Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 122 (26 June 2024)

• Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024173
• Reversal of the evidential burden of proof174
• Attorney-General’s response177
• Committee comment

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Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024^[173]

Purpose	The bill seeks to amend the Crimes Act 1914 to implement trauma-informed measures that better support vulnerable persons when appearing as complainants and/or witnesses in Commonwealth criminal proceedings, whilst maintaining appropriate criminal procedure safeguards. The bill seeks to implement particular recommendations of the 2017 Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).
Portfolio	Attorney-General
Introduced	House of Representatives on 7 February 2024
Bill status	Before the Senate

Reversal of the evidential burden of proof^[174]

2.39 Item 55 of Schedule 1 to the bill substitutes existing subsection 15YR(2) of the Crimes Act 1914 (Crimes Act). Subsection 15YR(1) of the Crimes Act provides that a person commits an offence if they publish any matter which identifies a vulnerable person in relation to a proceeding as being a child witness, child complainant or vulnerable adult complainant, or the matter is likely to lead to the vulnerable person being identified as such a person. The offence applies where the person did not have leave of the court to publish the matter and the person whom they identify is not a defendant in the proceeding.

2.40 Item 55 amends subsection 15YR(2) to add new offence-specific defences which provide that the offence in subsection 15YR(1) does not apply if:

• the publication is in an official publication in the course of, and for the purpose of, the proceeding (proposed 15YR(2)(a)); or

• the publication is in a document prepared for use in particular legal proceedings (proposed paragraph 15YR(2)(b)); or

• the vulnerable person is deceased (proposed paragraph 15YR(2)(c)); or

• for an adult vulnerable person, if they have given informed consent to the publication in accordance with subsection 15YR(2A), the publication is in accordance with limits set by the vulnerable person, and the person had capacity to consent at the time (proposed paragraph 15YR(2)(d)); or

• for a child vulnerable person, if they have given informed consent for the publication, the publication is in accordance with any limits set by the vulnerable person, and the consent was accompanied by a supporting statement in accordance with subsection (2B) (proposed paragraph 15YR(2)(e)).

2.41 A note to proposed subsection 15YR(2) confirms that the evidential burden of proof is reversed in relation to these defences.

2.42 Proposed subsection 15YR(2A) provides that a vulnerable person gives informed consent for the purposes of the defence in proposed paragraph 15YR(2)(c) if the person who gives consent understands the options available and the consequences of giving consent. Proposed subsection 15YR(2B) sets out what is classified as a supporting statement for the defence in proposed subsection 15YR(2)(e) which involves, amongst other requirements, that the statement is in writing by a medical practitioner or psychologist (including their name and qualifications).

2.43 The committee had previously requested the Attorney-General’s advice in relation to proposed paragraph 15YR(2)(a) to (e) in Scrutiny Digest 3 of 2024 regarding:

• whether the reversed evidential burden defences were justified with reference to the Guide to Framing Commonwealth Offences; and

• whether the bill could be amended to remove the reversed evidential burdens by, for example, inserting the defences as elements to the offence.^[175]

2.44 In a letter to the committee dated 23 March 2024, the Attorney-General responded to the committee’s questions from Scrutiny Digest 3 of 2024 advising that the offence-specific defences had been deliberately framed to ensure lawful publication required consideration by the publisher of the information on whether an exemption to the general prohibition applied.

2.45 The Attorney-General further advised that each defence in subsection 15YR(2) fell within circumstances that the Guide to Framing Commonwealth Offences considered may be appropriate for an offence-specific defence to apply.

2.46 The Attorney-General proceeded to explain the rationale supporting the defences in proposed subsections 15YR(1) and 15YR(2)(a) to (e):

• for defences in 15YR(2)(a) and 15YR(2)(b) the Attorney-General advised that these are existing defences to the offence in subsection 15YR(1) and recognise that vulnerable person may be identified in documents either in that legal proceeding, or in other legal proceedings. Demonstrating that these documents were prepared for an authorised purpose is something that a defendant would have particular knowledge of and would be in a position superior to the prosecution to prove. This is further bolstered in that in the preparation of documents in relation to legal proceedings, legal professional privilege would likely present a significant barrier to the prosecution’s ability to satisfy the element beyond reasonable doubt. By contrast, a defendant would be well placed to discharge an evidential burden without infringing privilege.

• for paragraph 15YR(2)(c), which provides a defence where the vulnerable person is identified as deceased, the Attorney-General advised that the defence recognises that publishing identifying material of a person who is deceased does not raise the same issues of re-traumatisation of the vulnerable person, and that there are legitimate public interest reasons why persons may wish to publish that information. The defence is offence-specific as there is an expectation that this would be a central consideration in a decision to publish identifying information by the publishing person, and that that material fact is something that the defendant could easily adduce.

