Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Vulnerable witness protections
1 Part IAD (heading)
Repeal the heading, substitute:
Part IAD -- Protecting vulnerable persons
2 Before subsection 15Y(1)
Insert:
Proceedings involving children
3 Subsection 15Y(1)
Omit "This Part applies to any proceedings for:", substitute "This Part contains special rules for children involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:".
4 Paragraph 15Y(1)(b)
Omit "(Sexual assault of United Nations and associated personnel); or", substitute "(sexual assault of United Nations and associated personnel);".
5 Paragraph 15Y(1)(c)
Omit "(Slavery and slavery - like conditions); or", substitute "(slavery and slavery - like conditions);".
6 Paragraph 15Y(1)(caa)
Omit "(trafficking in persons, trafficking in children, debt bondage); or", substitute "(trafficking in persons and debt bondage);".
7 Paragraphs 15Y(1)(cab), (cac), (ca) and (cba)
Omit "); or", substitute ");".
8 Paragraph 15Y(1)(cb)
Omit " 1958 .", substitute " 1958 ;".
9 Paragraph 15Y(1)(d)
Omit "regulations; or", substitute "regulations;".
10 Paragraph 15Y(1)(e)
Omit "subsection; or", substitute "subsection;".
11 Subsection 15Y(2)
Repeal the subsection, substitute:
Proceedings involving adult complainants
(2) This Part contains special rules for adult complainants involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(a) an offence against Division 270 of the Criminal Code (slavery and slavery - like conditions);
(b) an offence against Division 271 of the Criminal Code (trafficking in persons and debt bondage);
(c) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in paragraph ( a) or (b);
(d) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
(iii) inciting the commission of;
an offence of a kind referred to in paragraph ( a), (b) or (c).
Proceedings involving special witnesses
(3) This Part contains special rules that can apply for special witnesses involved in proceedings for any Commonwealth offence.
Related proceedings included
(4) Each of subsections ( 1), (2) and (3) also applies to any proceedings connected with a proceeding referred to in that subsection.
Example: Committal proceedings.
(5) Similarly, subsection 15YAB(1) (about special witnesses) also applies to any proceedings connected with a proceeding for a Commonwealth offence.
12 Section 15YA
Insert:
"adult" means a person who is 18 or over.
13 Section 15YA (definition of child complainant )
Omit "a proceeding", substitute "a child proceeding".
14 Section 15YA
Insert:
"child proceeding" means a proceeding to which subsection 15Y(1) applies.
15 Section 15YA (definition of child witness )
Omit "a proceeding", substitute "a child proceeding".
16 Section 15YA
Insert:
"party" to a proceeding includes the prosecutor, each defendant and each person named in evidence given in the proceeding.
17 Section 15YA (definition of proceeding )
Repeal the definition, substitute:
"proceeding" means a proceeding to which one or more of subsections 15Y(1), (2) and (3) apply .
18 Section 15YA
Insert:
"special witness" has the meaning given by subsection 15YAB(1).
"special witness proceeding" means a proceeding to which subsection 15Y(3) applies.
"vulnerable adult complainant" has the meaning given by section 15YAA.
"vulnerable adult proceeding" means a proceeding to which subsection 15Y(2) applies.
19 After section 15YA
Insert:
15YAA Vulnerable adult complainants
(1) A vulnerable adult complainant , in relation to a vulnerable adult proceeding, is an adult who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(2), to which the proceeding relates.
(2) However, the adult is not a vulnerable adult complainant if the adult informs the court that he or she does not wish to be treated as such a complainant.
(3) A vulnerable adult complainant need not be involved in the vulnerable adult proceeding or the initiation of that proceeding.
Meaning of special witness
(1) In a proceeding for a Commonwealth offence, the court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:
(a) a disability; or
(b) intimidation, distress or emotional trauma arising from:
(i) the person's age, cultural background or relationship to a party to the proceeding; or
(ii) the nature of the evidence; or
(iii) some other relevant factor.
Note: Such a declaration can also be made in a related proceeding (see subsection 15Y(5)).
