC(1)(c), which requires that, in determining the admissibility of sexual experience evidence in a child proceeding, the court must be satisfied that the sexual activity with the defendant in the proceeding was existing or recent at the time of the commission of the alleged offence.

Item 25 - At the end of subsection 15YC(4)

34. This item amends s 15YC(4) by inserting new s 15YC(4)(c), which requires the court to have regard to whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the child complainant or child witness.

35. The amendments in items 22, 23, 24 and 25 collectively strengthen the test for the court when considering the admissibility of evidence relating to the sexual experience of a child. By introducing additional elements and increasing the threshold for admissibility of evidence of this kind, this reduces the risk of re-traumatisation of the vulnerable person by ensuring that such evidence is only admissible where there is a sufficient nexus to the matter being heard.

Item 26 - After section 15YC

Section 15YCA

36. This item inserts a new s 15YCA 'Evidence of sexual reputation - vulnerable adult proceedings' after section 15YC. Section 15YCA provides that evidence relating to a vulnerable adult complainant's reputation in relation to sexual activities is inadmissible as evidence in a proceeding involving a vulnerable adult. These amendments support reducing the re-traumatisation of complainants and/or witnesses during proceedings, and complements the amendments in items 18, 19, 20 and 21 relating to evidence in proceedings involving a vulnerable person who is a child.

37. Evidence of sexual reputation is not be admissible on the basis that such evidence is too far removed from evidence of actual events or circumstances for its admission to be in the interests of justice in any circumstance.

Section 15YCB

38. This item inserts a new s 15YCB 'Evidence of sexual experience - vulnerable adult proceedings'. Section 15YCB provides that evidence relating to a vulnerable adult complaint's sexual experience is inadmissible unless the court grants leave, the evidence is of sexual activity with the defendant to the proceedings and the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.

39. Under s 15YCB(2), the court must not grant leave unless it is satisfied that the evidence is substantially relevant to the facts in issue in the proceeding and (if the evidence relates to the credibility of the vulnerable adult complainant and is to be adduced in cross-examination of the complainant), the evidence has substantial probative value.

40. Subsection 15YCB(3) provides that evidence is not to be treated as substantially relevant to facts in issue merely because of inferences that the evidence may raise as to the vulnerable adult complainant's general disposition.

41. Subsection 15YCB(4) sets out matters (without exclusion of other matters to which the court may have regard) to which the court must have regard when deciding whether evidence has substantial probative value for the purposes of s 15YCB. Matters to which the court must have regard include:

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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 (s 15YCB(4)(a));

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The period that has elapsed since the acts or events to which the evidence relates were done or occurred (s 15YCB(4)(b)); and

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Whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant (s 15YCB(4)(c)).

Item 27 - After Division 2 of Part IAD

42. This item inserts new Division 2A titled 'Evidence recording hearings' after Division 2 Part IAD.

43. This amendment implements a key component of Theme 2 of the National Strategy, and addresses recommendations 52, 53, 56 and 61 of the Royal Commission's Report.

Section 15YDA

44. This item inserts s 15YDA titled 'Application'. This Division applies to the following persons, who are deemed to be vulnerable persons for the purposes of Division 2A:

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for a child proceeding set out under s 15Y(1) - a child witness

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for a vulnerable adult proceeding set out under s 15Y(2) - a vulnerable adult complainant

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for a special witness proceeding as defined at s 15Y(3) - a special witness for whom an order under s 15YAB(3) is in force for Division 2A.

Section 15YDB

45. This item inserts s 15YDB titled 'Evidence recording hearings', which gives the court the power to order an evidence recording hearing at which a vulnerable person may record their evidence. An evidence recording hearing may be ordered by the court at any point in a proceeding that involves a vulnerable person within the scope set out in s 15YDA. Section 15YDB assists in reducing the number of times a vulnerable person may be required to give evidence, as the court is able to tender this evidence in future proceedings.

46. Subsection 15YDB(1) provides that the court may order an evidence recording hearing if it is satisfied that it is in the interests of justice to do so.

47. There is no requirement in s 15YDB that the court must order an evidence recording hearing. Where equipment is unavailable or there is some other reason why the court is not satisfied that it would be in the interests of justice, the court is under no obligation to order an evidence recording hearing.

48. When determining whether it is in the interests of justice to order an evidence recording hearing as set out by s 15YDB(1), s 15YDB(2) requires that the court consider whether each party to the proceeding has had sufficient time to prepare for such a hearing, the nature and availability of each party's legal representation, the circumstances of the vulnerable person, and the availability of evidence recording facilities to the court.

