Project Axis was established as a wide-ranging inquiry into child sex offending in Queensland (QCC & QPS 2000a; 2000b; 2000c; 2000d). The Department of Premier and Cabinet (Queensland Government 2002a, pp. 13–14) recently announced that the Attorney-General has developed a package of reforms in response to the Project Axis reports (QCC & QPS 2000a; 2000b) and the report of the Queensland Law Reform Commission (2000), which reviewed the evidence of children in the same year. The first round of reforms is contained in the Sexual
Offences (Protection of Children) Amendment Act 2003 (Qld), the relevant
provisions of which came into operation on 1 May 2003. Some of the key amendments are as follows:
• An increase in the maximum penalty for the offence of indecent treatment of children under the age of 16, from 10 years to 14 years imprisonment.
21 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N • An increase in the maximum penalty for the offence of indecent treatment
of children under the age of 12, or where there are other aggravating features, from 14 years to 20 years imprisonment.
• Section 9 (sentencing guidelines) of the Penalties and Sentences Act has been amended so that the principle that ‘a sentence of imprisonment is a sentence of last resort’ no longer applies to an offence of a sexual nature committed against a child under the age of 16 years. Section 9 now contains a separate provision that lists the factors that should be taken into account in sentencing a c hild sex offender. Some of these factors are:
— the effect of the offence on the child — the age of the child
— the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another
— the need to protect the child, or other children, from the risk of the offender re-offending
— the need to deter similar behaviour by other offenders to protect children — the prospects of rehabilitation including the availability of any medical
or psychiatric treatment to cause the offender to behave in a way acceptable to the community.
• The creation of a new offence in the Criminal Code — it is no w a crime for an adult to use electronic communication with intent to: procure a person under the age of 16 years to engage in a sexual act; or without legitimate reason, expose a person under the age of 16 y ears to any indecent matter. Section 218A of the Criminal Code will permit prosecution of offenders where the alleged victim is not in fact a child under the age of 16 years but is another adult — for example, a police officer conducting an operation to detect paedophiles attempting to procure children to perform sexual acts. • A new version of section 229B (maintaining a sexual relationship with a
child) is inserted into the Criminal Code to restore the intended focus of the offence on an unlawful sexual relationship or course of conduct. The requirement to prove three acts of a sexual nature has been removed and instead the offence is established by proof of the relationship (that is, a course of conduct).
• The Corrective Services Act 2000 (Qld) has been amended so that release to
work, home detention and parole orders must now include a condition requiring prisoners to report to a particular police station within 48 hours of their release and thereafter at a frequency, and for a reporting period, decided by the Corrections Board.
• Under section 19 of the Criminal Law Amendment Act 1945 (Qld), a trial judge or another court could order a child sex offender to report personally to a particular police station within 48 hours of their release from custody and thereafter report (in writing) any change of name or address, again within 48 hours, to a particular police station. Section 19 has been amended and section 19A inserted into the Criminal Law Amendment Act. Under these two sections, a court can now also order a child sex offender to report personally to a particular police station for a particular period of time and frequency.
The second stage of reforms proposed by the Queensland Government is contained in the Evidence (Protection of Children) Amendment Bill 2003 tabled in Parliament on 13 May 2003. The Explanatory Notes (page 1) state that:
A great deal of reputable research has criticised the Queensland criminal justice system’s treatment of child witnesses, particularly child victims of sexual assault. Recent research indicates that children’s experiences in the criminal justice system deter them from making further reports of sexual abuse.
The Bill proposes that a new division be inserted into the Evidence Act (Division 4A), which contains a number of new measures for affected child
22 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N
witnesses. An ‘affected child’ is defined to include a child under 16 years of age who is a witness in a criminal proceeding for an offence of a sexual nature. Division 4A will also apply to a 16- or 17-year-old who satisfies the definition of a ‘special witness’ in section 21A of the Evidence Act.
The key features of the new division are as follo ws:
• In general, children will no longer be required to give evidence at a committal hearing: instead, their evidence will be constituted by an out-of- court written or recorded statement such as a recording of an interview with a police officer (which is admissible under section 93A of the Evidence Act).16
• There is a presumption in favour of prerecording a child’s evidence (for use during the trial) at a preliminary or pre-trial hearing. The preliminary hearing will be presided over by a J udge and will involve the taking of a c hild’s evidence-in-chief and any cross-examination and re-examination. The recording of the child’s evidence will then be played during the trial. • If a child has to give evidence during a committal hearing or a trial then:
— closed circuit television (CCTV) facilities or a screen must be used — all persons other than ‘essential persons’ must be excluded from the
courtroom
— the child is entitled to have a support person.
The Bill also proposes these other important amendments to the Evidence Act: • section 93A (which provides for out-of-court statements to be tendered as
evidence) apply to all children under 16 y ears of age and 16- and 17-year- olds who satisfy the definition of a ‘special witness’ in section 21A
• removal of the requirement in section 93A for a statement made to someone other than a person investigating to be made soon after the event
• the definition of a ‘special witness’ in section 21A of the Act apply to all children under 16 years of age
• the court to have the power to limit the questioning of a special witness by time or the number of questions asked on a given issue
• the rules about the giving of evidence by spouses be changed so that spouses are compellable to give evidence on the same basis as other witnesses, and the marital communications privilege is removed
• insertion of a new regime for the disclosure of the prosecution case to the defence.
Two significant amendments to other Acts are as follows:
• a new provision in the Criminal Law (Sexual Offences) Act (s. 4A) that changes the law on the admissibility of evidence about complaints made by a sexual offence complainant (that an offence has been committed). The new provision says:
— evidence about a complaint is admissible regardless of when the complaint was made;
— a Judge must not warn or suggest to the jury that a complainant’s evidence is more or less reliable only because of the length of time between the alleged offence and any complaint.
• Section 349 of the Criminal Code (which sets out the offence of rape) is amended to make it clear that a child under 12 years of age is incapable of consenting to sexual intercourse or penetration. One of the elements of the offence of rape is the absence of consent: this amendment means that consent will not be a relevant issue in deciding whether or not to prosecute a person for the rape of a child under 12 years of age.
The third and final stage of the reform package will be the development of a vulnerable witness policy by the Department of Justice and Attorney-General
23 C H A P T E R 3 : S E X U A L O F F E N C E L E G I S L A T I O N and an invitation to the judiciary to develop guidelines for implementing the new measures contained in the Evidence (Protection of Children) Amendment Bill 2003 (Qld). The department is also upgrading CCTV facilities in the higher courts and installing new facilities in a further 10 courts to be determined on a workload basis.
On 3 June 2003, shortly before this report was published, the Dangerous Prisoners (Sexual Offenders) Bill 2003 was tabled in Parliament. This Bill (if passed) will enable the Attorney-General to apply to the Supreme Court for an order that a serious sexual offence prisoner should not be released at the expiration of their term of imprisonment but should continue to be detained in custody for ‘an indefinite term for control, care or treatment’ or, alternatively, that the prisoner be released subject to certain conditions, including that the prisoner be under the supervision of a corrective services officer. According to the Explanatory Notes, this Bill responds to growing community concern about the risks associated with releasing convicted sex offenders who are not
rehabilitated back into the community without any supervision at the conclusion of their sentence.