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Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
The Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 amends the Crimes Act 1958, the Confiscation Act 1997, the Summary Offences Act 1966, the Jury Directions Act 2015, the Criminal Procedure Act 2009, the Evidence (Miscellaneous Provisions) Act 1958 and several other Acts to implement thirteen recommendations made by the Victorian Law Reform Commission (VLRC) arising out of its 2021 report Improving the Justice System Response to Sexual Offences (VLRC Report).
The Bill also amends the Criminal Procedure Act 2009, the Court Security Act 1980 and the Open Courts Act 2013 to introduce, or temporarily continue, measures to enhance court efficiency.
Clause Notes
Part 1—Preliminary
Clause 1 sets out the main purposes of the Bill, which are—
• to amend the Crimes Act 1958 in relation to consent and sexual offences; and
• to insert image-based sexual offences into the Crimes Act 1958 and—
• to amend the Confiscation Act 1997 to provide for disposal orders in respect of intimate images; and
• to remove related image-based sexual offences from the Summary Offences Act 1966; and
591338 BILL LA INTRODUCTION 3/8/2022
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• to amend the Jury Directions Act 2015—
• to make further provision for directions in sexual offence trials; and
• to require a trial judge to explain the phrase "proof beyond reasonable doubt" to the jury; and
• to make miscellaneous amendments to the Criminal Procedure Act 2009, including in relation to—
• what sexual offences an accused person may be charged with, and found guilty of, if there is uncertainty about the time at which the offence was committed and there was a change in the relevant law around that time; and
• the cross-examination of witnesses in committal proceedings; and
• ground rules hearings; and
• outdated references to chastity; and
• the transfer of proceedings for summary offences between the Supreme Court and the County Court; and
• explanations of the meaning of the phrase "proof beyond reasonable doubt" in a general jury guide; and
• to amend Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958—
• to provide that the protections that Division affords in relation to confidential communications are extended, in criminal proceedings, to certain health information; and
• to modify the procedures applying under that Division, including to give protected persons a right to make submissions about the disclosure of a confidential communication or protected health information; and
• to extend the operation of certain temporary provisions in the Court Security Act 1980 and the Open Courts Act 2013.
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Clause 2 is the commencement provision of the Bill.
Subclause (1) provides that the Bill (other than Parts 2, 3, 4 and 6, Divisions 1, 2, 4 and 8 of Part 5, and sections 91, 93 and 94) comes into operation on the day after the day on which the Bill receives the Royal Assent.
Subclause (2) provides that section 3(2) in Division 1 of Part 2 of the Bill comes into operation on the day after the day on which the Bill receives the Royal Assent.
Subclause (3) provides that Division 1 of Part 5 of the Bill comes into operation on 1 January 2023.
Subclause (4) provides that the remaining provisions of the Bill come into operation on a day or days to be proclaimed, subject to subclauses (5) and (6).
Subclause (5) provides that, if a provision referred to in subclause (4) (other than section 91 or 94 or a provision of Part 4 or Division 8 of Part 5) does not come into operation before 30 July 2023, it comes into operation on that day.
Subclause (6) provides that, if section 91 or 94 or a provision of Part 4 or Division 8 of Part 5 of this Act does not come into operation before 1 January 2023, it comes into operation on that day.
Part 2—Consent Part 2 amends the Crimes Act 1958, in addition to a number of other Acts, to implement recommendations 50 and 51 of the VLRC Report. Those recommendations relate to strengthening the definition of consent to reflect concepts of the affirmative consent model; requiring a person to take steps to find out if there is consent for them to have a reasonable belief in consent; and making it clear that non-consensual removal, non-use or disruption (or tampering) of a condom without consent is a consent-vitiating circumstance. The Bill implements those recommendations by making clear what consent is (by the amended definition of consent and inclusion of circumstances where consent cannot be assumed); clarifying what consent is not (by drawing attention to the expanded, non-exhaustive list of circumstances in which a person does not give consent); and requiring that for a person to have a reasonable belief in consent, they must say or do something to find out if there is consent.
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Division 1—Amendment of the Crimes Act 1958
Subdivision 1—Preliminary amendment regarding not using, removing or tampering with condom
Clause 3 inserts an additional circumstance in which a person does not consent to an act into the non-exhaustive list in section 36(2) of the Crimes Act 1958.
Subclause (1) provides that the person does not consent to an act where they engage in the act on the basis that a condom is used and, before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or the person who was to use the condom intentionally does not use it. This is explained further in clause 5.
Subclause (2) is a repeal provision. It provides that if clause 5 of this Bill comes into operation before clause 3(1), clause 3(1) is repealed on the day on which clause 5 comes into operation. This is intended to enable this amendment to commence earlier than the rest of Part 2, which is discussed in further detail below in relation to clause 5.
Subdivision 2—General amendments regarding definition of consent
Clause 4 substitutes the definition of consent in section 35(1) of the Crimes Act 1958 for the purposes of this Subdivision and Subdivisions (8A) to (8E). Instead of referring to section 36, the definition now refers to sections 36 and 36AA.
Clause 5 substitutes section 36 and inserts new section 36AA into the Crimes Act 1958. The intended effect is to make it clear what consent is, by the definition and by the circumstances where consent cannot be assumed; and when consent cannot be given, by providing a non-exhaustive list of circumstances in which a person does not give consent.
Substituted section 36—Consent
New section 36(1) clarifies that consent means free and voluntary agreement. The word "voluntary" makes clear that agreement cannot be obtained through coercion, threats or other inappropriate means, and will reinforce that involuntary bodily reactions are not an indication of consent.
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New section 36(1) includes a legislative note. The note provides that interpreting and applying the definition of consent, the court must have regard to sections 37A and 37B, which set out the objectives of Subdivisions (8A) to (8G) and the guiding principles. The definition of consent in section 35, as amended by clause 4, also includes both new section 36 and new section 36AA.
New section 36(2) provides that a person does not consent to an act just because they do not resist the act verbally or physically. This includes in situations where a person may freeze.
New section 36(3) provides that a person does not consent to an act just because they consented to—
• a different act with the same person; or
• the same act with the same person at a different time or place; or
• the same act with a different person; or
• a different act with a different person.
These provisions further qualify the definition of consent by describing circumstances where consent cannot be assumed and making clear that consent should not be assumed based on past sexual encounters. They elevate issues that may currently be addressed by jury directions (currently through section 46 of the Jury Directions Act 2015, or new sections 47E and 47F as introduced by clause 46) into the definition of consent.
New section 36AA—Circumstances in which a person does not consent
New section 36AA provides a non-exhaustive list of circumstances where a person does not consent to an act. It replicates much of the list currently located in section 36(2) of the Crimes Act 1958, with some re-ordering, and introduces new circumstances to give clearer recognition to the different ways that a person does not consent to a sexual act.
Not all circumstances listed in new section 36AA will be relevant in every trial. Section 46 of the Jury Directions Act 2015 provides that the prosecution or defence counsel may request that the trial judge inform the jury of the relevant circumstances in which a person is taken not to have consented to an act. Whether or not a direction is required, and the relevant circumstances to
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include in the direction, should be considered as part of the request process under Part 3 (Request for directions) of the Jury Directions Act 2015.
New section 36AA(1)(a) provides that a person does not consent to an act in circumstances where the person does not say or do anything to indicate consent to the act. It replicates current section 36(2)(l) of the Crimes Act 1958.
New section 36AA(1)(b) provides that a person does not consent to an act in circumstances where that person submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal. This is regardless of—
• when the force, harm or the conduct giving rise to the fear occurs; and
• whether it is, or is a result of, a single incident or is part of an ongoing pattern.
This circumstance encapsulates what is currently contained in new section 36(2)(a) and 36(2)(b) of the Crimes Act 1958, with the addition of "harm". The consolidated circumstance is intended to clarify the different types of harm that may be inflicted on a person, when and how the harm may occur, and that harm is not limited to physical harm.
A list of examples is provided to assist with understanding the intended breadth of this provision. A type of harm could include economic or financial harm; reputational harm; harm to the person's family, cultural or community relationships; harm to the person's employment; family violence involving psychological abuse or harm to mental health; or sexual harassment. As this list is non-exhaustive, other types of harm could still be relied on in prosecutions—including, for example, a threat to a person's visa or migration status which may cause a fear of harm.
New section 36AA(b)(i) clarifies that the conduct does not need to occur at the time of, or immediately before, the act—it can happen at any time, provided the person's submission to the act, at the time of the act, is because of the force, harm or fear of force or harm. For example, a person may submit because of a threat of harm made at the time of the act, or because the other person has previously harmed them and they are afraid that they will be subjected to harm again if they do not submit.
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New section 36AA(1)(b)(ii) provides that the force, harm or conduct giving rise to fear can be a single incident or part of an ongoing pattern of behaviour. An ongoing pattern may consist of incidents which, on their own, may not have resulted in, or constituted, a reason for submission.
New section 36AA(1)(c) provides that a person does not consent to an act in circumstances where the person submits to the act because of coercion or intimidation, regardless of when the coercion or intimidation occurs; and whether it is, or is a result of, a single incident or is part of an ongoing pattern. The provision is intended to capture conduct such as coercive controlling behaviour commonly experienced in family violence circumstances, as well as emotional manipulation and social pressuring which causes the person to submit to the sexual act.
New section 36AA(1)(d) provides that a person does not consent to an act in circumstances where the person submits to the act because the person is unlawfully detained. It replicates current section 36(2)(c) of the Crimes Act 1958.
New section 36AA(1)(e) provides that a person does not consent to an act where the person submits to the act because they are overborne by the abuse of a relationship of authority or trust. This new circumstance is based on a similar circumstance in NSW.
"Abuse" and "overborne" are not defined. However, these terms provide the necessary parameters for when this circumstance can establish that a person did not, in law, consent to a sexual act. The circumstance would not cover all situations in which a position of authority or trust is abused. It is intended that the circumstance will apply where the abuse of the relationship of authority or trust is such that a person is unable to give their free and voluntary agreement.
A relationship of authority generally exists where a person has the right (legal or otherwise) to direct or control the other person's actions. A relationship of trust goes beyond any ordinary relationship where trust may be present, to capture relationships involving an obligation of care and protection. Relationships of trust could also extend to cultural or religious relationships such as a kinship relationships in First Nations cultures.
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New section 36AA(1)(f) provides that a person does not consent to an act in circumstances where the person is asleep or unconscious. It replicates current section 36(2)(d) of the Crimes Act 1958.
New section 36AA(1)(g) provides that a person does not consent to an act in circumstances where the person is so affected by alcohol or another drug as to be incapable of consenting to the act. It replicates current section 36(2)(e) of the Crimes Act 1958.
New section 36AA(1)(h) provides that a person does not consent to an act in circumstances where the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act. It replicates current section 36(2)(f) of the Crimes Act 1958, including the note confirming that this circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.
New section 36AA(1)(i) provides that a person does not consent to an act in circumstances where the person is incapable of understanding the sexual nature of the act. It replicates current section 36(2)(g) of the Crimes Act 1958.
New section 36AA(1)(j) provides that a person does not consent to an act in circumstances where the person is mistaken about the sexual nature of the act. It replicates current section 36(2)(h) of the Crimes Act 1958.
New section 36AA(1)(k) provides that a person does not consent to an act in circumstances where the person is mistaken about the identity of any other person involved in the act. It replicates current section 36(2)(i) of the Crimes Act 1958.
New section 36AA(1)(l) provides that a person does not consent to an act in circumstances where the person mistakenly believes that the act is for medical or hygienic purposes. It replicates current section 36(2)(j) of the Crimes Act 1958.
New section 36AA(1)(m) provides that a person does not consent to an act in circumstances where the act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid. This is a new circumstance.
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New section 36AA(3) provides that commercial sexual services has the same meaning as it has in section 53A of the Crimes Act 1958 and new section 36AA(2) provides that a false or misleading representation may be made by words or conduct (including by omission), and may be explicit or implicit.
Whether a representation was false or misleading will depend on the circumstances and may include considering the actions of the accused person before or after the act, provided the representation was made before the act. "Paid" is not defined, but could include a monetary or non-monetary payment. Partial payment is not intended to satisfy the requirement to make payment unless it was agreed upon by both parties.
New section 36AA(1)(n) provides that a person does not consent to an act in circumstances where, if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes. It replicates current section 36(2)(k) of the Crimes Act 1958.
New section 36AA(1)(o) provides that a person does not consent to an act in circumstances where the person engages in the act on the basis that a condom is used and either before or during the act, any other person involved in the act intentionally removes the condom or tampers with the condom; or the person who was to use the condom intentionally does not use it.
The "basis" of condom use—that is, the agreement to the act being predicated on condom use—may be implied or explicit depending on the circumstances. "Condom" is intended to include both external and internal condoms. "Tampering" is to be given its ordinary meaning, being interference that produces some change. The non-use, removal or tampering of a condom must be intentional.
New section 36AA(1)(o)(i) recognises that any other person involved in the sexual act can remove or tamper with a condom, not just the wearer of the condom. The wearer of the condom may be the person who engages in the act only on the basis that a condom is used and another participant (for example, the person being penetrated or another person who is engaged in the sexual act) can remove or tamper with the condom.
New section 36AA(1)(p) provides that a person does not consent to an act in circumstances where, having given consent to the act, the person later withdraws consent to the act taking place or
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continuing. It replicates current section 36(2)(m) of the Crimes Act 1958.
As noted above, new section 36AA(2) provides that for the purposes of new section 36AA(1)(m), a false or misleading representation may be made by words or conduct, including by omission, and may be explicit or implicit.
As noted above, new section 36AA(3) provides that in new section 36AA(1)(m), commercial sexual services has the same meaning as it has in section 53A. New section 36AA(3) will be repealed when section 39A of the Sex Work Decriminalisation Act 2022, to be inserted by clause 19 of this Bill, commences. The Sex Work Decriminalisation Act 2022 will repeal section 53A and introduce a definition of commercial sexual services into section 35 of the Crimes Act 1958. That definition will apply to the circumstance in new section 36AA(l)(m) instead.
Clause 6 amends section 37A of the Crimes Act 1958, which provides for the objectives of Subdivisions (8A) to (8G).
Subclause (1) is a technical amendment, which updates the heading of section 37A to replace "8A to 8G" with "(8A) to (8G)".
Subclause (2)(a) amends section 37A(a) to use "their" instead of "him or her". This language update avoids the use of binary gender terms.
Subclause (2)(b) amends section 37A(a) to use "choose whether or not" instead of "choose not". This language update reflects that a person has a right to choose to engage in sexual activity, as well as a right to choose not to engage in sexual activity. This better reflects the concept of sexual autonomy.
Subclause (3) inserts a new objective in new section 37A(ab), which is to promote the principle that consent to an act is not to be assumed—that consent involves ongoing and mutual communication and decision-making between each person involved. Each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent. The new objective is intended to reinforce that consent cannot be assumed and can only be based on a person's communication of consent (both verbal and non-verbal). As consent is not a static concept, communication should be ongoing throughout the act.
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Subdivision 3—Reasonable belief in consent
Clause 7 inserts the definitions of cognitive impairment and mental illness into section 35(1) of the Crimes Act 1958.
Cognitive impairment is given the same meaning as in Subdivision (8E) of the Crimes Act 1958. It includes impairment because of intellectual disability, dementia, neurological disorder or brain injury. Mental illness is given the same meaning as in the Mental Health Act 2014 (through its definition in section 52A of the Crimes Act 1958). Subject to section 4(2) of the Mental Health Act 2014, mental illness means a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
These terms are used in new section 36A (to be inserted by clause 8) and new section 42(3C) (to be inserted by clause 10), in relation to the exception to the requirement for one person to say or do anything to find out if another person consents.