49. Subsection 15YDB(3) provides that an evidence recording hearing can be ordered by the court in order to record the evidence of a vulnerable person as it relates to evidence in chief, cross-examination or re-examination.

50. Subsection 15YDB(4) provides that an order may be made on the court's own initiative or on application by or on behalf of a party to the proceeding. The order can be made at any point during the proceeding and the evidence recording hearing can be held at any time during the proceeding, including after the trial in the proceeding has begun. The requirements of ss 15YDB(1) and 15YDB(2) must be met in either circumstance.

51. Subsection 15YDB(5) provides that evidence recorded by police prior to the commencement of proceedings may be admitted as evidence in chief at an evidence recording hearing. This amendment implements recommendation 9 of the Royal Commission's Report, that investigative interviews may be used as evidence in chief. Subsection 15YDB(5) aims to reduce instances of re-traumatisation of vulnerable persons by ensuring they are not required to provide the same evidence on multiple occasions where it is practicable and equitable to avoid this occurring. Subsection 15YDB references s 15YM, which is the provision of the Act which sets out the requirements for use of video recordings which may be admitted as evidence in chief.

52. Subsection 15YDB(6) empowers the court to adjourn the proceeding, or part of the proceeding, to a place equipped with adequate facilities for evidence of the type referenced in s 15YDB to be given if the court is not equipped with the necessary facilities, or the court otherwise considers it appropriate to do so.

Section 15YDC

53. The item inserts new s 15YDC titled 'Arrangements for persons at the hearing', which sets out the requirements for how evidence recording hearings are to be conducted.

54. Subsection 15YDC(1) provides that, in order to ensure that the purposes of an evidence recording hearing are met, the vulnerable person must not be able to see the defendant while they are giving their evidence.

55. Subsection 15YDC(2) preserves procedural fairness during proceedings by requiring that the defendant be provided the opportunity to observe the evidence recording hearing (as they would be during an ordinary hearing). Where attending in the same space as the vulnerable person, for example where a courtroom is divided by a partition between the two parties, the defendant must be allowed to hear the vulnerable person giving evidence. Where the vulnerable person is giving evidence remotely, such as by closed-circuit television (CCTV), the defendant must be allowed to hear and see the vulnerable person giving evidence via CCTV. This amendment is intended to address recommendation 61 of the Royal Commission's Report relating to the ability for vulnerable persons to give evidence via CCTV.

56. New subsection 15YDC(3) also provides that the jury is not to be present during the evidence recording hearing, if there is a jury in the matter. Beyond this, the court is given discretion over those who may attend the evidence recording hearing. For example, the court may determine that a support person or mental health professional are required. This is intended to address recommendation 61 of the Royal Commission's Report, that the vulnerable person should be able to be supported while giving evidence in an evidence recording hearing.

57. Subsection 15YDC(3) requires that if there is a jury in the proceeding, the jury must not be present for the evidence recording hearing.

58. Subsection 15YDC(4) otherwise allows the court to determine who is to be present at the evidence recording hearing. This discretion is limited by ss 15YDC(1), 15YDC(2) and 15YDC(3) in relation to the vulnerable person, the defendant, and the jury.

Section 15YDD

59. This item inserts section 15YDD titled 'Evidence must be recorded'. Subsection 15YDD(1) requires that evidence given during an evidence recording hearing must be recorded by either video or audio.

60. Subsection 15YDD(1) requires the recording to be either audio, or audio-visual. It is intended that vulnerable persons need not be video-recorded to participate in an evidence recording hearing, but may instead opt to only be recorded by audio alone. Because some vulnerable persons' trauma relates specifically to video recording, a requirement to be recorded again could cause re-traumatisation amongst some victims and survivors. By expanding the types of recordings which are admissible in an evidence recording hearing, the provision seeks to be inclusive of the varied victims and survivor needs.

61. Subsection 15YDD(2) requires that the recording of the evidence described in s 15YDD(1) must be played at the hearing of the proceeding; and that the recording be admitted in evidence as the vulnerable person's evidence at the hearing as if the vulnerable person gave evidence at the hearing in person.

