Criminal Law Changes Commence in ACT: Including Response to Child Abuse Report

The Crimes Legislation Amendment Act 2018 (6 of 2018) (ACT) (the "Act") was notified on 1 March 2018 and commenced operation on 2 March 2018 - apart from sections 32 to 36 which commence on 1 September 2018. The Act was introduced into the Australian Capital Territory's Legislative Assembly in 2017 as the Crimes Legislation Amendment Bill 2017 (No 2) (ACT).

In the second reading speech to the ACT's Legislative Assembly, the Attorney General stated that the Act makes  ". . . a number of substantive, positive changes to ACT criminal laws". Importantly, the Act implements a number of the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (the "Commission"), among other key measures.

Key Areas of Amendment

The Act makes a number of important amendments, which are summarised as follows:

(a) amendment of section 56 of the Crimes Act, relating to maintaining a sexual relationship with a young person, so that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence. This, the Attorney-General indicated, will enable  repeated but largely indistinguishable occasions of child sexual abuse to be charged effectively;

(b) amendment of section 66 of the Crimes Act,  which deals with using the internet etc to "deprave young people", to create two new "grooming offences" to criminalise the non-electronic grooming of a child and grooming of persons other than a child;

(c) minor amendments to the Crimes Act so that section 65(3) refers to "child exploitation material" rather than "child pornography", making it consistent with the rest of the Act;

(d) amendment of section 34 of the Crimes (Sentencing) Act 2005 (the "Crimes (Sentencing) Act"), which deals with sentencing and irrelevant considerations, to exclude good character as a mitigating factor in sentencing for child sexual abuse offences where that good character “enabled” the offending;

(e) amendment of the Crimes (Sentencing) Act so that an offender cannot be concurrently subject to a good behaviour order and a parole order;

(f) amendment of the Criminal Code 2002 ("the Criminal Code") to provide that the offence of incitement, referred to in section 47(1), includes an offence a person is taken to have committed pursuant to section 45 of the Criminal Code; and

(g) amendment of the Magistrates Court Act 1930 (the "Magistrates Court Act") to allow "circle sentencing" in the Children's Court.

Changes Flowing from Commission's Recommendations 

The ACT Attorney General stated in the second reading speech to the Legislative Assembly, that the amendments giving effect to the commission's recommendations are:

The Act amends section 56 of the Crimes Act to provide that the most serious instances of sustained and ongoing child abuse are to be prosecuted. This amendment gives effect to the "model provision" recommended by the commission. The model provision recommends that the "criminal act" is constituted by an ongoing unlawful sexual relationship rather than individual sexual acts. This change allows for prosecution in a manner consistent with the ways in which victims remember abuse and has retrospective effect in recognition of the fact that delay is a typical, rather than a peculiar, feature of child sexual abuse. The effect is that perpetrators of sexual abuse will not be able to avoid prosecution by ". . . trying to pick apart individual acts or memories" (second reading speech).

The Act also amends section 66 of the Crimes Act with regard to grooming offences. Grooming has been described as the preparatory stage of child sexual abuse where an adult gains the trust of a child, and perhaps other people of influence in the child's life, in order to take sexual advantage of the child. This amendment adopts the recommendations of the commission to create two new grooming offences, which now capture any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence. The amendments also extend the grooming offence to grooming people other than the child, an example being conduct such as encouraging an adult responsible for the child to leave the child alone with the accused.

The Act also makes amendments to section 34 of the Crimes (Sentencing) Act  to exclude good character as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending. One example of this, as is often the case in institutional settings, is where the good character of the offenders and the position of trust and authority that they hold allow them to perpetrate child exploitation and groom other adults to facilitate access to children. The amendment takes account of section 33 of the Crimes (Sentencing) Act, which sets out relevant sentencing considerations, meaning an offender's good character can still be taken into consideration by a sentencing court when assessing factors such as the offender's prospects of rehabilitation or re-offending.

Amendments Focused on Aboriginal and Torres Strait Islander Youth Justice

The Act amends the Magistrates Court Act 1930 to expand the jurisdiction of the Children's Court to allow "trying to pick apart individual acts or memories" to occur for Aboriginal and Torres Strait Islander children in the criminal justice system. 

Circle sentencing is an alternative sentencing court for adult Aboriginal offenders, which directly involves local Aboriginal people in the process of sentencing offenders. The aim of circle sentencing is to make sentencing more meaningful and improving confidence in the criminal justice system.

Currently in the ACT, children are precluded from appearing before the Galambany court. Allowing the circle sentencing process to apply to Aboriginal and Torres Strait Islander children is intended to give the ACT Aboriginal and Torres Strait Islander community an opportunity to work collaboratively with the ACT criminal justice system to address over-representation issues and offending behaviour.

Amendments Responding to Recent Court Outcomes

The Act addresses the issues raised by the recent High Court Case of  The Queen v Holliday [2017] HCA 35. In this case, it was exposed that there was a lack of an offence of "incitement or procuring kidnapping", a gap which is now filled by the provisions of the Act.

This Act further responds to issues raised with respect to the way court sentences interact with parole orders. In the case of Peter v Wade [2017] ACTSC 122, ACT Chief Justice Murrell stated that, where a good behaviour order runs concurrently with a parole order, there is potential for conflict between decisions made by the executive and the judiciary, leading  to confusion and inefficiency in the sentence administration process. The Act is intended by the ACT Government to address the problem by way of amendments that ensure that a good behaviour order and a parole order cannot be served concurrently.

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Crimes Legislation Amendment Act 2018 (6 of 2018) [ACT] and Crimes Legislation Amendment Bill 2017 (No 2) and supporting materials as reported in the TimeBase LawOne Service.

Peter v Wade [2017] ACTSC 122.

The Queen v Holliday [2017] HCA 35.