Clause 8 substitutes existing section 36A with a new section 36A that amends reasonable belief in consent to reflect an affirmative consent model. The provision implements recommendation 50(a) of the VLRC Report to formulate a requirement for a person to "take steps" to find out if the other person consents for their belief in consent to be reasonable.
New section 36A(1) provides that whether or not a person (A) reasonably believes that another person (B) is consenting to an act depends on the circumstances. This replicates the existing provision but makes clear this refers to A's belief in B's consent. The provision continues to allow for consideration of all circumstances in determining whether A's belief in consent is reasonable.
A new note is inserted to refer to section 36B of the Crimes Act 1958 for the effect of intoxication on the standard to be applied in determining whether a person has a reasonable belief. This section provides that self-induced intoxication cannot be taken into account in assessing reasonableness, but non-self-induced intoxication can.
New section 36A(2) provides that A's belief that B consents to an act is not reasonable if, reasonably before or at the time the act takes place, A does not say or do anything to find out whether B consents to the act. This requires A to have taken active steps to
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find out whether B consented to the sexual act for their belief in consent to be reasonable. This may include taking a verbal or non-verbal step to ascertain consent but would not include an internal thought process, which is inconsistent with a communicative model of consent.
New section 36A(2) provides that A must say or do anything to find out if B consents "within a reasonable time before or at the time". What is a "reasonable time before" the sexual act depends on the circumstances. In most circumstances, it will only be a reasonable time if A said or did anything at the time of the sexual act or immediately before it. However, the provision recognises that there may be limited circumstances where it is reasonable to do or say something to ascertain consent at an earlier time, so long as the circumstances have not changed when the sexual act occurs.
New section 36A(3) provides an exception to the requirement in new section 36A(2) for A to say or do anything to find out if B consents if—
• A has a cognitive impairment or mental illness (other than the effects of intoxication that is self-induced within the meaning of section 36B of the Crimes Act 1958); and
• that cognitive impairment or mental illness is a substantial cause of A not saying or doing anything to find out whether B consents to the act.
The exception to the requirement in new section 36A(2) ensures that a particular cohort of people—those with cognitive impairment or mental illness—are not unfairly disadvantaged by the new requirement to say or do anything for a reasonable belief in consent. However, even where the exception is established by A, the prosecution would still be able argue that A did not have a reasonable belief in B's consent in the circumstances. The exception simply carves out this cohort of people from the requirement to say or do anything.
New section 36A(3)(a) makes clear that the effects of self-induced intoxication on a person, within the meaning of section 36B, cannot be relied on for these purposes.
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New section 36A(4) provides that A bears the burden of proving, on the balance of probabilities, that they have a cognitive impairment or mental illness, and that it is a substantial cause of them not saying or doing anything to find out whether B is consenting. This imposes a legal burden on A. A legal burden is appropriate in the circumstances because information about A's illness or impairment, and the nexus between this condition and A's conduct, may fairly be regarded as peculiarly within A's knowledge.
Clause 9 amends the heading of section 36B of the Crimes Act 1958 to insert "standard to be applied in determining" after "on" so that the title reads "Effect of intoxication on standard to be applied in determining reasonable belief". This better reflects the purpose of section 36B as it applies to consideration of reasonable belief.
Clause 10 amends section 42 of the Crimes Act 1958 to align with the amendments to section 36A and provide clarification that A's belief in consent depends on the circumstances but it is not reasonable if they have not said or done anything to find out if person B would consent to the sexual act. The same exception to this requirement for people with a cognitive impairment or mental illness applies. There is no timing requirement as the sexual act has not occurred and therefore A could not have said or done anything a reasonable time before or at the time of the act.
Subdivision 4—Miscellaneous amendments Subdivision 4 makes consequential amendments to the Crimes Act 1958 to reflect that clause 5 will split the definition of consent into sections 36 and 36AA. Where sections 36 or 36(2) are referred to in other sections, the references have been updated to reflect the new section numbers.
Clause 11 amends section 35(1) and (3) of the Crimes Act 1958 to insert "this Subdivision and" before "Subdivisions (8A) to (8FA)".
Clause 12 substitutes "section 36AA" for "section 36(2)" in note 2 at the foot of section 50H of the Crimes Act 1958.
Clause 13 substitutes "sections 36 and 36AA" for "section 36" in note 3 at the foot of section 51Q of the Crimes Act 1958.
Clause 14 substitutes "sections 36 and 36AA" for "section 36" in note 3 at the foot of section 51R of the Crimes Act 1958.
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Division 2—Amendment of Jury Directions Act 2015 Division 2 makes consequential amendments to the Jury Directions Act 2015 to reflect the amendments in Division 1.
Clause 15 amends section 46 of the Jury Directions Act 2015, which provides for directions on consent.
Subclause (1) substitutes the note at the foot of section 46(2) of the Jury Directions Act 2015, to reflect the amended definition of consent as free and voluntary agreement.
Subclauses (2) and (3) update section references in section 46(4) of the Jury Directions Act 2015, to reflect that clause 5 will split the definition of consent into sections 36 and 36AA of the Crimes Act 1958. Section 46(4) of the Jury Directions Act 2015 provides that the prosecution or defence counsel may request, under Part 3 of the Jury Directions Act 2015, that the trial judge inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or direct the jury that if it is satisfied beyond reasonable doubt that one of those circumstances existed in relation to a person, the jury must find that the person did not consent to the act.
Clause 16 amends section 47(3)(a) of the Jury Directions Act 2015 to reflect that the list of circumstances that do not constitute consent will now be located in section 36AA of the Crimes Act 1958. Section 47(3)(a) of the Jury Directions Act 2015 provides that the prosecution or defence counsel may request, under Part 3 of the Jury Directions Act 2015, that the trial judge direct the jury that if the jury concludes that the accused knew or believed that one of those circumstances existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act.
Division 3—Amendment of Sentencing Act 1991
Clause 17 makes a consequential amendment to the section 3(1) of the Sentencing Act 1991 to reflect the updated section numbering for the definition of "consent" in the Crimes Act 1958.
Clause 18 makes a consequential amendment to clause 1(a)(ivb) of Schedule 1 of the Sentencing Act 1991 to reflect the updated section numbering for the definition of consent in the Crimes Act 1958.
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Division 4—Amendment of Sex Work Decriminalisation Act 2022
Clause 19 inserts new section 39A in the Sex Work Decriminalisation Act 2022 to repeal section 36AA(3) of the Crimes Act 1958, which provides for the meaning of commercial sexual services in new section 36AA(1)(m). As explained in relation to clause 5, the Sex Work Decriminalisation Act 2022 will introduce a definition of commercial sexual services into section 35 of the Crimes Act 1958. That definition will apply to the circumstance in new section 36AA(l)(m) instead.
Part 3—Image-based sexual offences Part 3 amends the Crimes Act 1958 and Criminal Procedure Act 2009, in addition to a number of other Acts, to implement recommendations 52, 53 and 54a of the VLRC Report. Those recommendations relate to image-based sexual offending, which the VLRC found is a "growing problem that causes serious harm" and that Victoria's laws could better address (VLRC Report, chapter 14, p. 290). The Bill strengthens the justice system response to image-based sexual offending by, amongst other things, relocating key offences from the Summary Offences Act 1966 to the Crimes Act 1958 and making them indictable offences triable summarily. The Bill also broadens the definition of intimate image so that it is more inclusive and applies to images that have been altered. Procedural protections including those under Part 8.2 in Chapter 8 of the Criminal Procedure Act 2009 are extended to proceedings involving a charge for an intimate image offence. The Bill also introduces a disposal order scheme for intimate images in the Crimes Act 1958.
Division 1—Amendment of Crimes Act 1958
Clause 20 amends the definition section in Subdivision (8D) of the Crimes Act 1958 which relates to child abuse material.
Subclause (1) inserts a definition of distribute in section 51A(1) of the Crimes Act 1958 that reflects the information currently contained in section 51A(2)(b). This definition clarifies that distribute, in relation to material, includes—
• publishing the material; and
• exhibiting, communicating, sending, supplying or transmitting the material to any other person; and
• making the material available for access by any other person.
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Subclause (2) substitutes section 51A(2) to provide that, for the purposes of Subdivision (8D), an image may be still, moving, recorded or unrecorded. This replicates current section 51A(2)(a) but removes section 51A(2)(b), which has been subsumed into the definition of distribute in section 51A(1).
Clause 21 amends note 1 at the foot of section 51D of the Crimes Act 1958, containing the offence of distributing child abuse material. The amended note states that the meaning of distribute can be found in section 51A(1).
Clause 22 inserts new Subdivision (8FAAB) in Division 1 of Part I of the Crimes Act 1958 containing the offences of producing, distributing, or threatening to distribute intimate images. This acquits recommendation 52 of the VLRC Report which was to relocate several image-based sexual offences from the Summary Offences Act 1966 to the Crimes Act 1958.
New section 53O—Definitions
New section 53O defines several terms in new Subdivision (8FAAB).
The term distribute, in relation to an image, is defined as including—
• publishing the image; and
• exhibiting, communicating, sending, supplying or transmitting the image to any other person; and
• making the image available for access by any other person.
This is consistent with the definition of distribute that clause 20 of the Bill inserts in Subdivision (8D) of the Crimes Act 1958, in relation to child abuse material.
Electronic material is defined as including data from which images may be generated. An intimate image disposal order can be made in respect of this material under new section 53Z of the Crimes Act 1958.
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The term intimate image is defined to mean an image depicting—
• a person engaged in a sexual activity; or
• a person in a manner or context that is sexual; or
• the genital or anal region of a person (whether bare or covered by underwear); or
• if a person is female, or a transgender or intersex person identifying as female, the breasts of the person.
This definition is based on the meaning in the Summary Offences Act 1966 with an update to clarify that the term also includes images depicting the breasts of transgender and intersex people identifying as female. The terminology adopted in paragraph (d) of the definition is consistent with that used in other Australian jurisdictions (see section 72A of the Crimes Act 1900 (ACT), section 91N of the Crimes Act 1900 (NSW), section 208AA of the Criminal Code Act 1983 (NT), section 207A of the Criminal Code 1899 (QLD) and section 221BA of the Criminal Code Act Compilation Act 1913 (WA)). This responds to recommendation 52c of the VLRC Report, which was to amend the definition to apply to people of diverse genders.
The term produce, in relation to an image, is defined to mean—
• filming, recording, taking or otherwise capturing the image; or
• digitally creating the image.
This replicates several forms of production set out in section 51C of the Crimes Act 1958, relating to producing child abuse material. The broad definition includes capturing an image via a live transmission over the internet, commonly known as "live streaming". It also includes the production of "deepfake" or false images as it encompasses the act of digital creation.
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New section 53O(2) clarifies that, for the purposes of Subdivision (8FAAB), an image may be—
• still, moving, recorded or unrecorded; and
• digitally created by—
• generating the image; or
• altering or manipulating another image.
The effect of section 53O(2)(b) is that the term image, for the purposes of the offences in new sections 53R(1), 53S(1) and 53T(1) of the Crimes Act 1958, includes deepfake pornographic images. "Deepfake pornography" refers to images that have been digitally generated, altered or manipulated to appear to be intimate images of a person. For example, a person (A) may use software to alter a non-intimate image of another person (B) so that, after the alteration, the image appears to depict B naked. This implements VLRC Report recommendation 52c to apply the intimate image offences that had been relocated to the Crimes Act 1958 to altered intimate images.
Examples of other images that fall within the definition of image include photographs, video recordings and unrecorded live streams.
New section 53P—Meaning of consent
New section 53P provides for the meaning of consent for the purposes of Subdivision (8FAAB). The definition aligns, where relevant, with the new definition of consent contained in new section 36 of the Crimes Act 1958, as inserted by clause 5 of the Bill. There are some divergences in approach to ensure that this model of consent applies appropriately to the broad range of circumstances that can encompass image-based sexual offending.
New section 53P(1) defines consent, in relation to the production or distribution of an intimate image, as meaning free and voluntary agreement. This is consistent with the definition in section 36(1) of the Crimes Act 1958, as amended by clause 5 of the Bill, which applies to sexual offences in Subdivisions (8) to (8E).
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Consistent with the approach in new section 36(3) of the Crimes Act 1958, as inserted by clause 5 of the Bill, subsections (2) and (3) of new section 53P clarify that a person's consent to one action in relation to an intimate image does not, by itself, constitute consent to another action in relation to that image or another image.
Specifically, new section 53P(2) provides that a person does not consent to the production of an intimate image just because they consented to the production of a different intimate image, including an intimate image produced—
• on a different occasion; or
• in a different way.
An example is provided of a person consenting to a photograph of them being taken but not to a video being recorded. The effect of this provision is that evidence that a person consented to the production of one intimate image does not, by itself, prove that the person consented to the production of another intimate image. This is one factor to take into consideration in the overall assessment.
New section 53P(3) provides that a person does not consent to the distribution of an intimate image just because they—
• consented to the distribution of that intimate image—
• on a different occasion; or
• in a different way
• consented to the distribution of a different intimate image; or
• consented to the production of that intimate image or a different intimate image; or
• distributed that intimate image or a different intimate image; or
• in the case of distribution of an intimate image to a particular person, consented to the distribution of that intimate image to a different person.
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New section 53P(3) provides as an example that a person may consent to an intimate photograph being emailed to another person but not consent to the photograph being uploaded to a social media website. As another example, a person may consent to sending an intimate image of themselves to their boyfriend but not consent to their boyfriend sharing that image with another person.
New section 53Q—Circumstances in which a person does not consent
New section 53Q provides a non-exhaustive list of circumstances in which a person does not consent to the production or distribution of an intimate image. A comparable version of these circumstances is contained in new section 36AA of the Crimes Act 1958, as inserted by clause 5 of the Bill, which applies to the sexual offences in Subdivisions (8) to (8E). Section 53Q includes, but is not limited to, the circumstances that are most relevant to image-based sexual offending, namely, where—
• the person does not say or do anything to indicate consent to the production or distribution of the intimate image;
• the person agrees to the production or distribution of the intimate image due to force, a fear of force, harm of any type or a fear of harm of any type;
• the person agrees to the production or distribution of the intimate image because of coercion or intimidation;
• the person agrees to the production or distribution of the intimate image because the person is overborne by the abuse of a relationship of authority or trust;
• the person is asleep or unconscious;
• the person is so affected by alcohol or another drug as to be incapable of consenting to the production or distribution of the image;
• the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the production or distribution of the image.
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Examples of types of harm are provided at the foot of section 53Q(b) to clarify that it includes a variety of negative impacts that are not physical in nature.
New section 53R—Producing intimate image
New section 53R(1) introduces the offence of producing an intimate image to acquit VLRC Report recommendation 52a. A person (A) commits this offence if—
• A intentionally produces an image depicting another person (B); and
• the image is an intimate image; and
• A knows that the image is, or probably is, an intimate image; and
• the production of the intimate image is contrary to community standards of acceptable conduct.
This offence incorporates conduct that was previously criminalised by the offence of visually capturing genital or anal region in section 41B of the Summary Offences Act 1966, which clause 30 of the Bill repeals. It is broader than the previous offence because it applies to an intimate image as defined in new section 53O which includes images depicting a wider variety of things such as a person engaging in sexual activity. The new offence also applies to the production of deepfake or altered intimate images due to the definitions of produce in section 53O(1) and the meaning given to "image" in new section 53O(2).
Under new section 53R(1)(d), the production of an intimate image is an offence if it is "contrary to community standards of acceptable conduct". That term is defined in new section 53U. This differs from section 41B of the Summary Offences Act 1966 which criminalised an intentional "visual capturing" in circumstances in which it would be reasonable for the other person to expect that his or her genital or anal region could not be visually captured. However, where such circumstances exist, they are likely to satisfy new section 53R(1)(d). The new offence also extends to cases where the other person is aware that an intimate image is produced but the production is nevertheless contrary to community standards of acceptable conduct.