62. Subsection 15YDD(3) clarifies that subsection 15YDD(2) is subject to the caveat in s 15YDE.

Section 15YDE

63. This item inserts s 15YDE titled 'Admissibility of evidence'. Subsection 15YDE provides that the court may refuse to admit the whole or part of the contents of the recording. Section 15YDE allows the court to edit recorded evidence in such a manner that the recording played during the proceedings does not include evidence which it deems inadmissible.

Section 15YDF

64. This item inserts s 15YDF titled 'Access to recording and transcripts'. Section 15YDF contains three components:

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Subsections 15YDF(1), 15YDF(2) and 15YDF(3) relate to defendants' access to recordings;

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Subsections 15YDF(4) and 15YDF(5) contain requirements in relation to transcripts; and

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Subsections 15YDF(6) and 15YDF(7) contains an offence provision for unauthorised activities relating to a recording.

65. Subsection 15YDF(1) states that neither a defendant in the proceeding, nor their legal representative, are entitled to be given a video or audio recording made in an evidence recording hearing, or a copy of that recording. Subsection 15YDF(1) specifies that for the purposes of s 15YDF, the 'original recording' is considered to be the video or audio recording made in an evidence recording hearing (as distinguished from a copy of the original recording).

66. Subsection 15YDF(2) provides that, in a proceeding where a vulnerable person's evidence has been given by evidence recording hearing, the defendant must be given reasonable access to the original recording in order to view it or listen to it. This is to ensure that the defendant has the same opportunity as they would if the proceeding was held in person and the vulnerable person's evidence given in person.

67. Subsection 15YDF(4) requires that the court must give each party to the proceeding and the jury (if any) access to, or a copy of, the transcript of the original recording.

68. Subsection 15YDF(5) states that, for the avoidance of doubt, ss 15YDF(1), 15YDF(2), and 15YDF(4) do not apply in relation to any part of the recording the court has refused to admit. Subsection 15YDF(5) references s 15YDE which empowers the court to refuse to admit the whole or part of the contents of such a recording. The effect of s 15YDF(5) is that in relation to parts of a recording that the court has refused to admit:

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There is no requirement to give the defendant reasonable access in order to view or listen to the recording (or part of the recording);

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There is no requirement for the court to give to each party to the proceeding, and (if any) the jury, a copy of or transcript of the recording (or part of the recording).

69. Subsection 15YDF(6) is a criminal offence provision. The elements of the offence are set out in ss 15YDF(6)(a) and 15YDF(6)(b).

70. Paragraph 15YDF(6)(a) sets out the first element of the offence, which is satisfied if a person intentionally:

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Makes a recording (or other copy) of the original recording (or part of the original recording);

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Does anything (either directly or indirectly) to damage or alter the original recording (or part of the original recording);

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Possesses or supplies the original recording (or part of the original recording) or a copy of the of the original recording (or a copy of a part of the original recording).

71. Paragraph 15YDF(6)(b) sets out the second element of the offence, which is satisfied if a person does any of the acts set out in s 15YDF(6)(a) without lawful authority or excuse. Examples of lawful authority or excuse for the purposes of s 15YDF(6)(b) may include staff of the court who, in the course of their duties, must perform some version of the above activities with respect to the recording. Paragraph 15YDF(6)(b) is an element of the offence, which requires the prosecution to prove that the person was acting without lawful authority or excuse.

72. The burden for proving the offence in s 15YDF(6) lies with the prosecution, and the standard of proof to be discharged by the prosecution is beyond reasonable doubt consistent with the requirements of Part 2.6 of the Criminal Code.

73. The offence in s 15YDF(6) is punishable by up to 12 months imprisonment or 60 penalty units, or both. This penalty reflects the seriousness of the offence, which reinforces Australia's commitment to the safety of vulnerable persons and the security of the justice system. It is also consistent with similar state and territory offences such as section 59 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

74. Subsection 15YDF(7) provides that the fault element for the element of the offence at s 15YBF(6)(a) is intention as defined in Division 5 of the Criminal Code.

Section 15YDG

75. This item inserts section 15YDG titled 'Vulnerable person need not give further evidence unless court orders'. The purpose of this section is to avoid vulnerable persons from being required to provide evidence further to that provided in an evidence recording hearing unless specific circumstances are met which warrants the person giving further evidence, and the court is satisfied that those circumstances arise.

