Combatting Child Sexual Exploitation Legislation Amendment Bill 2019
The submission to the Senate Legal and Constitutional Affairs Legislation Committee’s (the Committee) inquiry into the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (the Bill) was prepared by the Law Council.
The Law Council welcomes the Bill as an important part of implementing recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).
The Law Council acknowledges that it is critical that survivors of sexual abuse are able to seek and obtain a criminal justice response to child sexual abuse. It is also vital that the criminal justice response adheres to fundamental rule of law and criminal justice principles. The Law Council’s submission is based on these principles.
On 18 March 2019, the Law Council wrote to the then Chair of the Committee in relation the previous version of the Bill, which lapsed when Parliament dissolved on 11 April 2019 (the lapsed Bill). In that earlier submission, the Law Council provided a number of comments on the proposed measures in the lapsed Bill, most of which are again set out in this submission, albeit updated to reflect changes in the current version of the Bill.
The Law Council makes the following key recommendations aimed at the improvement of the Bill:
- The proposed possession offences for both child abuse material and a child-like sex doll should be able to be prosecuted summarily with the consent of the prosecutor and the defendant.
- The maximum penalty for the offences should be reduced from 15 to 10 years imprisonment.
- Proposed paragraph 273A.1 should be amended to require that there be proof of subjective knowledge by the offender of the sexual nature of the child-like doll or other sex object.
- Proposed sections 273B.4(1)(d) and 273B.5(1)(d) should be amended so that the prosecution are required to prove the that the accused knew the facts which would amount to a child sexual abuse offence.
- In the absence of justification, proposed paragraph 273B.5(1)(b) should require that the child be under the ‘care, supervision or authority’ in the defendant’s capacity as a Commonwealth officer.
- A derivative use immunity should be inserted at proposed section 273B.9 to cover material obtained as a result of answers given in accordance with questioning under proposed subsection 273B.5(5).
- The Bill be amended to clearly state that it is not an offence under the relevant provisions for a lawyer to fail to disclose information the subject of legal professional privilege.
- The offence specific defences listed in proposed subsection 273B.5(4) be amended so that the matters listed in paragraphs (a) to (d) be included as elements of the relevant offences.
You can read the full submission below.