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2 examples are provided at the foot of section 53R(1) of conduct that may constitute an offence against that subsection. The first example involves the production of a live streamed intimate image from one of person A's devices to another of person A's devices. However, if the live stream had been distributed to other persons, this would constitute the separate offence of distributing intimate image contrary to new section 53S(1). The second example relates to the production of a "deepfake", or altered, intimate image.
The third example relates to when the production of an intimate image may not be an offence because it is not contrary to community standards of acceptable conduct. It concerns a doctor taking an intimate image of an unconscious patient to assist the doctor to perform a medical procedure.
New section 53R(2) provides that the maximum penalty for the offence of producing intimate image is 3 years' imprisonment. The same maximum penalty applies to the new offences in sections 53S(1) and 53T(1), relating to distributing and threatening to distribute an intimate image. The offence is indictable due to the operation of section 2B of the Crimes Act 1958 but may be heard and determined summarily pursuant to section 28(1)(b)(iii) of the Criminal Procedure Act 2009.
New section 53R(3) sets out an exception to the offence in new section 53R(1) for the consensual production of intimate images depicting adults. This is based on the exception to the distribution offence under section 41D of the Summary Offences Act 1966, which clause 31 of the Bill substitutes. The provision provides that person (A) does not commit an offence if—
• the person depicted in the intimate image is not a child; and
• at the time of the production of the intimate image, that person consented to—
• A producing the intimate image; and
• how the intimate image was produced.
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The term consent is defined in new section 53O. Children are further protected by the meaning given to "community standards of acceptable conduct" in new section 53U which states that circumstances including the age, intellectual capacity and vulnerability of the person depicted in the intimate image are relevant to whether the production or distribution of the image is, or would be, contrary to those standards.
The phrase "how the intimate image was produced" in section 53R(3)(b)(ii) includes—
• the method by which the intimate image was produced, for example, whether person B consented to a photo or video recording, or production via a certain application; and
• the purpose for which the intimate image was produced, for example, whether it was to be produced for medical purposes or for A's personal collection.
The note at the foot of section 53R references new section 53V and explains its effect, namely, that a mistaken but honest belief that the production of the intimate image is not contrary to community standards of acceptable conduct is not a defence to an offence against 53R(1).
New section 53S—Distributing intimate image
New section 53S(1) introduces the new offence of distributing intimate image. Under this section, a person (A) commits this offence if—
• A intentionally distributes an image depicting another person (B); and
• the image is an intimate image; and
• A knows that the image is, or probably is, an intimate image; and
• the distribution of the intimate image is contrary to community standards of acceptable conduct.
The terms distribute and intimate image are defined in new section 53O(1). "Image" has the meaning given by new section 53O(2). The phrase "contrary to community standards of acceptable conduct" has the meaning given by new section 53U.
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Section 53S(1) consolidates the offences of distribution of image of genital or anal region in existing section 41C of the Summary Offences Act 1966 and distribution of intimate image in existing section 41DA of the Summary Offences Act 1966, which are repealed by clauses 30 and 32 of the Bill respectively. Unlike section 41DA of the Summary Offences Act 1966, the new offence does not require person (A) to have distributed the image "to a person other than (B)". As a result, the offence also applies where A distributes the image to B (and not to a third party). This change recognises that distribution of an intimate image to the person depicted in the image is also capable of causing significant harm.
2 examples are provided at the bottom of section 53S(1) of conduct that may constitute an offence against that subsection. The third example is of a situation where distributing an intimate image may not be an offence because it is not contrary to community standards of acceptable conduct, namely, where a parent emails a photo of their naked newborn child to a family member or friend.
New section 53S(2) provides that the maximum penalty for this offence is 3 years' imprisonment. The same maximum penalty applies to the new offences in sections 53R(1) and 53T(1), relating to producing and threatening to distribute an intimate image. The offence is indictable due to the operation of section 2B of the Crimes Act 1958 but may be heard and determined summarily pursuant to section 28(1)(b)(iii) of the Criminal Procedure Act 2009.
New section 53S(3) provides an exception to the offence in new section 53S(1) for the consensual distribution of intimate images depicting adults. This is based on the exception to the distribution offence under section 41DA of the Summary Offences Act 1966. The provision states that a person (A) will not commit an offence against new section 53S(1) if—
• the person depicted in the intimate image is not a child; and
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• at the time of the distribution of the intimate image, they consented to—
• A distributing the intimate image; and
• how the intimate image was distributed.
The term consent is defined in new section 53O. The exception does not apply to the consent of children, consistent with the approach taken in section 41DA of the Summary Offences Act 1966 and to sexual offences more broadly. Children are further protected by the definition of community standards of acceptable conduct in new section 53U which states that circumstances including the age, intellectual capacity and vulnerability of the person depicted in the intimate image are relevant to whether the production or distribution of the image is, or would be, contrary to those standards.
The phrase "how the intimate image was distributed" in section 53S(3)(b)(ii) includes—
• the method by which the intimate image was distributed, for example, as a time-limited image sent using a social networking service, or by email; and
• the purpose for which the intimate image was distributed, for example, to be published in a magazine;
New section 53S(4) inserts a further exception to the offence of distributing intimate image that applies if—
• B is not a child; and
• the intimate image had been distributed previously in a place to which members of the public had access, irrespective of whether—
• that place was accessible on the Internet or not; and
• access was free or for a payment of a fee; and
• B consented, or a reasonable person would believe that B consented, to that previous distribution; and
• in all the circumstances, a reasonable person would believe that B consented to the distribution of the intimate image to which the charge relates.
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The term place is defined in new section 53O as including land, premises and a vehicle.
This exception, which is a narrower version of the current exception in section 41DA(3)(b) of the Crimes Act 1958, recognises that in some circumstances a person who on-distributes or "forwards" a publicly available intimate image cannot reasonably be expected to obtain consent from the person depicted in the image. For example, if the intimate image is a video excerpt from a commercial film and person A sends that excerpt to a friend.
The exception is limited to circumstances where the intimate image has previously been distributed in a place to which members of the public had access and therefore does not apply to images previously distributed in a private setting such as by text message from one person to another person. The exception also does not apply if B did not consent, and a reasonable person would not believe that they consented, to the distribution even if the image is in the public domain. For example, it would not apply to the further distribution of an intimate image that was posted on a website dedicated to distributing secretly recorded intimate images, or to images found on "revenge porn" websites.
The note at the foot of section 53S references new section 53V and explains its effect, namely, that a mistaken but honest belief that the distribution of the intimate image is not contrary to community standards of acceptable conduct is not a defence to an offence against 53S(1).
New section 53T—Threat to distribute intimate image
New section 53T(1) introduces the new offence of threat to distribute an intimate image. Under this section, a person (A) commits this offence if—
• A makes a threat to another person (B) to distribute an intimate image depicting B or another person; and
• the distribution of the image would be contrary to community standards of acceptable conduct; and
• A intends that B will believe, or believes that B will probably believe, that A will carry out the threat.
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The terms distribute and intimate image and image are defined in new section 53O(1). Image has the meaning given by new section 53O(2). The phrase "contrary to community standards of acceptable conduct" has the meaning given by new section 53U.
Section 53T replicates the elements of the offence of threat to distribute intimate image under section 41DB of the Summary Offences Act 1966, which clause 32 of the Bill repeals.
New section 53T(2) provides that the maximum penalty for this offence is 3 years' imprisonment. This is the same maximum penalty that applies to the new offences of producing and distributing an intimate image contrary to sections 53R(1) and 53S(1). The act of threatening to distribute an intimate image carries the same penalty as the act of distribution of an intimate image in recognition that it may cause the same significant and long-lasting harm. The offence is indictable due to the operation of section 2B of the Crimes Act 1958 but may be heard and determined summarily pursuant to section 28(1)(b)(iii) of the Criminal Procedure Act 2009.
New section 53T(3) clarifies that, for the purposes of new section 53T(1), a threat may be made by words or conduct and may be explicit or implicit.
The note at the foot of section 53T references new section 53V and explains its effect, namely, that a mistaken but honest belief that the distribution of the intimate image would not be contrary to community standards of acceptable conduct is not a defence to an offence against 53T(1).
New section 53U—Community standards of acceptable conduct
New section 53U gives meaning to the phrase "contrary to community standards of acceptable conduct" for the purposes of the new offences of producing, distributing, or threatening to distribute intimate images contrary to sections 53R, 53S and 53T.
New section 53U(1) establishes that whether the production or distribution of an intimate image is contrary to community standards of acceptable conduct depends on the circumstances. The issue must therefore be determined on a case-by-case basis.
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New section 53U(2) provides a non-exhaustive list of relevant circumstances the trier of fact is to have regard to for the purposes of new section 53U(1). These are—
• the nature and content of the intimate image;
• the circumstances in which the intimate image is produced or distributed;
• the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the intimate image;
• the degree to which the production or distribution of the intimate image affects the privacy of a person depicted in the intimate image.
This is consistent with the definition of community standards of acceptable conduct that applies to the offences of distribution of intimate image and threat to distribute intimate image in sections 41DA and 41DB of the Summary Offences Act 1966, both of which are repealed by clause 32 of the Bill.
Examples of what may not be contrary to community standards of acceptable conduct, for the purposes of the offences of producing or distributing an intimate image, are at the foot of sections 53R(1) and 53S(1).
New section 53V—No defence of honest and reasonable mistake
New section 53V provides that the defence of honest and reasonable mistake is not available in relation to the element that the production or distribution of the image is contrary to community standards. The accused may therefore not rely on a defence that, at the time of the conduct constituting the offence, they were under a mistaken but honest and reasonable belief that—
• for an offence against section 53R(1)—production of the intimate image was not contrary to community standards of acceptable conduct; or
• for an offence against section 53RS(1)—distribution of the intimate image was not contrary to community standards of acceptable conduct; or
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• for an offence against section 53T(1)—distribution of the intimate image would not be contrary to community standards of acceptable conduct.
The element in sections 53R(1), 53S(1) and 53T(1) that the production or distribution of the intimate image is, or would be, contrary to community standards is an absolute liability element.
New section 53W—Consent of Director of Public Prosecutions required if accused is under 16 years of age
New section 53W provides that a prosecution for an intimate image offence must not be commenced without the consent of the Director of Public Prosecutions if the accused is under 16 years of age at the time of the alleged offending.
This requirement addresses the risk of over criminalising children who commit image-based sexual offences and implements recommendation 54a of the VLRC Report.
New section 53X—Application for intimate image disposal order
New sections 53X to 53ZB create an intimate image disposal order scheme similar to the child abuse material disposal order scheme contained in sections 51W to 51Y of the Crimes Act 1958. This acquits recommendation 52d of the VLRC Report. Such orders are intended to protect privacy and prevent an intimate image from being used to commit further offences in the future.
Where there is a conviction for a criminal offence related to the intimate image, sections 77 and 78 of the Confiscation Act 1977 apply to its disposal or forfeiture.
New section 53X applies to an intimate image that is not the subject of a conviction for a criminal offence, that is, where the seized thing, or the electronic material contained in a seized thing—
• was the subject of a criminal proceeding for an intimate image offence in which—
• the charge was discontinued, withdrawn or permanently stayed; or
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• the person charged was acquitted or found not guilty (including because of mental impairment) of the charge; or
• the charge was dismissed; or
• the person charged was released on an undertaking under section 75 of the Sentencing Act 1991; or
• was not the subject of a criminal proceeding.
New section 53O defines seized thing and electronic material.
The Director of Public Prosecutions or a police officer may apply to a court for an intimate image disposal order under new section 53X(1).
New section 53X(2) provides that applications are to be made to the court in which the proceeding was last heard (enabling applications to be made and heard at that time) or the Magistrates' Court.
New section 53Y—Notice of application for intimate image disposal order and entitlement to appear
New section 53Y(1) requires the applicant to give written notice of an application under section 53X to every person whom the applicant has reason to believe has an interest in the seized thing or in the electronic material contained in the seized thing. For example, if the seized thing belonged to a business, written notice must be given to the business. If the seized thing was owned by 2 persons, then written notice must be given to both persons.
New section 53Y(2) specifies how written notice under new section 53Y(1) is to be given, being ordinary service, within 14 days of the return date. New section 53Y(5) provides that ordinary service and return date have the same meanings as in the Criminal Procedure Act 2009.
The court may waive the requirement for notice in certain circumstances, specified under new section 53Y(3). For example, it may be appropriate to waive the requirement to give notice if the application is made at the end of a criminal proceeding where the accused (who is the sole owner of the
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seized thing) is already present. New section 53Y(4) also allows the court to order that notice be given to additional persons.
New section 53Z—Intimate image disposal order
New section 53Z(1) allows the court to order that the seized thing, or the electronic material contained in the seized thing, to which the application relates—
• be forfeited to the State; and
• be destroyed or disposed of in a manner—
• determined by the court; and
• specified in the order.
A note at the foot of new section 53Z(1) highlights that an intimate image disposal order that relates to a seized thing that is an intimate image results in forfeiture of the seized thing. An intimate image disposal order that relates to electronic material that is contained in a seized thing results in forfeiture of the electronic material only. This ensures that a person who has not been convicted of a criminal offence does not lose their property unnecessarily.
New section 53Z(2) provides that the court may only make an intimate image disposal order—
• if satisfied, on the balance of probabilities, that—
• the seized thing is, or the electronic material contained in the seized thing includes, an intimate image; and
• the return to a person of the seized thing, or of the electronic material contained in the seized thing, may result in the commission of an intimate image offence; or
• if satisfied, on the balance of probabilities, that—
• the seized thing contains encrypted or password protected electronic material; and
• there are reasonable grounds to believe that the electronic material includes an intimate image.
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New section 53Z(3) provides that the court may give any direction necessary to give effect to an order made by it.
New section 53Z(4) prescribes the persons who are entitled to appear and give evidence at a hearing of an intimate image disposal order. These are—
• persons to whom notice was given under subsections (1) or (4) of new section 53Y;
• any other person who claims an interest in the seized thing or electronic material contained in the seized thing.
However, as new section 53Z(5) provides, the non-appearance of such a person does not prevent the court from making an intimate disposal order.
New section 53ZA—Appeal against intimate image disposal order
New section 53ZA prescribes the appeal process in relation to intimate image disposal orders. This mirrors the appeal process available in relation to child abuse material disposal orders under subsections (4) to (8) of section 51X of the Crimes Act 1958.
New section 53ZA(1) states that a person who has an interest in a seized thing, or in electronic material contained in a seized thing, may appeal against an intimate image disposal order made in respect of it. This does not affect any other right of appeal held by such a person.
New section 53ZA(2) provides that an appeal is to be made by a person in the same manner as if—
• the person had been convicted of an intimate image offence by the court that made the intimate image disposal order; and
• the intimate image disposal order were, or were part of, the sentence imposed in respect of that offence.
New section 53ZA(3) provides that, on appeal, the disposal order may be confirmed, discharged, or varied. Alternatively, the matter may be remitted for rehearing to the court that made the order with or without any direction in law.
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New section 53ZA(4) stays a disposal order during the appeal period. Appeal period is defined by new section 53ZA(5).
New section 53ZB—Disposal of thing or material by consent
New section 53ZB provides that nothing in sections 53X, 53Y, 53Z or 53ZA prevents the consensual destruction or disposal of a seized thing that is, or of electronic material contained in a seized thing that includes, an intimate image. For example, the owner of a seized thing (A) may allow a police officer to delete an intimate image from A's mobile phone without an intimate image disposal order having been made in respect of the image.