76. Subsection 15YDG(1) specifies that if evidence given by a vulnerable person in an evidence recording hearing is admitted in the proceeding, that vulnerable person is not required to give any further evidence in that proceedings unless the court orders that it is necessary for a vulnerable person to do so. The circumstances where a court may order that a vulnerable person must give further evidence are set out in ss 15YDG(1)(a), 15YDG(1)(b) and 15YDG(1)(c), and include:

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in order to clarify the vulnerable person's evidence given in the evidence recording hearing;

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

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in the interests of justice.

77. There is a note directly following s 15YDG(1) which clarifies that s 15YDG(1) applies to further evidence that could otherwise be given on examination in chief, cross examination, or on re-examination.

78. Subsection 15YDG(2) sets out requirements that the court must adhere to in the instance the court orders that the vulnerable person is required to give further evidence in reliance on s 15YDG(1). These requirements are set out in ss 15YDG(2)(a) and 15YDG(2)(b), and require that the court must (if making an order under s 15YDG(1)):

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Order that the further evidence is to be given in an evidence recording hearing (see s 15YDB); and

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Ensure that the vulnerable person is questioned in the subsequent evidence recording hearing only about the matters specified in the order of the court.

79. Subsection 15YDG(3) provides that any party to the proceeding, including the vulnerable person, petition the court for an order for the vulnerable person to provide further evidence under s 15YDG. It is also open to the court to an order of this nature on its own initiative.

Section 15YDH

80. This item inserts s 15YDH titled 'Division applies despite other rules of evidence'. The purpose of this item is to clarify the interaction between Division 2A to the Act, and the Evidence Act 1995.

81. Section 15YDH provides that Division 2A to the Act displaces the Evidence Act 1995 (Cth) and any other rules of evidence or procedure. Section 15YDH is substantially the same as existing section 15YNF of the Act and has been inserted to make clear the intention of Parliament in relation to the application of Division 2A.

Item 28 - Subsection 15YI(1)

82. This item amends s 15YI(1) and omits the word 'Evidence' and substitutes it with 'Subject to Division 2A, evidence'. This amendment clarifies that existing provisions, which require vulnerable persons to give evidence in real time via CCTV to avoid needing to appear in the same venue as other parties, are subordinate to the provisions under Division 2A, and will only apply should the court not order an evidence recording hearing in accordance with Division 2A.

83. It is intended that Division 2A sets out the primary procedures with respect to the providing of evidence by vulnerable persons, while s 15YI provides an alternative to those who would prefer to access it.

Item 29 - Section 15YK

84. This item is a technical drafting amendment to amend s 15YK to insert '(1)' before the beginning of section 15YK, facilitating the expansion of the section to include multiple subsections at set out in Item 30.

Item 30 - At the end of section 15YK

85. This item inserts a new s 15YK(2) the end of s 15YK. The purpose of s 15YK(2) is to ensure procedural fairness during criminal proceedings and that the defendant is not disadvantaged in any way by the recording of evidence, and that they are able to observe the giving of that evidence.

86. Subsection 15YK(2) requires that where a vulnerable person is giving evidence remotely, one or more of the television monitors displaying the vulnerable person giving evidence (and any person present with the vulnerable person), must be able to be observed by:

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

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If there is a jury in the proceeding, members of the jury.

Item 31- Subsection 15YL(1)

87. This item amends s 15YL(1) to insert new words '(or under Division 2A)' after the wording 'closed-circuit television', reflecting the insertion of the evidence recording hearing framework. This is an amendment consequential to item 27.

Item 32 - At the end of Division 4 of Part IAD

Section 15YLA

88. This item inserts s15YLA titled 'Recording of evidence given in person' at the end of Division 4 of Part IAD. The purpose of s 15YLA is to set out the circumstances in which evidence given by any person to whom the section applies, as set out in subsection 2, must be recorded.

89. Subsection 15YLA(1) prescribes the circumstances where a court must order that evidence given in-person by a relevant person (being a person falling within the scope of s 15YLA(2)) be recorded. The circumstances in which the court must make an order are where all of the following apply:

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The court is satisfied that the evidence could be used in another proceeding (s 15YLA(1)(a)); and

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The court is equipped with the necessary facilities; and

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The person giving the evidence agrees to being recorded.

90. Subsection 15YLA(2) states that a person to whom s 15YLA(1) applies includes a child witness (in relation to a child proceeding) - s 15YLA(2)(a); a vulnerable adult complainant (in relation to a vulnerable adult proceeding) - s 15YLA(2)(b); or a special witness proceeding (in relation to a special witness for whom an order under s 15YAB(3) is in force) - s 15YLA(2)(c).