• for paragraphs 15YR(2)(d) and 15YR(2)(e), the Attorney-General advised that these require the publishing person to obtain the consent of the vulnerable person, and that the publication must be in accordance with the consent provided. The defence recognises strong public interest in allowing third parties (such as media outlets) to publish identifying information about vulnerable persons, but that this should only occur with that person’s consent. As such, it is considered appropriate for this to be an offence-specific defence as obtaining consent is an active action of the defendant and is something of which they would have a particular knowledge.

2.47 The committee responded in Scrutiny Digest 6 of 2024, noting the following:

• Regarding paragraphs 15YR(2)(d) and 15YR(2)(e), that it is not clear to the committee that the knowledge of this consent would be peculiarly within the defendant’s knowledge, while noting the strong public interest factors present in requiring the defendant to obtain this consent and being able to provide evidence of it.

• Regarding paragraph 15YR(2)(c), it was not apparent to the committee that the justification provided for the defence accorded with the requirements of the Guide to Framing Commonwealth Offences. The committee acknowledged the policy intention of requiring a publisher to have active knowledge of a vulnerable person’s death prior to publishing any identifying information, but set out its view that knowledge of whether a person is alive or deceased would not be peculiarly within the defendant’s knowledge in this instance.

• Finally, regarding proposed paragraphs 15YR(2)(a) and 15YR(2)(b), the committee remained unclear on how the provisions would operate in practice and, as such, found it difficult to reach a conclusion as to whether they unduly trespass on personal rights and liberties. Although the committee noted the potential necessity for a vulnerable person to be identified in documents in legal proceedings, it remained unclear to the committee how the cause for such identification could be peculiarly within one person’s knowledge. The committee noted its current understanding that the use of a document identifying a vulnerable person in a legal proceeding alone would indicate the nature of its purpose.

2.48 As such, the committee requested the Attorney-General’s further advice for examples of when defences provided by proposed paragraphs 15YR(2)(a) to (b) may be used, how they are intended to operate, and how the examples illustrate the appropriateness of the matters being constructed as offence-specific defence with reference to the Guide to Framing Commonwealth Offences.

2.49 The committee, in relation to proposed paragraph 15YR(2)(c), drew the matter to the attention of senators and left to the matter to the Senate as a whole regarding the appropriateness of reversing the evidential burden of proof under proposed subsection 15YR(1).

2.50 Finally, the committee requested that an addendum to the explanatory memorandum containing the key information provided by the Attorney-General in relation to proposed paragraphs 15YR(2)(c) to (e) be tabled in the Parliament as soon as practicable.^[176]

Attorney-General’s response^[177]

2.51 The Attorney-General advised the committee that proposed paragraphs 15YR(2)(a) and (b) are measures which were introduced by the Measures to Combat Serious and Organised Crime Act 2001. These paragraphs are being repealed and replaced to reflect the updated structures of section 15YR(2), however, the Attorney-General noted that the bill does not change their current operation under the Crimes Act.

2.52 The Attorney-General stated that it is intended that proposed paragraphs 15YR(2)(a) and 15YR(2)(b) operate together to ensure that there is complete coverage for the court when making official publications, and for parties in conducting matters. The Attorney-General made note of their earlier comments to the committee in relation to proposed paragraph 15YR(2)(a).

2.53 The Attorney-General advised that paragraphs 15YR(2)(a) and 15YR(2)(b) are intended to operate together to ensure complete coverage for the court when making official publications.

2.54 The Attorney-General also further advised on the intended uses of the terms ‘official publication’ and ‘official document’. While the term ‘official publication’ is not defined, this is to ensure flexibility that official publications legitimately prepared for publications by the court or parties to the matter are captured by the defence in paragraph 15YR(2)(a). The Attorney-General concluded by noting that whether a document is an ‘official document’ will be determined by the particular facts of the matter.

Committee comment

2.55 The committee thanks the Attorney-General for this advice.

2.56 The committee notes the Attorney-General’s advice that paragraphs 15YR(2)(a) and 15YR(2)(b) are intended to operate together to ensure complete coverage for the court in making official publications and to apply to publications that do not fall within the remit of the defence in paragraph 15YR(2)(b).

2.57 However, it remains unclear to the committee how, in accordance with the Guide to Framing Commonwealth Offences^[178], the defences under paragraphs 15YR(2)(a) and 15YR(2)(b) require the defendant to provide evidence that is in relation to information which is peculiarly within the defendant’s knowledge and is significantly more difficult or costly for the prosecution to obtain. The committee understands that reasons for an official publication of a court or the publication of an official document can be inferred from the nature of the publication it itself.

2.58 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the defences in proposed paragraphs 15YR(2)(a) and 15YR(2)(b).

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^[173] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 122.

^[174] Schedule 1, item 55, proposed subsection 15YR(2) of the Crimes Act 1914. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[175] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2024 (28 February 2024) pp. 29–32.

^[176] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2024 (15 May 2024) pp. 81–84.

^[177] The minister responded to the committee’s comments in a letter dated 3 June 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

^[178] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, May 2024, p. 40.