Division 2—Amendment of Criminal Procedure Act 2009
Clause 23 inserts a definition of intimate image offence in section 3 of the Criminal Procedure Act 2009. This term is defined as having the same meaning as in section 53O(1) of the Crimes Act 1958, which is an offence against sections 53R(1), 53S(1) or 53T(1) of that Act. New sections 53O(1), 53R(1), 53S(1) and 53T(1) are inserted into the Crimes Act 1958 by clause 22 of the Bill.
Clause 24 amends section 4(a) of the Criminal Procedure Act 2009 to expand the meaning of sexual offence to include an intimate image offence. Section 3 of the Criminal Procedure Act 2009, as amended by clause 23 of the Bill, defines intimate image offence.
The inclusion of intimate image offences in the definition of sexual offence acquits recommendation 53 of the VLRC Report. It has the effect of extending the application of protections in Part 8.2 in Chapter 8 of the Criminal Procedure Act 2009 to a criminal proceeding that relates (wholly or partly) to a charge for an intimate image offence. These protections include alternative arrangements for giving evidence for complainants and witnesses under Division 4 of Part 8.2 of the Criminal Procedure Act 2009. Other procedures and protections for complainants in sexual offences (e.g. in committal proceedings) will now also apply to intimate image offences. Further, this amendment has the effect of applying restrictions and prohibitions on certain publications under the Judicial Proceedings Reports Act 1958 to intimate image offences.
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Clauses 39 and 41 of the Bill remove intimate image offences from the definition of sexual offence in—
• section 3 of the Spent Convictions Act 2021; and
• section 5AA(3) of the Sentencing Act 1991.
Division 3—Amendment of Confiscation Act 1997
Clause 25 amends section 77(1) of the Confiscation Act 1997 to insert new paragraphs (cc) and (cd). As a result, section 77(1) provides that, if a person has been convicted of a Schedule 1 offence, the Director of Public Prosecutions or an appropriate officer may apply for a disposal order in respect of—
• an intimate image as defined in section 53O(1) of the Crimes Act 1958; or
• electronic material as defined in section 53O(1) of the Crimes Act 1958 that contains an intimate image as defined in that section.
This is consistent with the power to do so in respect of child abuse material under paragraphs (ca) and (cb) of section 77(1) in the Confiscation Act 1997.
Division 4—Amendment of Summary Offences Act 1966
Clause 26 amends the heading to Division 4A of Part I of the Summary Offences Act 1966 so that it is "Observation of genital or anal region". This is a consequential amendment caused by the repeal of sections 41B, 41C, 41DA and 41DB by clauses 30 and 32 of the Bill which results in section 41A of the Summary Offences Act 1966 being the only offence in that Division.
Clause 27 repeals the definitions of child, community standards of acceptable conduct, distribute, intimate image and visually capture from section 40 of the Summary Offences Act 1966. These terms no longer appear in Division 4A of Part I of the Summary Offences Act 1966 due to the repeal of sections 41B, 41C, 41DA and 41DB by clauses 30 and 32 of the Bill.
Paragraph (b) of clause 27 makes a consequential amendment to the definition of place in section 40 of the Summary Offences Act 1966. This is required because it is now the final term defined in that provision.
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Clause 28 makes consequential amendments to section 41 of the Summary Offences Act 1966 to reflect that, as a result of clauses 30 and 32 of the Bill, section 41A is now the only offence in Division 4A of Part I and visually capture is no longer used in that Division.
Clause 29 substitutes "41D(1) for "41D" in the second note at the foot of section 41A of the Summary Offences Act 1966. This is a consequential amendment required due to the substitution of section 41D by clause 31 of the Bill.
Clause 30 repeals sections 41B and 41C of the Summary Offences Act 1966. The offences contained in these provisions are incorporated into the new offences of producing and distributing an intimate image in new sections 53R(1) and 53S(1) of the Crimes Act 1958, as introduced by clause 22 of the Bill. Clause 22 implements recommendation 52 of the VLRC Report.
Clause 31 substitutes section 41D of the Summary Offences Act 1966 to remove references to sections 41B and 41C, which are repealed by clause 30 of Bill. The wording of the substituted section otherwise replicates that in current section 41D(1).
Clause 32 repeals sections 41DA and 41DB of the Summary Offences Act 1966. The offences contained in these provisions are incorporated into the new offences of distributing and threatening to distribute an intimate image in new sections 53S(1) and 53T(1) of the Crimes Act 1958, as introduced by clause 22 of the Bill. This implements recommendation 52 of the VLRC Report.
Clause 33 consequentially amends subsections (1) and (2) of section 41E of the Summary Offences Act 1966 to omit references to sections 41B, 41C, 41DA and 41DB following their repeal by clauses 30 and 32 of the Bill.
Clause 34 consequentially amends paragraphs (a)(ii) and (b) of section 41F of the Summary Offences Act 1966 to omit references to sections 41B, 41C, 41DA and 41DB following their repeal by clauses 30 and 32 of the Bill.
Division 5—Amendment of Serious Offenders Act 2018
Clause 35 consequentially amends Schedule 3 to the Serious Offenders Act 2018, which lists additional offences not to be committed as core conditions of a supervision order for the purposes of that Act.
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Paragraph (a) inserts references to the offences in new sections 53S and 53T of the Crimes Act 1958 (distributing and threat to distribute intimate image) in Schedule 3. This is consistent with the existing law as sections 41DA and 41DB of the Summary Offences Act 1966 (distribution and threat to distribute intimate image) are currently listed in Schedule 3. Paragraph (b) removes clauses 5 and 6 in the Schedule, relating to sections 41DA and 41DB, as those sections are repealed by clause 32 of the Bill.
Clause 35 does not insert a clause relating to new section 53R (producing intimate image) in Schedule 3 because the offence of visually capturing genital or anal region contrary to section 41B of the Summary Offences Act 1966 is not currently included in the Schedule.
Division 6—Amendment of Worker Screening Act 2020
Clause 36 consequentially amends Schedule 3 to the Worker Screening Act 2020, which lists National Disability Insurance Scheme (NDIS) category B offences for the purposes of that Act.
Paragraph (a) inserts references to new sections 53R(1), 53S(1) and 53T(1) of the Crimes Act 1958 (producing, distributing and threat to distribute intimate image) in clause 3 of Schedule 3. As a result, these offences will constitute NDIS category B offences where the person against whom the offence is committed is a child or a vulnerable person. This is consistent with the existing law as the offences in Division 4A of Part I of the Summary Offences Act 1966 are currently NDIS category B offences if those circumstances exist.
Paragraph (b) makes a consequential amendment to clause 24 in Schedule 3 to reflect that section 41A is now the only offence in Division 4A of Part I of the Summary Offences Act 1966, due to amendments made by clauses 30 and 32 of the Bill.
Clause 37 consequentially amends Schedule 4 to the Worker Screening Act 2020, which lists Working with Children (WWC) category B offences for the purposes of that Act.
Paragraph (a) inserts references to new sections 53R(1), 53S(1) and 53T(1) of Crimes Act 1958 (producing, distributing and threat to distribute intimate image) in clause 10(a) of Schedule 4. As a result, these offences will constitute WWC category B
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offences. This is consistent with the existing law as the offences in Division 4A of Part I of the Summary Offences Act 1966 are currently WWC category B offences.
Paragraph (b) makes consequential amendments to clause 15 in Schedule 4 to reflect that section 41A is now the only offence in Division 4A of Part I of the Summary Offences Act 1966, due to amendments made by clauses 30 and 32 of the Bill.
Division 7—Amendment of Victims of Crime (Financial Assistance Scheme) Act 2022
Clause 38 consequentially amends section 3(1) of the Victims of Crime (Financial Assistance Scheme) Act 2022.
Paragraph (a) amends the definition of relevant offence to—
• include intimate image offences against new Subdivision (8FAAB) of Division 1 of Part I of the Crimes Act 1958, as introduced by clause 22 of the Bill;
• reflect that section 41A is the only offence in Division 4A of Part I of the Summary Offences Act 1966, due to amendments made by clauses 30 and 32 of the Bill.
Paragraph (b) amends the definition of sexual offence to—
• include intimate image offences against new Subdivision (8FAAB) of Division 1 of Part I of the Crimes Act 1958, as introduced by clause 22 of the Bill.
Division 8—Amendment of Spent Convictions Act 2021
Clause 39 amends section 3 of the Spent Convictions Act 2021 to remove intimate image offences, as defined in section 3 of the Criminal Procedure Act 2009, from the definition of sexual offence. As a result, a conviction for an intimate image offence is not subject to the conditions that apply to obtaining a spent conviction for a sexual offence. Intimate image offences have been removed from the definition of sexual offence to enable offenders to access a spent conviction in appropriate circumstances (e.g. where a young adult was particularly immature at the time of their offending).
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Division 9—Amendment of Sentencing Act 1991
Clause 40 amends section 3(1) of the Sentencing Act 1991 to include a definition of intimate image offence. This term has the same meaning as the definition in section 3 of the Criminal Procedure Act 2009, as inserted by clause 23 of the Bill.
Clause 41 amends section 5AA(3) of the Sentencing Act 1991 to remove intimate image offences from the definition of child sexual offence. As a result, section 5AA(1) will not apply to these offences. This means that, in sentencing an offender for an intimate image offence, a court must have regard to the offender's previous character pursuant to section 5(2)(f) of the Sentencing Act 1991 including where this was of assistance to the offender in the commission of the offence.
Intimate image offences have been carved out from the application of section 5AA to address the risk that the provision would disproportionately affect offenders who are young adults and result in unjust sentencing outcomes.
Part 4—Jury Directions Part 4 amends the Jury Directions Act 2015 to implement recommendations 78, 79 and 82 of the VLRC Report. Among other things, Part 4 introduces new jury directions in sexual offence trials to address some common misconceptions jurors may hold about sexual violence, and ensures it is clear that jury directions to address misconceptions about sexual violence can be provided at the earliest opportunity in a sexual offence trial and repeated at any time during the trial. It also makes amendments to require trial judges to explain the meaning of the phrase "proof beyond reasonable doubt" to juries in all criminal trials, unless there are good reasons for not giving the explanation.
These amendments are supported by research that suggests more directions are needed to address various misconceptions about sexual violence, and that jury directions are most effective when given early in a trial, and repeated. This research is canvassed by the VLRC Report and the New South Wales Law Reform Commission 2020 Report on Consent in Relation to Sexual Offences.
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Division 1—Amendment of Jury Directions Act 2015
Subdivision 1—Directions about sexual offences
Clause 42 inserts the definitions of commercial sexual services, gender identity, sexual offence and sexual orientation into section 3 of the Jury Directions Act 2015.
Sexual offence is given the same meaning as in section 4 of the Criminal Procedure Act 2009 (as amended by clause 24). It is currently defined in this way for the purposes of Divisions 2 and 3 of Part 5 of the Jury Directions Act 2015. As the Bill will use the same definition in new Divisions 1AA and 1A of that Part, clause 42 inserts it into the general definition provision, section 3, and clauses 50 and 54 repeal it from sections 50 and 54C respectively.
Sexual orientation and gender identity are given the same meaning as in section 4 of the Equal Opportunity Act 2010. Commercial sexual service has the same meaning as in section 53A of the Crimes Act 1958 (however, new section 70A of the Sex Work Decriminalisation Act 2022, to be inserted by clause 59, will later amend this reference). These terms are used in new section 47H (to be inserted by clause 48), which is a new direction on non-consensual sexual acts occurring between all sorts of people. They are also used in new prohibited statements inserted by clause 51.
Clause 43 inserts new Division 1AA before Division 1 of Part 5 of the Jury Directions Act 2015. New Division 1AA facilitates judges requesting an early indication of whether directions under Part 5, which contains jury directions about sexual offences, may be needed in the trial.
New Division 1AA supports recommendation 79 of the VLRC Report, which is based on research indicating that jury directions may be more effective in countering assumptions or misconceptions about sexual violence when delivered early in the trial. A pre-trial indication of likely directions will encourage judges and parties to consider the potential need for Part 5 directions at an early stage, facilitating those directions being given at the earliest appropriate opportunity.
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New section 44O provides that new Division 1AA applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence. It will also apply to an offence of attempting to commit a sexual offence, as attempts are included in the definition of sexual offence.
New section 44P provides that before the trial commences, the trial judge may request an indication from parties about whether it is likely that evidence will be adduced in the trial that would provide a good reason for giving a direction under Part 5. This new section provides flexibility for the trial judge to request information if appropriate. However, the judge is not required to form a view at that time about whether to give a particular direction and, if the judge does form a view, they can later reconsider it.
In line with this flexible approach, and to reflect how criminal trials operate, new section 44P clarifies that parties can later make submissions regarding a direction that the judge was not informed of at this early stage.
Clause 44 substitutes a new heading for Division 1 of Part 5 of the Jury Directions Act 2015, "Consent and reasonable belief in consent (offences after 1 July 2015)." This clarifies that the division only applies to offences alleged to have been committed after 1 July 2015, which is the date that comprehensive amendments to the Crimes Act 1958 regarding sexual offences came into operation, including the introduction of sexual offences in Subdivisions (8A), (8B), (8C) and (8D) of Division 1 of Part 1 of the Crimes Act 1958.
Clause 45 substitutes the notes at the foot of section 45 of the Jury Directions Act 2015 to reflect that there is more than one note, and to include new Note 5. New Note 5 assists readers to understand the significance of the 1 July 2015 date in the heading to Division 1 (as amended by clause 44). The new note clarifies that 1 July 2015 is the date the new Subdivisions (8A), (8B), (8C) and (8D) of Division 1 of Part 1 of the Crimes Act 1958 came into operation.
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Clause 46 repeals section 46(3)(c), (d) and (e) of the Jury Directions Act 2015 and makes a consequential amendment to section 46(3)(b) to reflect that repeal. Section 46(3)(c), (d) and (e) contain directions about the circumstances in which non-consensual sexual activity occurs and how people may react to non-consensual sexual activity. Clause 48 moves these directions into new Division 1A of Part 5, with minor variations. This reflects how these misconceptions are also relevant to sexual offences allegedly committed before 1 July 2015, and ensures the new process introduced by clause 48 (which governs when certain misconception directions should be given) will apply to these existing directions.
Clause 47 repeals section 47(3)(c) of the Jury Directions Act 2015, which is a direction about how a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act is not a reasonable belief in consent. Clause 48 moves this direction into new Division 1A in Part 5, with minor variations to clarify its operation. This ensures the new process introduced by clause 48 (which governs when certain misconception directions should be given) will apply to this direction.
Clause 48 inserts new Division 1A after Division 1 of Part 5 of the Jury Directions Act 2015. New Division 1A contains many directions on misconceptions relating to consent and belief in consent that are relevant to sexual offences alleged to have been committed before, on or after 1 July 2015, including those that clauses 46 and 47 repeal from Division 1. In conjunction with clause 91, it also displaces the operation of some earlier Crimes Act 1958 misconception directions (repealed section 37AAA(e)(i) to (iii) of the Crimes Act 1958).
New Subdivision 1—Preliminary
New section 47A provides that this Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence. It will also apply to an offence of attempting to commit a sexual offence, as attempts are included in the definition of sexual offence.
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New section 47B disapplies Part 3 of the Jury Directions Act 2015, which provides a general framework for determining the directions that the trial judge should give to the jury and the content of those directions. A different framework will apply to directions in this Division. However, as new section 47C provides that the trial judge is not prevented from giving Division 1A directions in their summing up to the jury, these directions may be given at the same time as directions requested under Part 3.
New Subdivision 2—Trial judge's obligation to give directions
New Subdivision 2 contains new section 47C, which sets out the framework that applies to the trial judge's obligation to give directions under this division. It is intended to facilitate an efficient and consistent approach to when misconception directions are given in sexual offence trials.