91. Subsection 15YLA(3) provides that evidence to be recorded in accordance with s 15YLA(1) may be recorded either by audio or audio-visual recording.

92. Subsection 15YLA(4) clarifies that s 15YLA(1) applies irrespective of whether the evidence was given by CCTV.

93. Section 15YLA addresses recommendation 56 of the Royal Commission's Report, which recommended that jurisdictions allow the recording of evidence no matter the mode of delivery, and for use of this recorded evidence in subsequent proceedings, in an attempt to reduce the instances in which a vulnerable person had to recount potentially traumatic details.

Item 33 - Division 5 of Part IAD (heading)

94. This item amends the heading of Division 5 of Part IAD to omit 'recordings' and substitute 'or audio recordings of interviews'. This amendment reflects the amendments made in item 32 and expands the types of recordings to which this part refers.

Item 34 - Section 15YM (heading)

95. This item amends the heading of s 15YM to omit 'recordings' and substitute 'or audio recordings of interviews'. This amendment reflects the amendments made in item 32 and expands the types of recordings to which this part refers.

Item 35 - Subsection 15YM(1)

96. This item amends s 15YM(1) item to insert 'or audio' after 'video'. This item is consequential to the amendments made by item 32.

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

97. This item amends s 15YM to repeal and replace s 15YM(4).

98. The existing s 15YM(4) requires that where a person gives evidence in chief by video recording (as permitted by s 15YM(1)), that person must be available for cross examination and re-examination.

99. The new s 15YM(4) states that the new requirement is subject to the requirements and procedures set out in Divisions 2A and 3 of the Act. Subject to those requirements, s 15YM(4) requires that if a video or audio recording of an interview of a person is admitted in evidence in chief under s 15YM(1), the person must be available for cross-examination and re-examination.

100. This item ensures that s 15YM clarifies the interaction between s 15YM and Divisions 2A and 3 of the Act, and includes consequential amendments to recognise that relevant evidence can be given by either video or audio recording.

Item 37 - At the end of section 15YM

101. This item inserts a criminal offence at the end of section 15YM which deals with recordings of interviews conducted by police which may be admitted as evidence in chief for the purposes of proceedings involving a vulnerable person (called 15YM recordings, for the purpose of describing this item). There are two elements to the offence, which are set out in ss 15YM(5) and 15YM(6).

102. Paragraph 15YM(5)(a) sets out the first element of the offence, which is satisfied if a person intentionally:

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Makes a recording (or other copy) of a s 15YM recording (or part of a s 15YM recording);

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Does anything (either directly or indirectly) to damage or alter the s 15YM recording (or part of the s 15YM recording recording);

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Possesses or supplies the s 15YM recording (or part of the s 15YM recording) or a copy of the of the s 15YM recording (or a copy of a part of the s 15YM recording).

103. Paragraph 15YM(5)(b) sets out the second element of the offence, which is satisfied if a person does any of the acts set out in s 15YM(5)(a) without lawful authority or excuse. Examples of lawful authority or excuse for the purposes of s 15YM(5)(b) may include staff of the court who, in the course of their duties, must perform some version of the above activities with respect to the recording. Paragraph 15YM(5)(b) is an element of the offence, which requires the prosecution to prove that the person was acting without lawful authority or excuse.

104. The burden for proving the offence in s 15YM(5) lies with the prosecution, and the standard of proof to be discharged by the prosecution is beyond reasonable doubt consistent with the requirements of Part 2.6 of the Criminal Code.

105. The offence in s 15YM(5) is punishable by up to 12 months' imprisonment or 60 penalty units, or both. This penalty reflects the seriousness of the offence, which reinforces Australia's commitment to the safety of vulnerable persons and the security of the justice system. It is also consistent with similar state and territory offences such as section 59 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

106. Subsection 15YBD(7) provides that the fault element for the element of the offence at s 15YBF(6)(a) is intention as defined in Division 5 of the Criminal Code.

107. The offence in s 15YM(5) mirrors that in s 15YBF(6). This ensures that the equal offences apply for misuse of video evidence, and relevant recordings are covered, irrespective of which provision is relied upon for the recording of that evidence.

Item 38 - Section 15YN (heading)

108. This item amends the heading of s 15YN to omit 'recordings', and substitute 'or audio recordings of interviews'. This item is a technical drafting amendment consequential to the amendments made by item 32.