(2) A declaration under subsection ( 1) may be made on the court's own initiative or on application by or on behalf of a party to the proceeding.
Orders that certain protections apply to a special witness
(3) In a special witness proceeding, the court may order that one or more of the following sections apply to a special witness:
(a) section 15YG (about unrepresented defendants);
(b) section 15YH (about represented defendants);
(c) section 15YI (about closed - circuit television);
(d) section 15YL (about alternative arrangements);
(e) section 15YM (about use of video recordings);
(f) section 15YO (about accompanying adults);
(g) section 15YP (about excluding people from the courtroom).
(4) An order under subsection ( 3) may be made on the court's own initiative or on application by or on behalf of the special witness.
20 Subsections 15YB(1) and 15YC(1)
Omit "a proceeding", substitute "a child proceeding".
21 Subsection 15YE(1)
Repeal the subsection, substitute:
(1) The court must disallow a question put to a person in cross - examination in a proceeding if:
(a) the question is inappropriate or unnecessarily aggressive; and
(b) the person is a person to whom subsection ( 3) applies.
22 Subsection 15YE(2)
Omit "child witness'", substitute "person's".
23 At the end of section 15YE
Add:
(3) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness.
24 Subsection 15YF(1)
Omit "a proceeding", substitute "a child proceeding".
25 Section 15YG (heading)
Omit " child witnesses ", substitute " vulnerable persons ".
26 Subsection 15YG(1)
Omit "child witness (other than a child complainant)", substitute "person to whom subsection ( 1A) applies (the vulnerable person )".
27 After subsection 15YG(1)
Insert:
(1A) This subsection applies to the following persons:
(a) for a child proceeding--a child witness (other than a child complainant);
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section.
28 Subsection 15YG(2)
Omit "unless satisfied that the child's", substitute "under subsection ( 1) unless satisfied that the vulnerable person's".
29 Before paragraph 15YG(4)(a)
Insert:
(aa) if the vulnerable person is a vulnerable adult complainant--may be made by or on behalf of the defendant or the vulnerable person; and
30 Subsection 15YG(5)
Omit "child" (wherever occurring), substitute "vulnerable person".
31 Section 15YH (heading)
Omit " child witnesses and child complainants ", substitute " vulnerable persons ".
32 Section 15YH
Before "A", insert "(1)".
33 Section 15YH
Omit "a child witness or a child complainant except through counsel", substitute ", except through counsel, a person to whom subsection ( 2) applies".
34 At the end of section 15YH
Add:
(2) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section.
35 Division 4 of Part IAD (heading)
Omit " child witnesses ", substitute " vulnerable persons ".
36 Subsection 15YI(1)
Omit "A child witness' evidence in a proceeding", substitute "Evidence in a proceeding from a person to whom subsection ( 1A) applies (the vulnerable person )".
37 Paragraphs 15YI(1)(a) and (b)
Omit "child", substitute "vulnerable person".
38 Subsection 15YI(1) (note)
Omit "child witness", substitute "vulnerable person".
39 After subsection 15YI(1)
Insert:
(1A) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section.
40 Subsection 15YI(2)
Omit "child witness'", substitute "vulnerable person's".
41 Subsection 15YJ(1)
Omit "child witness' evidence", substitute "vulnerable person's evidence".
42 Paragraph 15YJ(1)(c)
Omit "child" (wherever occurring), substitute "vulnerable person".
43 Subsection 15YJ(2)
Omit "15YM", substitute "15YO (about accompanying adults)".
44 Section 15YK
Omit "the child witness' evidence", substitute "the vulnerable person's evidence".
45 Section 15YK
Omit "child" (second and third occurring), substitute "vulnerable person".
46 Subsection 15YL(1)
Omit "a child witness' evidence in a proceeding", substitute "evidence in a proceeding from a person to whom subsection ( 3) applies".
47 Paragraphs 15YL(1)(a) and (b)
Omit "child", substitute "person".
48 Subparagraph 15YL(2)(b)(ii)
Omit "child's", substitute "person's".