Section 10(2) of the Jury Directions Act 2015 makes clear that judges can give any jury direction that the judge considers necessary at any time during the trial before the close of all evidence. However, the VLRC recommended a new procedure to encourage earlier and more frequent jury directions addressing misconceptions about sexual violence. New section 47C addresses recommendation 79 of the VLRC Report by requiring judges to give a direction under Division 1A when they consider there are good reasons to do so. It provides that these directions—
• must be given to the jury at the earliest time in the trial that the judge determines is appropriate; and
• may be given and repeated at any time during the trial, including before any evidence is adduced or in the trial judge's summing up to the jury; and
• may be given on the judge's own motion or requested by counsel (or, if the accused is self-represented, by the accused).
This new framework may be supported by the pre-trial indication process introduced by clause 43.
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New section 47C(1) lists the directions on consent and reasonable belief that Division 1A applies to. Set out in new Subdivisions 3 and 4 of Division 1A, these are directions on—
• the absence of physical injury, violence or a threat;
• responses to a non-consensual sexual act;
• other sexual activity;
• personal appearance and irrelevant conduct;
• non-consensual sexual acts between all sorts of people; and
• general assumptions not informing a reasonable belief in consent.
These are the directions that clauses 46 and 47 repeal from sections 46 and 47 respectively, and new directions recommended by the VLRC.
Trial judges are required to give whichever of those directions they consider there are good reasons to give. The "good reasons" threshold is intended to ensure that directions are only given when the trial judge considers they are necessary, consistent with the purposes and guiding principles of the Jury Directions Act 2015. This would include where the judge considers there is likely to be evidence adduced in the trial that relates to a misconception that Division 1A contains directions on, and the misconception may influence juror reasoning. In determining whether there are good reasons to give the direction, the trial judge must have regard to the parties' submissions, if any.
New Subdivision 3—Directions on consent
New Subdivision 3 contains new sections 47D to 47H, which provide for jury directions addressing misconceptions about consent. Like all directions in the Jury Directions Act 2015, the trial judge need not use any particular form of words when giving these directions.
New sections 47D to 47F replicate the current directions in sections 46(3)(c) to 46(3)(e), which are repealed by clause 46. The directions in these new sections also take the place of equivalent directions available for sexual offences alleged to have been committed before 1 July 2015 (under previous
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section 37AAA(e) of the Crimes Act 1958 which was repealed in 2014 but which continues in effect by virtue of section 626 of the Crimes Act 1958). New section 638 of the Crimes Act 1958, introduced by clause 91, confirms that the directions under previous section 37AAA are no longer to be given. By consolidating these repealed and current directions, the Bill supports a simplified approach which may be particularly relevant in trials for indictments that contain multiple charges, some alleged to have been committed before and some after 1 July 2015.
New section 47D provides the direction on the absence of physical injury, violence or a threat. The direction informs the jury that experience shows that—
• there are many different circumstances in which people do and do not consent to a sexual act; and
• people who do not consent to a sexual act may not be—
• physically injured or subjected to violence; or
• threatened with physical injury or violence.
This addresses the misconception that a person who did not consent to a sexual act will always have been physically threatened or injured by that act. It replicates the current consent direction in section 46(3)(c) and the repealed direction in section 37AAA(e)(i) of the Crimes Act 1958.
New section 47E provides the direction on responses to a non-consensual sexual act. The direction informs the jury that experience shows that—
• people may react differently to a sexual act to which they did not consent and there is no typical, proper or normal response; and
• people who do not consent to a sexual act may not protest or physically resist the act (for example, the person may freeze and not do or say anything).
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This addresses the misconception that a person who did not consent to a sexual act will always have physically protested that act. It replicates the current consent direction in section 46(3)(d), and the repealed direction in section 37AAA(e)(ii) of the Crimes Act 1958.
New section 47F provides the direction on other sexual activity. The direction informs the jury that experience shows that people who do not consent to a sexual act with a particular person on one occasion may have, on one or more other occasions, engaged in or been involved in consensual sexual activity—
• with that person or another person; or
• of the same kind or a different kind.
This addresses the misconception that a person who did not consent to a sexual act would not have consensually engaged in the same or similar sexual activity with the accused or any other person. It replicates the current consent direction in section 46(3)(e), and the repealed direction in section 37AAA(e)(iii) of the Crimes Act 1958.
New section 47G provides for a direction on personal appearance and irrelevant conduct. The direction informs the jury that it should not be assumed that a person consents to a sexual act just because the person—
• wore particular clothing; or
• had a particular appearance; or
• drank alcohol or took any other drug; or
• was present in a particular location (for example, a nightclub or the accused's home); or
• acted flirtatiously.
This new direction implements recommendation 78b and 78c of the VLRC Report. It addresses misconceptions, which research shows are present in the community, that—
• sexual offending may be "invited" or "provoked" by the style of dress adopted by a complainant, and that consent to sexual activity may be assumed (or inferred) from the style of dress adopted by the complainant;
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• a complainant who consumes alcohol or drugs is responsible for, or provokes, sexual offending;
• the fact a complainant went to a nightclub, or to the accused person's home, indicates that they consented to sexual activity; and
• flirtatious behaviour implies consent to later sexual activity.
The VLRC recommended a direction addressing misconceptions relating to "behaviour perceived to be flirtatious", in response to VLRC submissions which noted that an accused person's subjective interpretation of the complainant's behaviour, such as tone of voice and other "flirtatious" actions, is sometimes used to establish that the accused held a reasonable belief in consent. Rather than focusing on the accused's perception of a complainant's behaviour, the direction indicates that flirting does not equate to consent to a sexual act. This applies regardless of whether the complainant intended to flirt, or the accused interpreted the complainant's behaviour as flirtatious.
The trial judge need only give so much of the direction as is necessary to address the misconceptions that are relevant to the trial. For example, if the complainant was present at a nightclub but not drinking alcohol or taking drugs, the trial judge would not need to refer to alcohol or drugs when giving this direction.
New section 47H provides the direction on non-consensual sexual acts occurring between all sorts of people. The direction informs the jury that experience shows that—
• there are many difference circumstances in which people do not consent to a sexual act; and
• sexual acts can occur without consent between all sorts of people, including—
• people who know each other;
• people who are married to each other;
• people who are in a relationship with each other;
• people who provide commercial sexual services and people whose arousal or gratification such services are provided;
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• people of the same or different sexual orientations;
• people of any gender identity, including people whose gender identity does not correspond to their designated sex at birth (for example, people who are transgender, non-binary, genderqueer or gender fluid).
Sexual orientation and gender identity will be defined by section 3 to be consistent with their meanings in the Equal Opportunity Act 2010. Commercial sexual services will be defined by section 3 to be consistent with its definition in section 53A of the Crimes Act 1958 (or section 35, after Part 7 of the Sex Work Decriminalisation Act 2022 commences).
As with all directions in the Jury Directions Act 2015, in giving a direction regarding sexual orientation or gender identity, the trial judge need not use any particular form of words, and can use a form of words appropriate in the particular circumstances of the trial.
This new direction implements recommendation 78d of the VLRC Report. It is based on research which shows there are misconceptions and assumptions about the people between whom non-consensual sexual activity occurs, including that sexual assault cannot occur, rarely occurs or is less serious within marriage or established relationships. Additionally, submissions to the VLRC indicated there are misconceptions relating to the sex industry, such as a misconception that non-consensual sexual activity cannot occur when someone paid for sexual content or services. The new direction seeks to minimise the impact that such misconceptions can have on jury reasoning.
New Subdivision 4—Directions on reasonable belief in consent
New Subdivision 4 contains new section 47I, which provides for a direction on general assumptions not informing a reasonable belief in consent.
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New section 47I replaces the current direction in section 47(3)(c), which is repealed by clause 47, with some minor variations to clarify its operation. This direction informs the jury that—
• a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and
• a belief in consent that is based on a combination of matters, including a general assumption of the kind described in the above paragraph, is not a reasonable belief to the extent that it is based on that assumption.
This direction supports recommendation 78 of the VLRC Report by making clear that stereotyping opinions about sexual behaviour are not to be taken into account when assessing the reasonableness of a belief in consent. To assist judges to understand when there may be good reasons to give this direction, the Bill includes 2 new examples of general assumptions that the direction is intended to address. These are a general assumption that a person who gets drunk and flirts with another person consents to a sexual act with that other person, and a general assumption that a person who dresses in a way that is considered sexually provocative, and who visits another person's home, consents to a sexual act with that person.
In its current location in Division 1 of Part 5 of the Jury Directions Act 2015, section 47(3)(c) is only available in a criminal proceeding relating to a charge for a sexual offence alleged to have been committed on or after 1 July 2015, which is when the fault element that an accused did not reasonably believe that the complainant consented was introduced. The Bill moves this direction to new Division 1A, which applies more broadly to a criminal proceeding relating to a charge for a sexual offence alleged to have been committed before, on or after 1 July 2015. While the direction will be most relevant for offences allegedly committed on or after 1 July 2015, trial judges may still find that there are good reasons to give it in trials involving earlier charges. The reasonableness of an accused's belief in consent was relevant to offences allegedly committed before 1 July 2015 to the extent that it shed light on whether the accused actually held that belief. While an accused's belief in consent was not the
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"controlling concept" (R v Getachew (2012) 248 CLR 22 [23]), it was relevant "so far as it sheds light on the accused's awareness that the complainant was not or might not be consenting".
Clause 49 makes a consequential amendment to section 49 of the Jury Directions Act 2015, to remove the reference to section 53. Clause 53 of this Bill repeals section 53, and clause 52 amends section 52 to include the direction currently provided for by section 53.
Clause 50 repeals the definition of sexual offence in section 50. The Bill inserts the same definition of sexual offence in section 3.
Clause 51 inserts new prohibited statements into section 51 of the Jury Directions Act 2015. These prohibit the trial judge, prosecution and defence from saying or suggesting to the jury that—
• complainants who provide commercial sexual services are, as a class, less credible or require more careful scrutiny than other complainants; or
• complainants who have a particular sexual orientation are, as a class, less credible or require more careful scrutiny than other complainants; or
• complainants who have a have a particular gender identity (including complainants whose gender identity does not correspond to their designated sex at birth) are, as a class, less credible or require more careful scrutiny than other complainants.
Sexual orientation and gender identity will be defined by section 3 to be consistent with the definitions provided in the Equal Opportunity Act 2010. Commercial sexual services will be defined by section 3 to be consistent with its definition in section 53A of the Crimes Act 1958 (or section 35, after Part 7 of the Sex Work Decriminalisation Act 2022 commences).
Introducing these additional prohibited statements goes beyond the VLRC's recommendations. However, in its report the VLRC cited research about misconceptions that could affect the credibility of LGBTIQ+ complainants. The new prohibited statements are designed to address these kinds of outdated, inaccurate attitudes by prohibiting generalised statements about the reliability and credibility of these complainants as a class.
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If the prosecution or defence make a statement or suggestion that is contrary to this prohibition, or a jury asks a question that contains a prohibited statement, section 7 of the Jury Directions Act 2015 requires the judge to give a corrective direction unless there are good reasons not to do so.
Clause 52 amends section 52 of the Jury Directions Act 2015, which provides for a direction on delay in complaint or lack of complaint.
The VLRC found that the process for the current direction on delay in complaint and lack of complaint is working well. Accordingly, rather than integrate this direction into new Division 1A, clause 52 implements recommendation 79 of the VLRC Report in relation to the delay direction by amending its procedure to make clear that it may be given either at the request of the prosecution or on the trial judge's own motion.
Subclause (3) incorporates the content of the repealed section 53 direction into the section 52 delay in complaint or lack of complaint direction. The direction informs the jury that experience shows that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence. Moving the content of the section 53 direction into section 52 will mean the trial judge must give the direction if the trial judge considers that there is likely to be evidence in the trial that suggests the complainant delayed in making a complaint or did not make a complaint.
Subclause (4) inserts new subsections (4A) and (4B) in section 52. These provide that, in giving a direction under section 52, the trial judge may give an example of a good reason referred to in section 52(4)(d), and that an example does not need to be based on the evidence in the trial. This will clarify that a trial judge may provide examples of good reasons that do not relate to the specific facts of the case, resolving ambiguity created by Court of Appeal obiter dicta remarks in Ford (a pseudonym) v The Queen [2020] VSCA 162. This clarification is particularly necessary as judges may now give this direction before any evidence of delay has been adduced, making abstract examples more appropriate.
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Clause 53 repeals section 53 of the Jury Directions Act 2015, which contains a direction on delay in complaint that clause 52 inserts into section 52.
Clause 54 repeals the definition of sexual offence from section 54C of the Jury Directions Act 2015 and makes consequential amendments to reflect that repeal. Clause 42 inserts the same definition of sexual offence in section 3.
Clause 55 inserts new section 54D(2A) after section 54D(2) of the Jury Directions Act 2015.
The VLRC found that the process for the current direction on differences in a complainant's account is working well. Accordingly, rather than integrate this direction into new Division 1A, clause 55 implements recommendation 79 of the VLRC Report in relation to this direction by amending its procedure to make clear that it may be given either at the request of the prosecution or on the trial judge's own motion.
Clause 56 inserts new Division 4 and Division 5 after section 54D in Part 5 of the Jury Directions Act 2015. These Divisions follow a similar structure to existing Divisions 2 (Delay and credibility) and 3 (Differences in complainant's account) of Part 5, as amended by this Bill.
New Division 4—Continuation of relationship or communication after sexual offence
New Division 4 contains new sections 54E to 54H. It implements recommendation 78e of the VLRC Report by introducing a new direction to address misconceptions about maintaining a relationship or communication with a person accused of committing sexual offences, which some jurors may find counterintuitive.
New section 54E provides that Division 4 applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence. New section 54F disapplies Part 3 (Request for directions), for the reasons explained in relation to new section 47B (introduced by clause 48).
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New section 54G defines evidence of a post-offence relationship to mean evidence that suggests that, after the offence charged is alleged to have been committed, the complainant continued a relationship with the accused, or otherwise continued to communicate with the accused. This phrase is used in new section 54H to indicate what type of evidence should prompt the trial judge to give the direction in that section.
New section 54H(1) provides that if, before any evidence is adduced in the trial and after hearing submissions from the parties, the trial judge considers that in the trial there is likely to be evidence of a post-offence relationship, the trial judge must direct the jury before any such evidence is adduced and may give the direction before any evidence is adduced in the trial.
New section 54H(2) provides that if, at any other time during the trial, the trial judge considers that there is evidence of a post-offence relationship, the trial judge must direct the jury as soon as is practicable.
New section 54H(3) and (4) provide that this direction may be given at the request of the prosecution or on the trial judge's own motion, and the trial judge may repeat a direction under section 54H at any time in the trial.
New section 54H(5) provides that in giving a direction under this section, the trial judge must inform the jury that experience shows that—
• people may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and
• some people who are subjected to a sexual act without consent will never again contact the person who subjects them to the act, while others may continue a relationship with that person or otherwise continue to communicate with them; and
• there may be good reasons why a person who is subjected to a sexual act without their consent continues a relationship with the person who subjects them to the act, or otherwise continues to communicate with that person.
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The phrase "people may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response" is also used in new section 47E (introduced by clause 48, but reflecting current section 46(3)(d)). It is also similar to the opening phrase of the section 52 delay in complaint direction. Noting that judges are not required to use a particular form of words when giving directions (section 6), judges will be able to adapt these directions as needed to avoid unnecessary repetition in trials where more than one of these directions is required.
New section 54H(6) and (7) provide that in giving a direction under new section 54H, the trial judge may give an example of a good reason referred to in new section 54H(5)(c), and clarify that the example does not need to be based on the evidence given in the trial. This clarity responds to ambiguity that arose in relation to the similar direction in section 53, after obiter dicta comments in Ford (a pseudonym) v The Queen [2020] VSCA 162.