Item 39 - Subsections 15YN(1) and (2)

109. This item amends ss 15YN(1) and 15YN(2) to insert 'or audio' after 'video' at ss 15YN(1) and 15YN(2). This item is consequential to the amendments made by item 32.

Item 40 - Subsection 15YN(2)

110. This item amends s 15YN(2) to omit 'listen to and view' and substitute 'view or listen to'. Alongside items 38 and 39, this amendment expands the types of recordings that s 15YN refers to. This item is consequential to the amendments made by item 32.

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

111. This item amends the note at the end of s 15YNB(1) to add 'which could include evidence recorded by video at an evidence recording hearing or in an interview'. This amendment clarifies that evidence given in an original proceeding may include recorded evidence as at ss 15YDB (Evidence recording hearings) or 15YDM (Use of video or audio recordings of interviews (as amended)).

Item 42 - Paragraph 15YNB(4)(a)

112. This item amends s 15YNB(4)(a) to omit 'child complainant' and substitute 'child witness'. This amendment is consequential to item 11 and captures the expanded definition of child witness which, as amended, includes child complainants.

Item 43 - Subsection 15YNB(4)

113. This item amends s 15YNB(4) to insert a new s 15YNB(4)(c). This amendment expands the subsection so that it applies to special witnesses in special witness proceedings, meaning that evidence used in an original hearing can also be used in a subsequent hearing (in certain circumstances set out in the section) without the need to provide the same evidence more than once. The effect of this subsection will apply to a special witness for whom an order under s 15YAB(3) is in force.

Item 44 - Section 15YND (heading)

114. This item amends the heading of s 15YND to insert 'or audio recordings' after 'video' in the heading. This item is consequential to the amendments made by item 32.

Item 45 - Subsection 15YND(1)

115. This item amends s 15YND(1) to insert 'or audio' after 'includes a video' at s 15YND(1). This item is consequential to the amendments made by item 32.

Item 46 - Subsection 15YND(1)

116. This item amends s 15YND(1) to omit the second occurrence of the word 'video' from s 15YND(1). This item is consequential to the amendments made by item 32.

Item 47 - Subsection 15YND(2)

117. This item amends s 15YND(2) to omit 'video recording in order to view it' and substitute 'recording in order to view or listen to it'. Alongside items 44, 45 and 46, this amendment expands the types of recordings that s 15YND refers to. This item is consequential to the amendments made by item 32.

Item 48 - Subsection 15YO(1)

118. This item amends s 15YO(1) to insert 'or at an evidence recording hearing' after 'proceeding'. This amendment expands the circumstances in which an adult may accompany a vulnerable person to include evidence recording hearings. This amendment is intended to minimise the negative psychological impact of providing evidence relating to past trauma.

119. This advances Theme 2 of the National Action Plan and addresses recommendation 61 of the Royal Commission's Report regarding the provision of support to vulnerable persons giving evidence at evidence recording hearings.

Item 49 - Paragraph 15YO(1A)(c)

120. This item amends s 15YO(1A)(c) to repeal 'for this section;' and substitute 'for this section.' at the end of s 15YO(1A)(c). This amendment removes the semi-colon and replaces it with a full-stop, because the subsequent subsections are not conjunctive.

Item 50 - After Section 15YO

121. This item inserts new s 15YOA 'Right to interpreter'. The purpose of this section is to ensure that vulnerable people have access to the resources that they require to be able to understand, and meaningfully engage in proceedings. This measure strengthens the fairness of proceedings by assisting all parties to understand and participate in court process.

122. Subsection 15YO(1) requires that the court must arrange an interpreter for a proceeding involving a vulnerable person (as defined in s 15YOA(2)) to assist that person understand and participate in the proceeding if the court is satisfied of relevant matters. Those matters are also set out in s 15YO(1) and include if the court is satisfied that the person in question has inadequate knowledge of the English language, or a physical disability that would prevent them from exercising reasonable fluency in the English language.

123. Subsection 15YOA(2) sets out the scope of persons for whom an interpreter must be provided if the court is satisfied of the matters in s 15YOA(1). Those persons include child witnesses (for a child proceeding), vulnerable adult complainants (for a vulnerable adult proceeding), and special witnesses for whom an order under s 15YAB(3) is in force for this section.

Item 51 - Paragraph 15YQ(1)(c)

124. This item amends s 15YQ(1)(c) to insert 'or audio' after 'video'. This amendment expands the types of recordings this provision refers to. This item is consequential to the amendments made by item 32.