49 Subsection 15YL(3)
Repeal the subsection, substitute:
Persons to whom these alternative arrangements apply
(3) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section;
unless that person is at least 16 and chooses not to give evidence under the arrangements.
50 Subsection 15YM(1)
Omit "child witness", substitute "person to whom subsection ( 1A) applies".
51 After subsection 15YM(1)
Insert:
(1A) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section;
52 Subsection 15YM(2)
Omit "if satisfied that it is not in the interest of justice for the child's", substitute "under subsection ( 1) if satisfied that it is not in the interest of justice for the person's".
53 Subsection 15YM(4)
Omit "child witness", substitute "person".
54 Subsection 15YN(1)
Omit "child witness", substitute "person".
55 Paragraph 15YN(2)(a)
Omit "child witness if the child", substitute "person if the person".
56 After Division 5 of Part IAD
Insert:
Division 5A -- Special rules for later trials
15YNA When this Division applies
This Division applies if a proceeding (the original proceeding ) involving the trial of one or more defendants:
(a) concludes and, on appeal, a new proceeding involving the trial of any or all of the defendants is ordered; or
(b) is discontinued and a new proceeding involving the trial of any or all of the defendants is ordered.
15YNB Original evidence admissible in new proceeding
(1) For the new proceeding, the prosecutor may prepare a record of all the evidence given by any person to whom subsection ( 4) applies (the vulnerable person ) in the original proceeding if:
(a) the record is in a form, and is authenticated in a way, prescribed under subsection ( 5); and
(b) the prosecutor gives written notice to the court, and to the defendants in the new proceeding, of the prosecutor's intention to tender that record as evidence in the new proceeding ; and
(c) that notice is so given:
(i) at least 21 days before the court commences hearing the new proceeding; or
(ii) within such other period as the court allows.
Note: The record would include all the evidence given in the original proceeding by the vulnerable person (whether evidence on examination in chief, on cross - examination or on re - examination).
(2) However, the prosecutor may alter or edit that record with the agreement of each defendant in the new proceeding.
(3) Both of the following are admissible as evidence in the new proceeding:
(a) a record of evidence prepared under subsection ( 1) and (2);
(b) the exhibits tendered in the original proceeding in connection with that evidence.
(4) This subsection applies to the following persons:
(a) if the original proceeding was a child proceeding--a child complainant;
(b) if the original proceeding was a vulnerable adult proceeding--a vulnerable adult complainant.
(5) The Minister may, in writing, prescribe the form, and ways for authenticating, records prepared under subsection ( 1).
15YNC Vulnerable person not to be made to give further evidence
(1) A vulnerable person whose evidence is included in a record admitted under section 15YNB need not give any further evidence in the new proceeding unless the court orders that this is necessary:
(a) to clarify the vulnerable person's evidence given in the original proceeding; or
(b) to give proper consideration of information or material that has become available since the original proceeding; or
(c) in the interests of justice.
Note: This subsection covers further evidence that could otherwise be given on examination in chief, on cross - examination or on re - examination.
(2) If the court makes an order under subsection ( 1), the court is to ensure that the vulnerable person is questioned in the new proceeding only about the matters specified in the order.
(3) An order under subsection ( 1) may be made on the court's own initiative or on application by or on behalf of a party to the new proceeding.
(4) Despite subsection ( 1), the vulnerable person may seek leave of the court to give further evidence in the new proceeding. Subsections ( 1) and (2) cease to apply to the person if leave is given.
15YND Defendants' access to video recordings
(1) If a record prepared under subsection s 15YNB(1) and (2) includes a video recording, neither:
(a) the defendants in the new proceeding; nor
(b) their legal representatives in the new proceeding;
are entitled to be given the video recording or a copy of it.
(2) However, they must be given reasonable access to the video recording in order to view it.
Note: This may require access on more than one occasion.
15YNE Warnings etc. not to be given about vulnerable persons' evidence
If there is a jury in the new proceeding, the judge is not to warn the jury, or suggest to the jury in any way, that the law requires greater or lesser weight to be given to evidence that is included in a record admitted under section 15YNB.