New Division 5—Whether complainant is distressed or emotional while giving evidence
New Division 5 contains new sections 54I to 54K. It addresses recommendation 78a of the VLRC Report by introducing a new direction to address misconceptions about the complainant's absence or presence of emotion or distress when giving evidence. Like new Division 4, it follows a similar structure to existing Divisions 2 (Delay and credibility) and 3 (Differences in complainant's account) of Part 5, as amended by the Bill, with variations responding to the context in which this misconception can arise.
New section 54I provides that the division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.
New section 54J disapplies Part 3 (Request for directions), for the reasons explained in relation to new section 47B (introduced by clause 48).
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New section 54K(1) provides that if the complainant is to give evidence, the trial judge must direct the jury in accordance with new section 54K(5) unless there are good reasons for not doing so. As the example provides, a good reason may be when there is no question that a sexual offence was committed and the main fact in issue is the identity of the offender. In such a case, the jury may not need to assess the truthfulness of the complainant's evidence that they experienced a sexual offence.
New section 54K(2) provides that the trial judge must give the direction before the complainant gives evidence unless there are good reasons for not doing so.
New section 54K(3) provides that in determining whether there are good reasons for not giving the explanation at all, or not giving the direction before the complainant gives evidence, the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).
New section 54K(4) provides that a trial judge may repeat a direction under new section 54K at any time. Unlike other misconception directions introduced by the Bill, new section 54K does not provide that the direction can be given upon request or on the trial judge's own motion. This is not needed, as the complainant giving evidence in the trial is the specific and clear trigger that requires the direction under this section to be given (unless there are good reasons not to).
New section 54K(5) provides that in giving a direction under this section, the trial judge must inform the jury that experience shows that—
• because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence in court about a sexual offence, while others may not; and
• both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.
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This new direction is based on research showing that people tend to believe that a person who experiences non-consensual sexual activity will display emotion or distress when recounting it. Despite these expectations, emotional reactions following a sexual offence can be highly variable.
Subdivision 2—Explanation of beyond reasonable doubt in all criminal trials
Clause 57 substitutes section 63 of the Jury Directions Act 2015.
Section 63 currently provides that the trial judge may give the jury an explanation of the phrase "proof beyond reasonable doubt" if the jury asks the judge a question about the meaning of the phrase, or which indirectly raises the meaning of the phrase. However, research shows that jurors are often reluctant to ask the trial judge questions, even when told that they can. To ensure jurors in sexual offence trials approach their task with a proper understanding of this fundamental concept, the VLRC recommended "beyond reasonable doubt" be explained in all sexual offence trials, without requiring the jury to ask a question first. New section 63 implements this recommendation (recommendation 82) and extends it to all criminal trials. This amendment will be supported by clause 80 of the Bill, which amends section 223A of the Criminal Procedure Act 2009 to allow a general jury guide to contain information about the meaning of the phrase "proof beyond reasonable doubt".
New section 63(1) provides that the trial judge must give the jury an explanation of the phrase "proof beyond reasonable doubt" unless there are good reasons for not giving the explanation. New section 63(2) provides that the trial judge must give the explanation before any evidence is adduced in the trial unless there are good reasons for not doing so. New section 63(4) provides that, if the trial judge determines that there are good reasons for not giving the jury the explanation before any evidence is adduced in the trial, the trial judge must give that explanation to the jury at the earliest time in the trial that the trial judge determines is appropriate.
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This flexible approach addresses the VLRC's findings that jury directions are most useful when provided as early as possible in the trial, while recognising that there may be occasions where the direction may not be needed, or it will be more appropriate to give the direction after evidence is adduced. For example, an explanation of "proof beyond reasonable doubt" may not be needed if a judge is giving directions in the form of integrated directions.
New section 63(3) provides that in determining whether there are good reasons for not giving the explanation at all or not giving the explanation before any evidence is adduced in the trial, the trial judge must have regard to submissions form the parties.
New section 63(5) clarifies that the trial judge may also give the jury the explanation if the jury asks a direct question about the meaning of the phrase or a question that indirectly raises the meaning of that phrase. This preserves what section 63 currently provides for, as it may be useful in circumstances where the trial judge determined there were good reasons not to give the jury the explanation early in the trial.
New section 63(6) and (7) provide that the trial judge may repeat an explanation of the phrase at any time and, in repeating an explanation, is not required to give the explanation in exactly the same way as it was first given. This is intended to allow trial judges to tailor their explanation to reflect the particulars of a question asked by the jury. This is consistent with section 6 of the Jury Directions Act 2015, which provides that in giving the jury a direction, the trial judge is not required to use a particular form of words.
New section 63(8) clarifies that nothing in the section limits any other power of the trial judge to give the jury an explanation of the phrase "proof beyond reasonable doubt."
Clause 58 makes consequential amendments to section 64 of the Jury Directions Act 2015, to reflect that the phrase "proof beyond reasonable doubt" will no longer always be given in response to jury questions.
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Division 2—Amendment of Sex Work Decriminalisation Act 2022
Clause 59 inserts new Division 8A after Division 8 of Part 7 of the Sex Work Decriminalisation Act 2022. Division 8A provides that the definition of commercial sexual services in section 3 of the Jury Directions Act 2015, as introduced by clause 42 of this Bill, will be amended to refer to the definition of commercial sexual services in section 35 of the Crimes Act 1958, following the commencement of the Part 7 of the Sex Work Decriminalisation Act 2022.
Part 5—Miscellaneous amendments to Criminal Procedure Act 2009
Part 5 amends the Criminal Procedure Act 2009 to acquit recommendations 56, 75, 84 and 89 of the VLRC Report. It also clarifies the operation of section 123 of the Criminal Procedure Act 2009 (which prohibits cross-examination of witnesses in certain sexual offence cases) and introduces a reform to support the acquittal of recommendation 82 of the VLRC Report (which is implemented in Part 4 of the Bill) relating to the explanation of "proof beyond reasonable doubt" to juries. Part 5 makes other miscellaneous reforms to the Criminal Procedure Act 2009 including introducing a power for summary offences to be transferred between the Supreme Court and the County Court and allowing specified employees of the Australian Securities and Investments Commission to witness statements.
Division 1—Uncertainty about time when sexual offence occurred
Clause 60 inserts new section 7B after section 7A of the Criminal Procedure Act 2009. New section 7B provides a substantive, interpretative provision to address the difficulties that the prosecution faces where conduct is alleged to have taken place during a period, the applicable offence changes during that period, and the prosecution is unable to prove to the requisite standard whether the offence occurred before or after the commencement of the new offence.
This provision addresses recommendation 56 of the VLRC Report, which suggested the Crimes Act 1958 be amended as a matter of priority to include transitional provisions for changes to sexual offences made by the Crimes Amendment (Sexual Offences) Act 2016, which commenced in 2017. Transitional provisions were not included for the 2017 changes as the offences were considered "new" offences. However, the laws did
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not explain how the prosecution should proceed when they cannot establish whether the offence was committed before or after the commencement date of the new offences.
New section 7B addresses this issue but is not intended to be a transitional provision. Rather, it seeks to explain how offences can be charged when these specific circumstances arise, to ensure that prosecutions do not fail due to a technical gap in the law. The provision is intended to apply to past amendments to offences as well as future amendments. It is based on similar provisions in New South Wales and the United Kingdom.
New section 7B(1) provides that the new section applies if—
• conduct is alleged to have occurred at some time during a period; and
• the conduct, if proven, would constitute a sexual offence at all times during that period; and
• there is uncertainty as to when, during that period, the conduct allegedly occurred; and
• because of a change in the law during that period, the conduct, if proven, would constitute one sexual offence before the change and a different sexual offence after the change.
This section applies to any sexual offence as defined in section 4 of the Criminal Procedure Act 2009.
New section 7B(2) provides that a person may be charged with—
• whichever of those sexual offences has the lowest maximum penalty; or
• if both of the sexual offences have the same maximum penalty, the offence that the conduct, if proven, would have constituted before the change.
This ensures that the accused is not exposed to greater punishment than that to which they would have been exposed prior to the commencement of new section 7B.
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New section 7B(3) provides an inclusive list of the means by which an offence may be charged in accordance with new section 7B(2). The 2 most likely means are set out in new section 7B(3), namely the prosecution may file a fresh indictment in accordance with section 164 of the Criminal Procedure Act 2009, or amend an indictment, at any time in the proceeding, in accordance with the usual requirements pursuant to section 165 of the Criminal Procedure Act 2009. For example, in proceedings to which the new provision applies, the prosecution may be able to amend an indictment during a trial if uncertainty as to dates/offences arises and the requirements of section 165 of the Criminal Procedure Act 2009 are met.
New section 7B(4) provides that for the purposes of a proceeding that relates (wholly or partly) to an offence that is charged in accordance with new section 7B(2), the offence charged is taken to have been in force when the conduct allegedly occurred. This ensures that there is no dispute as to the offence being in force in circumstances where new section 7B(2) is relied on i.e. where the offence may not have been in force for the entirety of the period of alleged offending.
New section 7B(5) provides that in any such proceeding, any requirement to prove that the complainant was of a particular age is satisfied if the prosecution proves that the complainant was of that age at some point during the period. This ensures that in matters where new section 7B(2) is relied on and an element of the offence charged requires the prosecution to prove the complainant was a particular age, the prosecution need only prove beyond reasonable doubt that the complainant was of the requisite age at some point during the period.
Division 2—Pre-trial cross-examination at committal hearing Division 2 amends the Criminal Procedure Act 2009 to implement recommendations 45 and 46 of the VLRC's 2020 report on Committals, which was recommended in the VLRC Report (recommendation 75). Division 2 will apply the additional considerations for granting leave to cross-examine a child witness, contained in section 124(5) of the Criminal Procedure Act 2009, to witnesses with a cognitive impairment and victims in cases involving sexual or family violence. It will
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also require the Magistrates' Court to provide reasons for granting leave to cross-examine a witness under section 124.
Clause 61 makes a consequential amendment to note 1A at the foot of section 119(c) of the Criminal Procedure Act 2009 to reference new section 124A(b), rather than section 124(6) which is repealed by the Bill.
Clause 62 makes a consequential amendment to section 124(5) of the Criminal Procedure Act 2009 to reflect that the requirements in that section to which the court must have regard apply to a "specified witness", rather than only a child witness.
This clause also inserts new section 124(5A) which provides a definition of specified witness in section 124, which means—
• a child; or
• a person with a cognitive impairment; or
• a complainant in relation to a charge for
• a sexual offence or
• an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.
This amendment implements recommendation 45 of the VLRC's Committals report. The VLRC recommended applying the additional protections in section 124(5) to witnesses who are victims of sexual or family violence or who have a cognitive impairment, as it found that cross-examination is particularly stressful for those witnesses.
This clause also repeals section 124(6), as its effect will be included in new section 124A(b).
Clause 63 inserts new section 124A into the Criminal Procedure Act 2009, to provide that if the Magistrates' Court grants leave to cross-examine a witness under section 124, the court must—
• state the reasons for granting leave, with reference to the matters set out in section 124(4) and (5); and
• identify each issue on which the witness may be cross-examined.
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This amendment implements recommendation 46 of the VLRC's Committals report, which aims to improve the application of the test to grant leave to cross-examine a witness.
Clause 64 makes a consequential amendment to section 132(1) of the Criminal Procedure Act 2009 to reference new section 124A(b), rather than section 124(6) which is repealed by the Bill.
Clause 65 makes a consequential amendment to section 132A(2) of the Criminal Procedure Act 2009 to reference new section 124A(b), rather than section 124(6) which is repealed by the Bill.
Clause 66 makes a consequential amendment to section 198A(6) to reflect that the additional considerations in section 124(5) apply to a specified witness (within the meaning of section 124(5A)), rather than only a child witness.
Division 3—No cross-examination in certain committal hearings
Clause 67 amends section 123(1) of the Criminal Procedure Act 2009 to clarify that the Magistrates' Court cannot grant leave to cross-examine any witness in a proceeding that relates (wholly or partly) to a charge for a sexual offence if, when the criminal proceeding commenced, a complainant in relation to a charge for a sexual offence was a child or a person with a cognitive impairment.
This clarifies that cross-examination of a witness under this section cannot occur if the complainant is 18 years or older when the case reaches the committal stage, provided they were a child when the proceeding commenced.
Division 4—Ground rules hearings The amendments made by Division 4 to the Criminal Procedure Act 2009 address recommendation 84 of the VLRC Report.
Clause 68 substitutes the current definition of ground rules hearing in section 3 of the Criminal Procedure Act 2009 with "ground rules hearing has the meaning given by section 389AB". This consequential amendment reflects the insertion of new section 389AB by clause 70.
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Clause 69 substitutes section 389A(3) of the Criminal Procedure Act 2009 to extend the application of Division 1 of Part 8.2A to a complainant in relation to a charge for a sexual offence. Division 1 currently applies to a witness (including a complainant) other than the accused, in a proceeding referred to in section 389A(1) (which includes a proceeding that relates to a charge for a sexual offence), who is under the age of 18 years or has a cognitive impairment. The effect of the amendment is that Division 1 will also apply to an adult complainant in relation to a charge for a sexual offence.
The intention is for the ground rules hearing division to continue to apply in the same manner to the intermediaries scheme, as set out in Division 2 of Part 8.2A.
Clause 70 inserts new section 389AB after section 389A of the Criminal Procedure Act 2009.
New section 389AB explains the meaning of a ground rules hearing.
It provides that a ground rules hearing is a hearing at which the court considers the communication, support or other needs of a witness; and decides how the proceeding should be conducted to fairly and effectively meet those needs.
This definition is modelled on section 4AA of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
The words "or other needs" as used in new section 389AB(a) are intentionally broad and intended to address the variety of factors that may influence a person's ability to give their best evidence (e.g. the fact that sexual offence complainants may experience intimidation and distress when giving evidence).
By virtue of section 389A(4), witness as used in Division 1, means a witness referred to in section 389A(3) as substituted by clause 69.
Clause 71 amends section 389B of the Criminal Procedure Act 2009. Subclause (1) omits "under this Division." This is a consequential amendment following the insertion of new section 389AB by clause 70.
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Subclause (2) substitutes section 389B(3) of the Criminal Procedure Act 2009 to extend the circumstances in which a ground rules hearing must be held to include if a witness is a complainant in relation to a charge for a sexual offence.
Clause 72 repeals the note at the foot of section 389E(2)(f) of the Criminal Procedure Act 2009.
Subclause (2) inserts 2 notes at the foot of section 389E of the Criminal Procedure Act 2009 regarding directions which may be given at a ground rules hearing. Note 1 effectively replicates the note repealed by subclause (1).
New note 2 refers to section 41 of the Evidence Act 2008, which requires the court to disallow an improper question or improper questioning put to a witness in cross examination, or inform the witness that it need not be answered.
Division 5—Modernisation of references to chastity
Clause 73 amends section 341 of the Criminal Procedure Act 2009 to substitute existing references to a complainant's "chastity" with references to a complainant's "sexual reputation". This implements recommendation 89 of the VLRC Report, which was to modernise the language of the provision by replacing the word "chastity" with a neutral term.
Division 6—ASIC investigators witnessing statements
Clause 74 substitutes item 4 of Schedule 3 of the Criminal Procedure Act 2009 to permit staff members (within the meaning of the Australian Securities and Investments Commission Act 2001 of the Commonwealth) who are working at ASIC level 4 or higher (or an equivalent classification) in the Office of Enforcement or the Small Business, Engagement and Compliance area of the Australian Securities and Investments Commission (ASIC), to witness statements contained in a preliminary brief, full brief or hand-up brief. This amendment reflects that ASIC staff members are no longer officers of the Australian Public Service and ensures relevant ASIC staff members may witness Schedule 3 statements.