Item 52 - Section 15YR (heading)

125. This item amends s 15YR to repeal the heading of that section, 'Publication identifying child witnesses, child complainants or vulnerable adult complainants', and replaces it with 'Publication identifying another person as a child witness, child complainant, vulnerable adult complainant or special witness'.

126. This amendment reflects the expanded categories of vulnerable people who may identify themselves or be identified publicly, and the manner in which that may occur.

127. By specifying that this section relates to 'another person', this amendment clarifies that vulnerable persons who are complainants and/or witnesses in a criminal proceeding may publicly identify themselves.

Item 53 - Paragraph 15YR(1)(c)

128. This item amends s 15YR(1) by repealing s 15YR(1)(c) and substituting it with a new paragraph that sets out the categories of vulnerable persons for whom, in certain circumstances, their public identification by another will enliven the offence in subsection (1), including child witnesses, vulnerable adult complainants and special witnesses as defined elsewhere in the Act.

129. Unamended, the offence in s 15YR(1) was previously satisfied if each of three elements were met:

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the person publishes any matter (s 15YR(1)(a); and

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the person does not have the leave of the court to publish the matter (s 15YR(1)(b); and

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the matter (i) identifies another person, who is a person to whom subsection 15YR(1A) applies (relating to child witnesses and vulnerable adult witnesses), or (ii) the matter is likely to lead to the vulnerable person being identified as such (s 15YR(1)(c); and

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the vulnerable person is not a defendant in the proceeding (s 15YR(1)(d).

130. The amended s 15YR(1)(c) updates the element of the offence relating to vulnerable persons who may not be identified. New s 15YR(1)(c) is satisfied if the matter identifies, or is likely to lead to the identification of another person (defined for the purposes of the offence as 'the vulnerable person') if the other person is any of :

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a child witness or child complainant in a child proceeding (s 15YR(1)(c)(i); or

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a vulnerable adult complainant in a vulnerable adult proceeding (s 15YR(1)(c)(ii); or

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in the case of a special witness in a special witness proceeding for whom an order under s 15YAB(3) is in force for this subparagraph, a special witness in a special witness proceeding (s 15YR(1)(c)(iii).

131. These amendments to s 15YR(1)(c) align the persons protected against the behaviour outlined in the offence with the protected categories of vulnerable persons included through this amendment Act.

Item 54 - Subsection 15YR(1A)

132. This item amends s 15YR to repeal s15YR(1A). The subsection states that the offence set out in subsection (1) applies to child and vulnerable adult proceedings. Subsection 15YR(1A) is no longer required as the matters covered in this subsection have been incorporated in the amendment to s 15YR(1)(c) (at item 53).

Item 55 - Subsection 15YR(2)

Updated offence provision

133. This item repeals s 15YR(2) and substitutes it with an exemption to the offence in existing s 15YR(1). The purpose of new s 15YR(2) is to ensure that vulnerable persons to whom this section applies are able to identify themselves as such, and that another person may do so on their behalf in specific circumstances. The exemption also applies to where the publication of relevant information is done within the course of legal proceedings. This was included in the previous s 15YR(2), and is retained in the new s 15YR(2).

134. The offence in s 15YR(1) applies only to the publication of information about another person. It is intended that at all times, a vulnerable person may publish information identifying themselves as a vulnerable person who is a party to a criminal proceeding for the purposes of the Act.

Expanded exemptions to the offence in s 15YR(1)

135. Subsection 15YR(2) sets out five exemptions to the offence at s 15YR(1). A defendant to a matter where the offence in s 15YR(1) is alleged may rely on any of the below as a defence, but will bear an evidential burden in relation to proving the matter:

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Paragraphs 15YR(2)(a) and 15YR(2)(b) state that s 15YR(1) does not apply if the publication is in an official publication in the course of, and for the purpose of the proceeding; or 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 the Part of the Act within which this section resides);

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Paragraph 15YR(2)(c) states that s 15YR(1) will not apply if the vulnerable person is deceased;

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Paragraph 15YR(2)(d) states that in relation to a vulnerable person who is an adult, the vulnerable person has consented to the publication in accordance with s 15YR(2A). A vulnerable person who is an adult is taken to be able to provide informed consent to such publication without further safeguards, subject to subparagraph 15YR(2A)(iii), which requires the person to have decision-making capacity in order to consent. The defence under s 15YR(2)(d) also requires the publication to be in accordance with the limits (if any) set by the vulnerable person.