15YNF Division applies despite other rules of evidence
This Division has effect despite the Evidence Act 1995 , any other law and any other rules of evidence or procedure.
57 Section 15YO (heading)
Omit " child witnesses ", substitute " vulnerable persons ".
58 Subsection 15YO(1)
Omit "child witness", substitute "person to whom subsection ( 1A) applies".
59 Subsection 15YO(1)
Omit "child" (second and third occurring), substitute "person".
60 After subsection 15YO(1)
Insert:
(1A) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section;
61 Subsection 15YO(2)
Omit "so chosen", substitute "chosen under subsection ( 1)".
62 Subsections 15YO(2) and (3)
Omit "child" (wherever occurring), substitute "person".
63 Subsection 15YO(4)
Omit "child" (first occurring), substitute "person".
64 Paragraph 15YO(4)(a)
Omit "child or otherwise influence the child's", substitute "person or otherwise influence the person's".
65 Paragraph 15YO(4)(b)
Omit "child", substitute "person".
66 Subsection 15YO(5)
Omit "child", substitute "person".
67 Section 15YP
Repeal the section, substitute:
15YP Excluding people from the courtroom
The court may order that some or all of the members of the public be excluded from the courtroom in which any of the following persons is giving evidence in a proceeding:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness for whom an order under subsection 15YAB(3) is in force for this section.
68 Section 15YQ (heading)
Omit " children's ", substitute " vulnerable persons' ".
69 Section 15YQ
Before "If", insert "(1)".
70 Section 15YQ
Omit "child witness", substitute "person to whom subsection ( 2) applies".
71 Paragraph 15YQ(a)
Repeal the paragraph, substitute:
(a) that the law regards persons to whom subsection ( 2) applies as an unreliable class of witness; or
72 Paragraph 15YQ(d)
Omit "child", substitute "person".
73 At the end of section 15YQ
Add:
(2) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant;
(c) for a special witness proceeding--a special witness.
74 Section 15YR (heading)
Omit " child complainants ", substitute " vulnerable adult complainants ".
75 Paragraph 15YR(1)(c)
Repeal the paragraph, substitute:
(c) the matter:
(i) identifies another person, who is a person to whom subsection ( 1A) applies (the vulnerable person ) in relation to a proceeding, as being a child witness or vulnerable adult complainant; or
(ii) is likely to lead to the vulnerable person being identified as such a person; and
(d) the vulnerable person is not a defendant in the proceeding.
76 After subsection 15YR(1)
Insert:
(1A) This subsection applies to the following persons:
(a) for a child proceeding--a child witness;
(b) for a vulnerable adult proceeding--a vulnerable adult complainant.
77 Paragraphs 15YR(4)(a) and (b)
Omit "child witness or child complainant", substitute "vulnerable person".
78 Section 15YT
Repeal the section, substitute:
15YT Other video link evidence provisions are unaffected
Nothing in this Part affects the operation of Division 279 of the Criminal Code (about video link evidence in offences against humanity).
79 At the end of subsection 270.12(1) of the Criminal Code
Add:
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
80 At the end of subsection 271.12(1) of the Criminal Code
Add:
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
81 At the end of section 272.7 of the Criminal Code
Add:
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
82 Subdivision D of Division 272 of the Criminal Code
Repeal the Subdivision.
83 At the end of section 273.4 of the Criminal Code
Add:
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
84 Subdivision D of Division 273 of the Criminal Code
Repeal the Subdivision.
85 At the end of Chapter 8 of the Criminal Code
Add:
Division 279 -- Video link evidence
279.1 Proceedings to which this Division applies
This Division applies to a proceeding for an offence against any of the following Divisions of this Chapter:
(a) Division 270 (slavery and slavery - like conditions);
(b) Division 271 (trafficking in persons and debt bondage);
(c) Division 272 (child sex offences outside Australia);
(d) Division 273 (offences involving child pornography material or child abuse material outside Australia).
