The Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024, recently introduced in the Australian Parliament, aims to bolster protections for victims and survivors of child sexual abuse and vulnerable persons in Commonwealth criminal proceedings. This legislation has the potential to significantly improve the experiences of vulnerable witnesses and victim-survivors engaging with the criminal justice system, while also raising important considerations regarding its practical implementation and interaction with existing State and Territory laws.
Key Measures and Their Potential Impact
One of the most notable aspects of the bill is the expansion of circumstances in which vulnerable people involved in court proceedings as complainants or witnesses are afforded enhanced protections. This includes making evidence about sexual reputation inadmissible for all victims and survivors of child sexual abuse and placing greater restrictions on evidence relating to a person’s sexual experience. By limiting the admissibility of such evidence, the bill seeks to reduce the potential for re-traumatisation and encourage more potential complainants to come forward and participate in the criminal justice process.
The introduction of pre-recording of evidence hearings is another significant measure proposed in the bill. This allows for the pre-recording of a vulnerable person’s evidence, which can then be used in subsequent trials and retrials. By minimising the need for vulnerable witnesses to repeatedly provide testimony, this reform aims to address barriers that may deter people from giving evidence.
The bill further clarifies that complainants may publish self-identifying information or give informed consent to a third party, such as a media organisation, to publish that information.
Balancing Protections with Fair Trial Rights
While the enhanced protections for vulnerable witnesses are generally welcomed, it is crucial to ensure that these reforms are balanced against the crucial and fundamental right to a fair trial. As Greg McIntyre SC, president of the Law Council of Australia, notes, an accused must still be able to test the evidence against them. The bill’s expansion of protections applies to a specific list of offences, including crimes against humanity, war crimes, and drug offences involving children, which tend to help maintain this balance.
The provision allowing courts to order pre-recorded evidence hearings for vulnerable persons, if satisfied that it is in the interests of justice to do so. This aligns with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. However, the practical implementation of this measure will require careful consideration to ensure that procedural fairness is maintained for all parties involved.
Interaction with State and Territory Laws
One potential limitation of the bill’s impact is that it only applies to Commonwealth sexual violence offences, while the vast majority of sexual crimes fall within the legislation of individual States or Territories. For example, some of the protections proposed in the bill, such as recording complainant evidence for later use in trials, are already in place in some states like New South Wales.
However, the bill does introduce changes that go beyond some current State legislation. For example, it restricts evidence of a complainant’s prior sexual experience only to activities with the defendant, which is narrower than most current State provisions. The bill also allows for the pre-recording of adult complainant evidence, representing a significant shift in how criminal trials have traditionally operated.
The interaction between the proposed Commonwealth provisions and existing State and Territory laws will require careful navigations to ensure consistency and avoid unintended consequences. Obviously, the importance of clarifying how these provisions will work together, particularly in cases involving both Commonwealth and State or Territory offences, cannot be understated.
Looking forward
As the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 progresses through the legislative process, it will be essential to closely monitor its potential impacts and address any concerns raised by stakeholders. The bill’s passage through the committee review process will provide an opportunity for further scrutiny and refinement to ensure that it achieves the intended objectives whilst upholding the principles of a fair and just criminal justice system.
If you would like to know more about the proposed legislation, talk to one of the team at Jones + Associates today.