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Senate Legal and Constitutional Affairs Committee report - Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024

9 May 2024
 

On 24 April 2024, the Senate Legal and Constitutional Affairs Committee tabled its report into the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024.

The Law Council provided a written submission to the Committee on 3 March 2024, and appeared before the Committee on 12 April 2024. A further supplementary submission, addressing several questions we took on notice, was provided to the Committee on 19 April 2024.

The Committee’s report contains 63 references to the Law Council, many attributed to Phillip Boulton SC (National Criminal Law Committee) and Shaun Ginsbourg (Victorian Bar), who appeared before the Committee along with Nathan MacDonald from the Law Council Secretariat.

The Majority Report made three recommendations prior to recommending that the Bill pass.  Each of these recommendations are consistent with Law Council views (although not all of the Law Council’s six recommendations were adopted). The recommendations, together with some brief commentary on how they align with the Law Council’s views are set out below.

Recommendation 1

The Committee recommends that the Attorney-General’s Department undertakes further consultation on items 23, 24 and 26 of the Bill to develop amendments that ensure the current provisions limiting evidence of sexual experience do not adversely impact the ability to prosecute a federal crime against a child, or adversely impact the ability of a defendant to defend a federal prosecution.

This recommendation directly responds to concerns raised by the Law Council regarding the breadth of sexual experience evidence that may be admitted in proceedings involving a child witness, child complainant or vulnerable adult complainant.  The Law Council had expressed concern that the Bill introduced evidentiary restrictions which exceeded admissibility thresholds in all other Australian jurisdictions. We pointed out that this appeared to be pre-emptive at a time when the Australian Law Reform Commission is conducting a holistic review of these very issues.  The AGD has since advised that it will provide advice to Government on options to address the issues raised by the Law Council in relation to sexual experience evidence.

Recommendation 2

The Committee recommends that the bill is amended to remove the word ‘physical’ from section 15YOA and that the provision be broadened to include other persons with intellectual disability or other communication difficulties who may require an interpreter.

This recommendation reflects the recommendation of the Law Council that the word ‘physical’ be removed from proposed section 15YOA. This was based on the view that it would be more consistent with other regimes, and inclusive of people with disabilities (beyond physical disabilities) that may require an interpreter.

Recommendation 3

The Committee recommends that the Attorney-General’s Department considers amendments to the bill to clarify the interaction of, and different protections available to vulnerable adult complainants and child complainants.

This recommendation broadly reflects the views of the Law Council, especially in relation to the potential for confusion created by the expansion of the range of relevant proceedings involving vulnerable adult complainants to include various offences against children. The Law Council noted that this drafting created conflict with the proposed expanded definition of ‘child complainant’ in clause 10, and there was the potential for an adult complainant to be simultaneously considered both a ‘child complainant’ and ‘vulnerable adult complainant’.

The Committee’s report also included additional comments from Senator Scarr, who agreed with the above points, however made several additional recommendations, including the following, which are directly in response to the Law Council’s submission:

Recommendation 4

That the Bill be amended to provide additional safeguards around the use of audio-only recordings in the form proposed by the Law Council of Australia or in some other form to address the issues raised by the Law Council of Australia with respect to the use of audio-only evidence.

This recommendation aligns with the Law Council’s concern that the Bill seeks to extend the current law to allow an audio-only interview to become a witness’s evidence-in-chief. While we supported the ability for recordings to be used as a protection from re-traumatisation, we were concerned that removing the visual component from pre-recorded evidence may significantly hamper the ability for a court to assess a witness’s demeanor, which remains a fundamental aspect of the jury being able to evaluate a witness’s credibility and reliability. To assist the Committee, our supplementary submission provided drafting suggestions that would create a default position for evidence-recording hearings to use video, while making an exception for circumstances where there is a significant risk of re-traumatisation.

Recommendation 5

The Attorney-General’s Department provide a response to the concerns raised by Professor Jeremy Gans and further consider the additional recommendations made by the Law Council of Australia (not dealt with elsewhere in the Majority Report or otherwise in these Additional Comments) and consider further amendments to the Bill to address the concerns raised.

This recommendation directed the AGD to respond to outstanding recommendations of the Law Council not addressed in the majority report. On 24 April 2024, the AGD provided a response that addresses the key points raised by the Law Council. In each instance, the AGD has undertaken to provide advice to Government in relation to our recommendations.

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