279.2 When court may take evidence by video link
In a proceeding, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link if:
(a) the witness will give the evidence from outside Australia; and
(b) the witness is not a defendant in the proceeding; and
(c) the facilities required by section 279.3 are available or can reasonably be made available; and
(d) the court is satisfied that attendance of the witness at the court to give the evidence would:
(i) cause unreasonable expense or inconvenience; or
(ii) cause the witness psychological harm or unreasonable distress; or
(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and
(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.
279.3 Technical requirements for video link
(1) A witness can give evidence under a direction only if:
(a) the courtroom or other place in Australia where the court is sitting (the Australian location ); and
(b) the place where the evidence is given (the overseas location );
are equipped with video facilities that:
(c) enable appropriate persons at the Australian location to see and hear the witness give the evidence; and
(d) enable appropriate persons at the overseas location to see and hear appropriate persons at the Australian location.
(2) In subsection ( 1):
"appropriate persons" means such persons as the court considers appropriate.
279.4 Application of laws about witnesses
A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.
Note: This section has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.
279.5 Administration of oaths and affirmations
An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:
(a) by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not) authorised by the court;
(iii) at the place where the witness is to give the evidence.
A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Division.
279.7 Other laws about foreign evidence not affected
This Division does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding.
Part 2 -- Victim impact statements
86 Subsection 16(1)
Insert:
"family" has a meaning affected by subsection 16A(4).
87 Subsection 16(1)
Insert:
"harm" includes:
(a) physical, psychological and emotional suffering; and
(b) economic and other loss; and
(c) damage.
88 Subsection 16(1)
Insert:
"victim impact statement" has the meaning given by section 16AAA.
89 At the end of Division 1 of Part IB
Add:
16AAA Victim impact statements
(1) A victim impact statement , for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied:
(a) the statement must be made by one of the following:
(i) the individual;
(ii) if the court gives leave, a member of the individual's family;
(iii) a person appointed by the court;
(b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence;
(c) if the statement is written, the statement must be:
(i) signed or otherwise acknowledged by the maker of the statement; and
(ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender;
(d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender.
(2) However, the court may order that the requirement in paragraph ( 1)(d) does not apply to a particular oral statement.
(3) The Minister may, in writing, prescribe a form for victim impact statements. Such a form does not restrict how victim impact statements may be made.
(4) The Minister may delegate, in writing, his or her power under subsection ( 3) to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
90 After paragraph 16A(2)(e)
Insert:
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence--any victim impact statement for the victim;
91 Subsection 16A(4)
Omit "this section", substitute "this Part".
92 After section 16AA
Insert:
16AB Matters relating to victim impact statements
(1) This section applies in relation to victim impact statements made known to a court as described in paragraph 16A(2)(ea).
(2) Only one victim impact statement may be made for each victim of an offence, unless the court gives leave.
(3) No implication is to be drawn from the absence of a victim impact statement for a victim.
(4) All or part of a victim impact statement for a victim may be read to the court by or on behalf of the victim.
(5) A victim impact statement is not to be read to the court, or otherwise taken into account, to the extent that:
(a) it expresses an opinion about an appropriate sentence; or
(b) it is offensive, threatening, intimidating or harassing; or
(c) admitting it into evidence would otherwise not be in the interests of justice.
(6) The person convicted of the offence may only test the facts in a victim impact statement:
(a) by way of cross - examining the maker of the statement; and
(b) if the court gives leave to do so.
(7) For the purposes of Part IAD (about protecting vulnerable persons):
(a) giving evidence includes giving a reading under subsection ( 4); and
(b) a cross - examination includes a cross - examination under subsection ( 6).
Note: This confirms that any protections available under Part IAD will be available for the reading or the cross - examination.
Part 3 -- Application of amendments
93 Application of amendments
(1) The amendments made by this Schedule apply in relation to offences committed (or alleged to have been committed) on or after the day this Schedule commences.
(2) The amendments made by Part 1 of this Schedule also apply in relation to proceedings instituted after the commencement of Schedule 5 to the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 (whether the proceedings are for offences committed, or alleged to have been committed, before or after the commencement of this Schedule).