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Paragraph 15YR(2)(e) provides an exemption in limited circumstances where the publication is in relation to a child. The limited circumstances include where the child has given informed consent; and the publication is in accordance with the limits (if any) set by the child; and the consent was accompanied by a supporting statement in accordance with s 15YR(2B). Subsection 15YR(2B) sets out that a child who has provided their informed consent must also seek a statement from a qualified practitioner as provided for in subsection 15YR(2B) to determine that they understand the consequences of their decision to be publicly identified in such a manner. This reflects a higher threshold for establishing that a child has provided that informed consent.

136. A note is included after new s 15YR(2) to the effect that the defendant bears an evidential burden in relation to the matter in subsection (2). Placing the evidential burden on the defendant in relation to the exemptions in subclause (2) is appropriate because the facts in relation to the exemption would be peculiarly within the knowledge of the defendant. In particular, it would be impracticable to require the prosecution to prove that the defendant had not sought the informed consent of the party and/or had not obtained a certificate as set out in paragraph (e), while it would be straightforward for the defendant to provide this evidence. This evidentiary burden is the same as was included in relation to the more limited defences in the repealed s 15YR(2).

Requirement for consent to be informed

137. Subsection 15YR(2A) is inserted to require that, for the purposes of determining whether a persons consent has been given in relation to the defences in s 15YR(2), that consent is free and informed. Subsection 15YR(2A) requires that at the time the person gives consent, that person understands both (a) the options available to the person (including that the person is not required to give the consent); and (b) the consequences of giving the consent

Requirements for supporting statements accompanying a child's consent

138. Subparagraph 15YR(2)(e)(iii) requires that where a child gives their consent, that consent must be accompanied by a supporting statement. Subsection 15YR(2B) sets out the requirements for that supporting statement.

139. The supporting statement must be:

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written (s 15YR(2B)(a)); and

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be made by a person who is either a medical practitioner or a person registered or licenced as a psychologist under a law or a state or territory that provides for such licensing or registration. Regulations made under the Act may also prescribe other persons authorised to make supporting statements (s 15YR(2B)(b); and

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include the name, qualification and business address be included on the written supporting statement (s 15YR(2B)(c)); and

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state that, in the opinion of the practitioner, the vulnerable person understand both what it means to be identified as a vulnerable person of that kind, and the consequences of losing anonymity (s 15YR(2B)(d)).

140. These requirements ensure that where a child is giving consent, there are greater protections to ensure that the consent is free, fully informed and the child is capable of giving that consent.

Item 56 - At the end of subsection 15YR(4)

141. This item amends s 15YR(4) to inserts ss 15YR(4)(d) and 15YR(4)(e) at the end of s 15YR(4). Subsection 15YR(4) sets out additional factors in the list of factors the court must consider when deciding whether to grant leave to a person to publish identifying information relating to a vulnerable person who is party to a proceeding.

142. Specifically, the court must consider any trauma or damage to the reputation of a vulnerable person (who is not the defendant) involved in the proceeding that would be caused by the publication of the information (s 15YR(4)(d), as well as any other matter the court thinks is relevant (s 15YR(4)(e). This flexibility recognises the complex and varied nature of cases that may come before the court in this respect. The considerations are designed to weigh the impact on the vulnerable person as a result of publication as well as the interests of justice.

Item 57- Subsection 15YR(5)

143. This item amends s 15YR to repeal s 15YR(5) and substitute it with amended wording clarifying that the judicial officer who constituted the proceedings is not required to constitute proceedings where leave is sought once the matter is concluded. This is to assist in the timely hearing of matters brought before the court.

144. New s 15YR(5) is intended to have the same effect as the repealed s 15YR(5), but has been redrafted for clarity.

Item 58 - Paragraph 15YR(7)(c)

145. This item amends s 15YR to repeal s 15YR(7)(c) and substitute it with 'each vulnerable person in relation to the proceeding.' This amendment is consequential to item 54, and reflects the expanded category of persons to whom s 15YR(7) applies.

Item 59 - Transitional - Proceedings in Progress

146. This provision provides transitional measures for proceedings that are in progress at the time of commencement of the provisions in this Act.

147. Where a proceeding has already commenced prior to this Bill receiving Royal Assent, that proceeding will operate as if this Bill had not commenced, and Part IAD of the Act as it existed immediately prior to the commencement of this schedule will continue to apply to that proceeding.