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Division 7—Transfer of summary offences
Clause 75 substitutes the definition of related summary offence in section 3 of the Criminal Procedure Act 2009 to include a summary offence which has been transferred from the Supreme Court to the County Court or from the County Court to the Supreme Court pursuant to new section 241A, as introduced by clause 79 of the Bill.
As a result of this amendment, the term now means a summary offence the proceedings for which have been transferred from—
• the Magistrates' Court to the Supreme Court or County Court under section 145; or
• the Supreme Court to the County Court under section 241A(1); or
• the County Court to the Supreme Court under section 241A(2).
This in turn means that section 242 of the Criminal Procedure Act 2009 applies to summary offences, the proceedings for which have been transferred under new section 241A. The Supreme Court or the County Court (as the case may be) can therefore hear and determine the summary charge separately to, or at the same time as, the indictable offence involving the same accused.
Clause 76 amends section 145(2) of the Criminal Procedure Act 2009 to provide that, in the circumstances outlined in paragraphs (a) and (b), the Magistrates' Court must transfer the related offence to the court "in which the accused is to be tried", rather than the court "to which the accused has been committed for trial".
This is required because, if an order has been made under section 167 of the Criminal Procedure Act 2009, the indictable offence will be tried in a different court to the one to which the accused was committed for trial. The amendment clarifies that the related offence must be transferred to the court in which the accused is to be tried, rather than the court to which the accused was committed for trial, so that it is able to be heard with the indictable offence.
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Clause 77 inserts a note at the foot of section 167 of the Criminal Procedure Act 2009. The note explains that, if an order is made under section 167(1) or (2), the Supreme Court has the power to transfer summary offences between itself and the County Court, as required, pursuant to new section 241A of the Criminal Procedure Act 2009. New section 241A is introduced by clause 79 of the Bill.
Clause 78 amends the heading to Division 1 of Part 5.8 of the Criminal Procedure Act 2009 to reflect that this Division now also relates to the transfer of charges for related and unrelated summary offences.
Clause 79 inserts new section 241A into the Criminal Procedure Act 2009 to provide for the transfer of summary offences between the Supreme Court and County Court if an order is made under section 167 of the Criminal Procedure Act 2009.
New section 241A(1) provides that, if an order is made under section 167(1), the Supreme Court may order that a proceeding in respect of a charge against the accused for a summary offence be transferred from the Supreme Court to the County Court.
New section 241A(2) provides that, if an order is made under section 167(2), the Supreme Court may order that a proceeding in respect of a charge against the accused for a summary offence be transferred from the County Court to the Supreme Court.
This amendment prevents proceedings involving a summary offence from being fragmented when an order under section 167 is made in respect of an indictable offence, by providing a power to transfer the summary offence to the same court as the indictable offence. Without this power, the summary offence must remain in the court to which the accused was committed for trial. Addressing this current deficiency in the Criminal Procedure Act 2009 allows section 167 to provide the intended case management flexibility to the Supreme Court and County Court.
Sections 242 and 243 of the Criminal Procedure Act 2009 remain the source of the Supreme Court and County Court's power to hear and determine related and unrelated summary offences that are before them.
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Division 8—Explanation of beyond reasonable doubt in general jury guide
Clause 80 amends section 223A(3)(b) of the Criminal Procedure Act 2009 to permit a general jury guide to include information about the meaning of the phrase "proof beyond reasonable doubt". This supports the amendments clause 57 makes to section 63 of the Jury Directions Act 2015 to require the trial judge to explain this phrase in all criminal trials, unless there are good reasons not to do so.
Division 9—Outdated cross-reference to persistent sexual abuse offence
Clause 81 is a statute law revision to clause 5(5) of Schedule 1 of the Criminal Procedure Act 2009 which corrects an outdated cross-reference by substituting "section 47A" with "section 49J".
Part 6—Confidential communications Part 6 amends the Evidence (Miscellaneous Provisions) Act 1958 to implement recommendations 25 and 44 of the VLRC's 2016 Report The Role of Victims of Crime in the Criminal Trial Process (VLRC Victims Report). These recommendations are repeated in recommendation 87 of the VLRC Report. Among other things, Part 6 will extend the current confidential communications protections in criminal proceedings to "protected health information". It will also strengthen procedural requirements to empower protected persons to participate in applications for leave to compel, produce or adduce a confidential communication or protected health information in a criminal proceeding. The amendments will give the protected person in criminal proceedings an automatic right to appear in an application for leave and will provide flexibility in how the protected person can appear, by permitting the provision of a confidential statement. It will also require the prosecuting party to ensure the protected person is notified of an application and provided with information, including a statement that they may wish to consider obtaining legal advice.
Clause 82 inserts definitions for applicant for leave, civil proceeding, confidential statement, held, protected health information and protected person into section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958.
Applicant for leave means a party that applies for leave under section 32C(1). This process is amended by clauses 84, 85 and 86.
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Civil proceeding means any proceeding in a court other than a criminal proceeding. This term is used in new sections 32C(1AA), 32CA and 32CB (to be inserted by clauses 84 and 85).
Confidential statement has the meaning given by new section 32CE(2) (to be inserted by clause 85).
Held in relation to protected health information has the meaning given by section 5 of the Health Records Act 2001. The definition is used in new section 32CC(d) (to be inserted by clause 85).
Protected health information has the meaning given by new section 32BA (to be inserted by clause 83). This term is used in new sections 32C(1AA), 32CC, 32CD, 32CE, 32CF and amended section 32D (to be inserted by clauses 84, 85 and amended by clause 86).
Protected person in relation to a confidential communication means the person who made the communication. In relation to protected health information, protected person means the person whom that information is about. The definition reflects the expansion of existing protections to include protected health information. This term is used in new sections 32CB, 32CD, 32CE (to be inserted by clause 85). It is used in substitution for the existing term protected confider in sections 32D, 32E and 32F (to be amended by clauses 86, 87 and 88).
Subclause (2) repeals the definition of protected confider from section 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958. This reflects the insertion of the new definition of protected person, which replaces the definition of protected confider in sections 32D, 32E, 32F (to be amended by clauses 86, 87 and 88).
Clause 83 inserts new section 32BA after section 32B of the Evidence (Miscellaneous Provisions) Act 1958. New section 32BA provides the meaning of protected health information. This is part of addressing recommendation 44 of the VLRC Victims Report as repeated in recommendation 87b of the VLRC Report, which provides that existing protections relating to a complainant's records should be extended to health information, as defined by the Health Records Act 2001 (Vic). Health information includes information or an opinion about a person's
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physical, mental or psychological health or disability, including those collected in providing a health service. New section 32BA identifies the health information that will be protected under the provisions as amended. This extended protection recognises and promotes the right to privacy and reputation under section 13 of the Charter of Human Rights and Responsibilities Act 2006 and prevents the misuse of health information in a criminal trial.
New section 32BA(1) provides that health information will be protected health information for the purpose of a proceeding if all of the following circumstances are met—
• The proceeding must be a criminal proceeding.
• The proceeding must relate (wholly or partly) to a charge for a sexual offence. Sexual offence is defined in section 32B of the Evidence (Miscellaneous Provisions) Act 1958 and means an offence to which clause 1 of Schedule 1 to the Sentencing Act 1991 applies.
• The health information must be about the person against whom that sexual offence is alleged to have been committed, or a person against whom any other sexual offence has been committed or is alleged to have been committed.
• The person who recorded or collected the information (or, if the information is an opinion, formed that opinion) must have done so in a professional capacity.
This may include health information about witnesses called to give tendency or coincidence evidence under Part 3.6 of the Evidence Act 2008 in the same way the definition of confidential communication may include communications made by tendency and coincidence witnesses.
The phrase "in a professional capacity" clarifies that the person must have been acting in their professional capacity when they recorded or collected the information or formed the opinion. This ensures that the types of information captured by this protection are limited to the types of records stipulated in both VLRC Reports, insofar as they relate to the health of the protected person. These include medical records (including those which do not fall within the definition of confidential
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communication), records held by government departments, records made by social workers and records held by specialist family violence services. This clarifies that information or an opinion from a lay person about a victim's appearance or general health will not be captured by this protection.
The phrase "in a professional capacity" is similarly used as a qualifier in other legislation, such as section 127(4) of the Evidence Act 2008 and section 389J(4)(b) of the Criminal Procedure Act 2009.
It is not a requirement for protected health information to be contained in a document.
New section 32BA(2) confirms that it does not matter whether the information was recorded or collected (or, if the information is an opinion, was formed) before or after the conduct constituting the sexual offence occurred or is alleged to have occurred. This mirrors the definition of confidential communication.
New section 32BA(3) provides that health information has the same meaning as in the Health Records Act 2001.
Clause 84 inserts new subsection (1AA) before section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 and amends the heading to section 32C to include "protected health information."
New subsection (1AA) clarifies that section 32C applies to the following information—
• in a civil proceeding, a confidential communication;
• in a criminal proceeding, a confidential communication or protected health information.
This provides that health information is not protected in civil proceedings.
Subclause (3) amends sections 32C(1)(a) to (c) of the Evidence (Miscellaneous Provisions) Act 1958 to replace "a confidential communication" with "information to which this section applies." This accommodates the insertion of new subsection (1AA) and recognises the expansion of protected evidence to include protected health information.
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Subclause (4) amends section 32C(1) of the Evidence (Miscellaneous Provisions) Act 1958 to substitute "has given notice of their intention in accordance with subsection (2)" with "has complied with the requirements under section 32CA or 32CC (as the case requires) that are not waived." This reflects the repeal of section 32C(2) by subclause (4), and the insertion of new sections 32CA and 32CC by clause 85.
Subclause (5) repeals sections 32C(2) to (6) of the Evidence (Miscellaneous Provisions) Act 1958, which outline the current notice requirements for when a party makes an application for leave; and replaces these sections with new sections 32CA to 32CF in clause 85. These accommodate the inclusion of protected health information and the new procedural requirements in criminal proceedings.
Clause 85 inserts new sections 32CA to 32CF after section 32C of the Evidence (Miscellaneous Provisions) Act 1958. As the VLRC recommendations are confined to criminal proceedings, these sections separate out the procedural requirements for civil proceedings and criminal proceedings.
New section 32CA—Applicant for leave must give notice—civil proceedings
New section 32CA provides the notification requirements in civil proceedings. These requirements are the same as in repealed section 32C(2) to (3) insofar as those provisions applied to civil proceedings. New section 32CA(1) lists the parties to whom an applicant for leave in a civil proceeding must give written notice of their intention to apply for leave under section 32C(1). They are—
• each other party; and
• the medical practitioner or counsellor to whom the confidential communication was made.
New section 32CA(2) provides that the applicant for leave must give notice to the abovementioned persons no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.
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New section 32CA(3) confirms that the court may fix a period of notice shorter than 14 days, or may waive the requirement to give notice to each other party or the medical practitioner or counsellor to whom the confidential communication was made. This provides the court with flexibility to shorten the notice period or waive the notice requirement when it considers it appropriate to do so. This operates the same way as repealed section 32C(3).
New section 32CB—Persons other than parties appearing and making submissions as to leave—civil proceedings
New section 32CB provides that in an application for leave under section 32C(1) in a civil proceeding the following persons may, with the leave of the court, appear and make submissions—
• the protected person;
• the medical practitioner or counsellor to whom the confidential communication was made.
This confirms that these persons must seek leave of the court if they wish to appear and make submissions. This is the same requirement as in repealed section 32C(5) insofar as it applied to civil proceedings.
New section 32CC—Applicant for leave must give notice— criminal proceedings
New section 32CC(1) lists to whom an applicant for leave in a criminal proceeding must give written notice of their intention to apply for leave under section 32C(1). They are—
• each other party; and
• the informant; and
• if the notice relates to a confidential communication— the medical practitioner or counsellor to whom that communication was made; and
• if the notice relates to protected health information— whichever of the following entities the applicant for leave considers appropriate—
• the person who recorded or collected the information (or if the information is an opinion, formed that opinion); or
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• if the information is held by an organisation— that organisation.
The provision allows for flexibility regarding who to notify if the notice relates to protected health information by ensuring that if the individual who recorded or collected the health information (or if the health information is an opinion, formed the opinion) no longer works at the relevant organisation or is unavailable, the applicant can direct the notice to the organisation that holds the health information.
The definition of held, inserted by clause 82, provides that an organisation holds health information if that information is contained in a document in the possession or control of that organisation. It confirms that it may be held jointly with other persons or bodies, and may be situated outside of Victoria. It is intended that although the same information may be held by multiple entities, the notice only needs to be provided to the most relevant entity as determined by the applicant for leave. In some circumstances, it may be appropriate to direct the notice to both an individual and an organisation.
New section 32CC(2) provides that the applicant for leave must give notice under new section 32CC(1) no less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced.
New section 32CC(3) provides that if the court considers it in the interest of justice to do so, it may—
• fix a period of notice shorter than that referred to in new section 32CC(2); or
• waive a requirement to give notice to a person or organisation referred to in new section 32CC(1)(c) or (d).
A consequence of fixing a shorter notice period is that the protected person's notice period as provided in new section 32CD will also be reduced. This provides the court with discretion to respond to various circumstances that may arise during a criminal proceeding, without waiving the notification requirement altogether.
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The court cannot waive the requirement to notify another party or the informant. This will ensure that the subsequent obligation to notify the protected person in new section 32CD arises.
New section 32CD—Prosecuting party to ensure notice is given to protected person—criminal proceedings
New section 32CD(1) provides that if an application for leave under section 32C(1) is made in a criminal proceeding, the prosecuting party must ensure that written notice of the application is given to the protected person. This is subject to the exceptions outlined in new section 32CD(5) and is subject to court oversight as provided in amended section 32D in clause 86.
While prosecuting party is an undefined term, it relies on the common understanding of the words—i.e. the party to the proceeding that is prosecuting the charge, as opposed to defending it. The prosecuting party is generally the informant in the summary courts and the Director of Public Prosecutions in the higher courts—it depends on the type of matter and the stage of proceedings. The obligation on the prosecuting party is to ensure that notice is given to the protected person. This allows flexibility by permitting the informant (or another appropriate person) to give the notice to the protected person while the prosecuting party maintains oversight of the process—the prosecuting party can ensure notice is given to the protected person in the manner they see fit. For example, if a matter has been committed for trial, the informant may notify the protected person but the Director of Public Prosecutions (as the prosecuting party at that stage of the proceeding) will be responsible for ensuring this is done.
New section 32CD(2) provides that the prosecuting party must ensure that notice is given under new section 32CD(1) within a reasonable time of the prosecuting party either giving or receiving notice of the application for leave under section 32CC(1).
New section 32CD(3) provides that the prescribed notice under new section 32CD(1) must contain the matters specified in new section 32CD(4) and must be in the form prescribed by the rules of the court.
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New section 32CD(4) lists the matters which must be included in the notice to be provided to the protected person. These are—
• a statement that the protected person may appear in the proceeding, make submissions on the application, and give a confidential statement; and
• an explanation of how new section 32CE(3) and (4) apply to a confidential statement. New section 32CE(3) and (4) provide for disclosure of the confidential statement if the court considers that is in the interests of justice to do so; and
• a statement that the protected person may wish to consider whether to obtain legal advice in relation to the application; and
• information about the availability of legal advice in relation to the application. This may include details of available, publicly funded or pro bono legal services (for example if a victim legal service is established in the future). It will not prevent the protected person from seeking private legal advice or require the notice to include all types of legal advice that may be available to them.
This addresses recommendation 25a of the VLRC Victims Report, by requiring the prosecution to notify the protected person of their right to appear, the availability of legal assistance and the right to provide a confidential statement.
New section 32CD(5) provides that the court may waive the above notice requirements if it is satisfied that one of the following applies—
• The prosecuting party has taken all reasonable steps to locate the protected person, but has not located them.
