Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to speak on the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024. This bill amends the Crimes Act 1914 to modify rules of evidence and procedure that apply to sexual offences under Commonwealth law and picks up on exposure draft legislation originally developed by the coalition towards the end of the 46th Parliament during my tenure as Attorney-General. I am pleased to see the government is yet again building on the coalition's good record. Indeed, this bill is in the same vein as measures first introduced by the Howard government in 2001 to protect children in proceedings for sexual offences and is similar to legislation supported by the coalition in 2013.

The bill itself makes technical and procedural changes to the way prosecutions are conducted in the Commonwealth jurisdiction. It does not deal with the prosecutions under state and territory laws which govern the majority of cases in which sexual offences come before a court. At a high level, the bill does four things. First, it expands the range of offences in which courts adopt special rules for dealing with sexual offences. Second, it changes the rules of admissibility in relation to sexual reputation and sexual experience—and, subject to what I will say shortly, these changes are in a similar vein to state and territory laws. Third, the bill allows the court to make orders allowing a person's evidence about an alleged sexual offence to be recorded at a special 'evidence recording hearing'. It also requires evidence given from a child, vulnerable adult or special witness to be recorded if the evidence is given outside such a hearing. Fourth, the bill makes clear that the current restriction on publishing material that identifies a person as a child witness, complainant or vulnerable adult complainant does not apply to self-identifying material.

The four matters I have just spoken to are broadly consistent with coalition positions, so we will be supporting the bill. I say quite clearly that there has never been doubt about the actual intention of this bill. We have said from the very beginning, as the Attorney-General knows, that we, as the coalition, support the intent of this legislation. However, yet again, as with so many bills—in fact, I would say it is now almost every bill the Attorney-General brings before the Australian parliament—the sloppy drafting but in particular the extraordinary failures of drafting procedure and process that are inherent in this particular bill would, if passed in its current form, have devastating consequences.

I'll go to the Attorney-General's sloppiness in the drafting. When the bill was introduced into the House, this is what we said:

Initial feedback from stakeholders is that these measures are broadly in line with criminal procedure provisions in the various state and territory jurisdictions. However, the bill is technical in nature, and a close analysis is warranted, informed by the expertise of the legal profession.

It behoves all of us to 'allow the legal profession and other stakeholders to provide input through a parliamentary committee process' so that we can have comfort the bill is adapted to the same problem it seeks to address. It is a good thing that we did this, because, colleagues, had we not, this chamber would have come perilously close to passing a bill that would have made it impossible to secure convictions for serious child sex offences in a court of law. This is because of simple process failures, basic errors in drafting, which are, sadly, typical of this government, but more typical of this Attorney-General's approach to legislation, an approach that is yet again—more and more stakeholders are now saying—characterised by sloppiness, arrogance and recklessness. Once again, it is only through Senate scrutiny that we're avoiding potentially disastrous outcomes through the courts.

For anyone listening to this debate or, alternatively, reading Hansard, it's important that I set out how deeply flawed this bill was when it was introduced by the Attorney-General, because it explains our position and our second reading amendment. Importantly, it is only through scrutiny from both the opposition and the crossbench—but unfortunately, yet again resisted by government—that we have, indeed, now avoided what would have been serious adverse consequences. I would encourage all crossbenchers to support the coalition's second reading amendment.

The issue is that the Attorney-General in this bill decided he wanted to restrict the ability to admit evidence of the sexual experience of children and vulnerable adults. This is perhaps a laudable intention in some circumstances. We certainly don't want children who have been abused to be traumatised by a court process. In fact, I would say no-one does. But, unfortunately, because of the sloppiness, there were basic errors. By accident, the provisions of the first draft would have made it impossible to prove a whole range of child sexual offences.

This is not just the coalition's position. This is the position of Professor Jeremy Gans, a respected and fiercely independent criminal law professor at the University of Melbourne. It is the position of Liberty Victoria, representing the legal profession in the Attorney-General's, Mr Dreyfus's, home state of Victoria. The concerns expressed by these groups are reflected in the submissions made by a number of groups across the legal profession who are worried about the Attorney-General's reckless approach to what a court should and should not be allowed to hear. But the problem isn't just the recklessness of the Attorney in the approach. It was also the laziness of avoiding an exposure draft, the arrogance of tabling explanatory materials that have been described as misleading or inaccurate and the riskiness of trying to shut down scrutiny in this place, as, unfortunately, the Albanese Labor government so often does.

Professor Gans's submission to the Legal and Constitutional Affairs Committee on the bill is damning. It's too long to read in full, though I would encourage anybody who is interested in this debate or who is reading this speech in the Hansard to download it from the committee's website and go through it in some detail. Professor Gans sets out six different areas where the government's explanatory materials were actually misleading. That is quite extraordinary. But then, far more seriously, Professor Gans outlines how the bill as drafted would prevent the court from receiving evidence necessary to secure a conviction for serious child sex offences.

To summarise, the bill that was introduced into this place would have made it impossible to prove an offence, under section 272.8 of the Criminal Code, for causing a child to engage in sexual intercourse in the presence of the defendant. The technical reason is that the bill, as introduced, prohibited evidence about 'sexual experience' with anyone other than a defendant unless that person is a party to the proceeding. But sexual experience is not reputation.

Evidence of sexual experience can be—and, in a court, all too often is—evidence about sexual abuse. Often, the person doing the abusing is not the person who has been charged. In the disturbingly common situation where a person procures a child to have sexual intercourse with someone else but where that other person is unknown, courts, under the Attorney-General's bill, would have been absolutely prohibited from admitting evidence that proved the offence. Under Mr Dreyfus's law as first drafted, that person—the person who was actually procuring the child, grooming the child and, in layman's terms, pimping the child—would have actually got off scot-free. Similarly, in a prosecution under section 474.25A(2) of the Criminal Code, which is about causing a child to engage in sexual activity with another person using a carriage service, the prosecution would have failed under the bill that Mr Dreyfus introduced into the parliament for the same reason—that the Attorney-General accidentally made a rule that would have prohibited a prosecutor from introducing evidence necessary to prove the offence.

Under Mr Dreyfus's law as initially tabled in this place, the pervert who goes onto the dark web to pay for a child overseas to be abused is able to walk away in the safe knowledge that they won't be convicted. Unless the actual abuser is in court at the same time—which anyone who understands these offences knows does not happen when the abuse is online—the child couldn't tell the court what happened even if they wanted to. Again, under Mr Dreyfus's version of the bill as it was introduced into the parliament, unless they were co-defendants in a proceeding, people who aid or abet the sexual abuse of a child—and I put it to this chamber that that is possibly one of the most horrific crimes, if not the most horrific crime, that could be committed—could not be convicted under the bill. Again, this is a basic mistake but, at the same time, a staggering failure.

The bill that Mr Dreyfus introduced into this place risked becoming a get-out-of-jail-free card for serious child sex offences and sexual offences involving vulnerable adults. As has been put to me by people in the legal profession, this is, quite frankly, an indictment on the Attorney-General of Australia. I am not saying that he did this on purpose, and, certainly, no-one in this place believes those outcomes are desirable. But, quite frankly, as the first law officer of this nation, I think it's worse than that: the government and its Attorney-General did not understand the impact of their own legislation. It was lazy and sloppy drafting, and they tabled it in the parliament. The Labor government were too arrogant to run an exposure draft, as people had asked for, during this process. They chose not to consult sufficiently and recklessly decided to introduce the legislation anyway.

This Attorney-General was risky, pushing to both contain and limit the committee inquiry that—thank goodness—exposed the problem. I use the words 'recklessness' and 'arrogance' deliberately—ones those on the other side like to throw around. The piece of legislation that would have gone through had the coalition, the crossbench and stakeholders not bothered to read the bill, understand it and understand the flaws in it—that is the height of arrogance quite frankly. But worse than that, for vulnerable children it is, quite frankly, reckless and arrogant.

If this were a one-off issue, you might say it was a mistake. But the problem is because they are reckless about what their laws actually do, and because they are so arrogant that they never want to consult or allow basic scrutiny, time and time again we are now seeking mistakes in the legislation that is drafted—in particular, by this Attorney-General—that need to be cleaned up. As a first example, it was this government last year that got the legislation wrong and actually made it a criminal offence, if we recall that, for bosses to call their employees after hours. They didn't care. They put the legislation through and then we had to go and clean that mess up again. Secondly, in 2023 they got the legislation wrong and accidentally made children the subject of ongoing litigation in family law disputes. Again, we had to clean that mess up. A judge in our family law courts even found himself saying 'the express drafting of the statute conflicts with its intended purpose'. This is no longer a one-off by this Attorney-General. He just likes to table legislation that is sloppy. But the problem in this case is it would have allowed child sex offenders to get off scot-free.

The other example is the Australian Administrative Tribunal. That's actually laughable, because we're on the fourth bill to clean up the mess of the first bill. Thank goodness the Senate will pass amendments to clean up this mess, but if we hadn't, it would have been those opposite who introduced a child sex offender's charter, because that's what it would have been under this bill. I move:

At the end of the motion, add ", but the Senate:

(a) notes with concern the unintended consequences associated with the first draft of this bill, which would have adversely impacted the ability to prosecute certain Commonwealth sexual offences; and

(b) notes that these issues were only identified and fixed as a result of the inquiry by the Legal and Constitutional Affairs Legislation Committee".