• The protected person has consented in writing to not being notified about an application for leave under section 32C(1). This allows a protected person to provide consent at an earlier stage of the proceeding, before an application is made and is consistent with the approach in section 299C(5)(b) of the Criminal Procedure Act 1986 (NSW).
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• The protected person has already been given notice under new section 32CD(1)—
• in respect of the same confidential communication or protected health information which the proceeding relates to; and
• in the same proceeding as that in which the application is made.
This is intended to avoid unnecessary duplication and delay in circumstances where applications to compel, produce and adduce are heard in close succession. A similar mechanism is used in section 299C(5)(a) of the Criminal Procedure Act 1986 (NSW).
It is intended that the court may accept informal acknowledgment from the prosecuting party regarding the above factors. For example, the prosecuting party may provide a submission from the bar table or through a court form rather than sworn evidence.
New section 32CE—Persons other than parties appearing and making submissions as to leave—criminal proceedings
New section 32CE(1) provides that in an application for leave under section 32C(1) in a criminal proceeding, the protected person may appear, make submissions and give a statement in accordance with new section 32CE(2).
This confirms that the protected person has an automatic right to appear and make submissions, without seeking leave of the court. This addresses recommendation 25d of the VLRC Victims Report as repeated in recommendation 87a of the VLRC Report.
New section 32CE(2) provides that the protected person may give the court, by affidavit, a confidential statement describing the harm that is likely to be caused to them if the application is granted.
This implements recommendation 25e of the VLRC Victims Report as repeated in 87a of the VLRC Report. This is intended to empower the protected person to participate in the proceedings in a discrete and sensitive manner. It provides flexibility in how the protected person can participate.
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New section 32CE(3) provides that a court must not make a confidential statement available, or disclose its contents, to anyone but the protected person or their legal representative, except in accordance with new section 32CE(4). This confirms that this section does not operate as a blanket prohibition on disclosure of the confidential statement.
New section 32CE(4) provides a limited exception for disclosure of a confidential statement. The court may make the whole or part of the confidential statement available to a person other than the protected person or their legal representative if the court considers it is in the interests of justice to do so. This exception is intended to be limited in scope, allowing the court to disclose parts of the confidential statement, where necessary, to ensure the accused receives a fair trial. The "interests of justice" test requires the court to consider not just the interests of the parties, but larger questions of legal principle, the public interest and policy considerations.
New section 32CE(5) provides that if an application relates to a confidential communication, the medical practitioner or counsellor may appear and make submissions, with leave of the court. This confirms that, in relation to a confidential communication, standing is not an automatic right for the medical practitioner or counsellor and they must seek leave to appear and make submissions.
New section 32CE(6) provides that if an application relates to protected health information, the person who has received the notice (in accordance with new section 32CC(1)(d)) may appear and make submissions, with the leave of the court. This confirms that, in relation to protected health information, standing is not an automatic right for the recipient of the notice and they must seek leave to appear and make submissions.
The recipient of the notice may either be the person who recorded or collected the information, or formed the opinion, or a representative from the organisation that holds the information.
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New section 32CF—Production of document for purposes of determining application for leave
New section 32CF(1) provides that the court may order that a document (containing either a confidential communication or protected health information) be produced for inspection in order to determine—
• an application for leave under section 32C(1); or
• an application for leave under new section 32CB or 32CE(5) or (6) that is made in the course of an application for leave under section 32C(1).
That is, the court continues to have discretion to consider the contents of a document before determining an application for leave to compel, produce or adduce that document.
New section 32CF(2) confirms that if the document is produced for the purposes of determining an application for leave, the court must not make the document available or disclose its contents to the party that applied for leave under section 32C(1).
Clause 86 makes a consequential amendment to section 32D(1)(c) of the Evidence (Miscellaneous Provisions) Act 1958 to insert "and protected health information" after "confidential communications." This recognises the expansion of the existing protection relating to confidential communications to include protected health information.
Subclause(1)(b) amends section 32D(1)(c) of the Evidence (Miscellaneous Provisions) Act 1958 to replace "protected confider" with "protected person." This reflects the repeal of the definition of protected confider by clause 82.
Subclause (2) inserts new section 32D(1A) after section 32D(1) of the Evidence (Miscellaneous Provisions) Act 1958.
New section 32D(1A) outlines the restrictions that apply to the court's decision to grant leave. It provides that in a criminal proceeding, a court must not grant leave described in section 32D(1) unless it is satisfied that—
• the protected person is aware of the application for leave and has had a reasonable opportunity to consider obtaining legal advice about the application; or
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• the prosecuting party has been unable to locate the protected person, after ensuring all reasonable steps were taken to locate them; or
• the protected person has consented in writing to not being notified about the application for leave under section 32C(1); or
• the protected person has already been given notice under section 32D—
• in respect of the same confidential communication or protected health information which the application relates to; and
• in the same proceeding as that in which the application is made.
This addresses recommendation 25a to 25d of the VLRC Victims Report as repeated in recommendation 87a of the VLRC Report, by strengthening procedural requirements to ensure the complainant is aware of the application for leave and is provided notice regarding their rights in relation to this.
New section 32D(1A)(d) is intended to reduce unnecessary duplication and delay, while ensuring that the protected person is provided with the prescribed notice.
Subclause (3) amends section 32D(2)(a) and (e) of the Evidence (Miscellaneous Provisions) Act 1958 by replacing "protected confider" with "protected person." This reflects the repeal of the definition of protected confider by clause 82.
Subclause (4) amends section 32D(3)(a) and (b) of the Evidence (Miscellaneous Provisions) Act 1958 by inserting "protected health information" after "a confidential communication." This recognises the expansion of the existing protection relating to confidential communications to include protected health information.
Clause 87 amends section 32E(1)(a) and (b) of the Evidence (Miscellaneous Provisions) Act 1958 to replace "protected confider" with "protected person." This reflects the repeal of the definition of protected confider by clause 82.
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Subclause (2) amends section 32E(1)(b) of the Evidence (Miscellaneous Provisions) Act 1958 to replace "the sexual offence" with "an offence against the protected person". This recognises the expansion of the provisions to include protected health information by ensuring that information acquired by a registered medical practitioner during a physical examination of the protected person in relation to the commission of any offence against the protected person, will not be prevented from use by section 32C.
For example, this will apply in circumstances where the criminal proceeding relates to an assault offence and a sexual offence where the protected person receives medical treatment following the assault only. This ensures that the information acquired by the registered medical practitioner during the physical examination will not require an application for leave under section 32C to be compelled, produced or adduced in that criminal proceeding, recognising the probative value of this evidence and confirms the importance of its early disclosure to the accused.
Clause 88 Subclause (1) amends section 32F(b) of the Evidence (Miscellaneous Provisions) Act 1958 to replace "of the protected confider or registered medical practitioner or counsellor, as the case requires; or" with "of—
• the protected person; or
• a person to whom notice was required to be given under section 32CA(1)(b) or section 32CC(1)(c) or (d) (whether or not that requirement was waived); or".
This reflects the repeal of the definition of protected confider by clause 82 and the expansion of the provisions to include protected health information. This allows the court to make any ancillary orders in accordance with section 32F(b) to protect the person who recorded or collected the protected health information (or if the health information is an opinion, formed the opinion).
Subclause (2) makes consequential amendments to section 32F(c) of the Evidence (Miscellaneous Provisions) Act 1958 to substitute "protected confider or the safety of the registered medical practitioner or counsellor" with "protected person or safety of a person referred to in paragraph (b)(ii)". This reflects
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the repeal of the definition of protected confider by clause 82 and the expansion of the provisions to include protected health information. This allows the court to make any ancillary orders in accordance with section 32F(c) to protect the person who recorded or collected the protected health information (or if the health information is an opinion, formed the opinion).
Part 7—Extension of temporary provisions
Division 1—Amendment of Court Security Act 1980
Clause 89 amends section 7A(4) of the Court Security Act 1980 to extend the operation of the temporary measures regarding the response to the COVID-19 pandemic until 26 October 2023.
Division 2—Amendment of Open Courts Act 2013
Clause 90 amends section 8B of the Open Courts Act 2013, which is a clarifying provision which provides that a court or tribunal does not contravene any rule of law relating to open justice where, instead of holding a proceeding or hearing in open court, it—
• arranges or provides a contemporaneous audio or audio visual public broadcast of the proceeding or hearing; or
• arranges or provides, within a reasonable time after the conclusion of the proceeding or hearing, an audio or audio visual recording (or transcript in the case of the Supreme Court, County Court or Coroners Court) of the proceeding or hearing, to the public generally or to a member of the public on request.
Subclause (1) amends the chapeau to section 8B(1) to include an interests of justice requirement. There is an inherent interests of justice rationale in the current provision—the Bill simply makes this clear.
This will provide that a court or tribunal does not contravene any rule of law relating to open justice if, instead of holding a proceeding in a court room or hearing room that is open to the public, it arranges or provides whichever of the methods of public access set out in paragraphs (a) to (c) that the court or tribunal is satisfied it is in the interests of justice to do.
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Subclauses (2) to (4) make grammatical amendments to section 8B(1)(a) to (c) as a consequence of the amendment to section 8B(1) above.
Subclause (2) substitutes the reference to "arranges and provides" with "arranging and providing" and omits the word "or" after the semicolon in paragraph (a).
Subclause (3) substitutes the reference to "arranges and provides" with "arranging and providing" in paragraph (b) and omits the word "or" after the semicolon in paragraph (b)(ii).
Subclause (4) substitutes the reference to "arranges and provides" with "arranging and providing" in paragraph (c).
Subclause (5) amends section 8B(3) to extend the operation of section 8B until 26 October 2023.
Part 8—Miscellaneous and transitional provisions
Clause 91 makes amendments to the Crimes Act 1958.
Subclauses (1) and (2) make minor technical amendments to sections 35(1) and 464ZFAB(11)(b) to address typographical errors.
Subclause (3) inserts new section 638 in the Crimes Act 1958. New section 638 provides that, despite section 626(1) of that Act, the repeal of section 37AAA(e) of the Crimes Act 1958 by section 7(3) of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 has effect for the purposes of a proceeding that commences on or after the commencement of Division 1 of Part 4 of this Bill, irrespective of when the offence to which the proceeding relates is alleged to have been committed. The effect of new section 638 is that the direction under previous section 37AAA(e) will no longer be relevant to any such proceeding.
Section 37AAA(e) was repealed in 2014 but continues in effect by virtue of section 626, which provides that the repeal of section 37AAA(e) (which contained a jury direction on matters the jury is not to have regard to when considering whether the person freely agreed to a sexual act) only applies in relation to offences that are alleged to have been committed on or after 1 July 2015. However, this is no longer required, as the effect of the jury direction in previous section 37AAA(e) will be available in new Division 1A of the Jury Directions Act 2015, which will apply
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irrespective of when the offence in question was alleged to have occurred.
Subclause (3) also inserts new section 638A. New section 638A(1) provides that an amendment made by Part 2 of this Bill (Consent) only applies to offences alleged to have occurred after the commencement of that provision. New section 638A(2) clarifies that if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of the provision, the offence is alleged to have been committed before that commencement.
Clause 92 inserts new section 462 into the Criminal Procedure Act 2009. This is a transitional provision.
New section 462(1) provides that section 7B of the Criminal Procedure Act 2009 (Uncertainty about time when sexual offence occurred), as inserted by this Bill, does not apply to a trial that commences before 1 January 2023.
New section 462(2) provides that an amendment to section 119, 124, 132 or 132A of the Criminal Procedure Act 2009 (which relate to pre-trial examination) by a provision of Division 2 of Part 5 of this Bill, applies to a committal proceeding in which no committal mention hearing or committal hearing has been held before the day on which that provision of this Bill comes into operation, irrespective of when the committal proceeding commenced.
New section 462(3) provides that section 124A of the Criminal Procedure Act 2009 (which relates to leave to cross-examine), as inserted by this Bill, applies to a committal proceeding in which no committal mention or committal hearing has been held before the day on which that section is inserted, irrespective of when the committal proceeding commenced.
New section 462(4) provides that section 198A of the Criminal Procedure Act 2009 (which relates to orders to cross-examine), as amended by this Bill, applies to a criminal proceeding in which an application under that section has not yet been determined before the day on which that section is amended, irrespective of when the criminal proceeding commenced.
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New section 462(5) provides an amendment made by a provision of Division 4 of Part 5 of this Bill (relating to ground rules hearings), applies only to a trial that commences on or after the day on which that provision comes into operation. The intention is to not affect proceedings that have already commenced.
New section 462(6) provides an amendment made by a provision of Division 7 of Part 5 of this Bill (transfer of summary offences) applies on and from the commencement of that provision to a criminal proceeding, irrespective of—
• when the criminal proceeding commenced; or
• whether an order was made under section 167 in the criminal proceeding before the commencement of that provision.
Clause 93 makes amendments to the Evidence (Miscellaneous Provisions) Act 1958.
Subclause (1) amends the heading to Division 2A of Part II of that Act to reflect the changes made to that Division by Part 6 of the Bill.
Subclause (2) makes a technical amendment to section 42F(7) to address a typographical error.
Subclause (3) inserts new section 168. This is a transitional provision.
New section 168(1) provides that, except as otherwise provided by new section 168, on and after the commencements of the amendments to Division 2A of Part II made by this Bill, that Division, as so amended, applies to a proceeding irrespective of when the proceeding commenced.
New section 168(2) provides that in a proceeding that commenced before the commencement of the amendments made to Division 2A of Part II of the Evidence (Miscellaneous Provisions) 1958 by this Bill, no information constitutes protected health information for the purposes of that Division.
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New section 168(3) provides that on and after the commencement of the amendments to Division 2A of Part II made by this Bill, that Division as in force immediately before that commencement continues to apply, despite those amendments, to—
• an ongoing application for leave under section 32C; and
• the evidence to which that application relates.
New section 168(4) provides that, for the purposes of new section 168(3), an application for leave under section 32C(1) of that Act is ongoing if—
• notice was given in respect of that application in accordance with section 32C(2) as in force immediately before the commencement of the amendments to section 32C made by this Bill; and
• the application was not determined before that commencement.
Clause 94 inserts new clause 6 into Schedule 1 to the Jury Directions Act 2015.
New clause 6(1) provides that an amendment made to the Jury Directions Act 2015 by a provision of Part 2 of this Bill (Consent) applies to—
• a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 2 of this Bill; or
• a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) of the Jury Directions Act 2015 for which the specified day is on or after the commencement of that provision of Part 2 of this Bill—
if the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed on or after the commencement of that provision of Part 2.
New clause 6(2) provides that an amendment made to section 46 or 47 of the Jury Directions Act 2015 by a provision of Part 4 of this Bill (Jury Directions) applies to—
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• a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4; or
• a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) of the Jury Directions Act 2015 for which the specified day is on or after the commencement of that provision of Part 4—
if the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed on or after the commencement of that provision of Part 4.
New clause 6(3) provides that, for the purposes of new clause 6(1) and (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of either—
• a provision of Part 2 of this Bill; or
• a provision of Part 4 of this Bill—
it is alleged to have been committed before that commencement.
New clause 6(4) provides that an amendment made to the Jury Directions Act 2015 (other than to section 46 or 47) by a provision of Part 4 of this Bill applies only to—
• a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4 of this Bill; or
• a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) of the Jury Directions Act 2015 for which the specified day is on or after the commencement of that provision of Part 4 of this Bill.
New clause 6(5) provides that in new clause 6 specified day means—
• for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and
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• for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the hearing from which the question of law arises; and
• in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).
Part 9—Repeal of this Act
Clause 95 provides that this Act is repealed on 30 July 2024.
The note at the foot of clause 95 clarifies that the repeal of this Act does not affect the continuing operation of the amendments made by it and refers to section 15(1) of the Interpretation of Legislation Act 1984.