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Justice Legislation (Sexual Offences and Bail)
Bill
Victorian Legislation Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Crimes Act 1958 to create sexual servitude offences, to
amend existing child pornography offences and to create new offences
relating to involving children in sexual performances. The Evidence Act
1958 and the Sentencing Act 1991 are also amended to include references to
the sexual servitude offences. The Bill amends the Bail Act 1977 in relation
to failure to answer bail and extension of bail and amends the County Court
Act 1958 to allow the registrar to extend bail when a judge is not available.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are--
· to amend the Crimes Act 1958--
· to create offences in relation to sexual servitude
and sexual performances involving a minor; and
· to amend offences in relation to child
pornography; and
· to amend the Evidence Act 1958 in relation to the
giving of evidence in cases for sexual servitude
offences; and
· to amend the Sentencing Act 1991 to classify sexual
servitude offences as serious offender offences; and
· to amend the Bail Act 1977 in respect of failure to
answer bail and extension of bail; and
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551159 BILL LA CIRCULATION 22/4/2004
· to amend the County Court Act 1958 to give a registrar
or a deputy registrar the power to extend bail in certain
circumstances.
Clause 2 provides for the commencement of this Bill. The Bill comes into
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operation on the day after it receives Royal Assent.
PART 2--AMENDMENT OF CRIMES ACT 1958, EVIDENCE
ACT 1958 AND SENTENCING ACT 1991
This Part amends the Crimes Act 1958 to create a series of offences relating
to sexual servitude, deceptive recruiting for commercial sexual services and
sexual performances involving a minor. It amends offences in the Crimes
Act 1958 relating to child pornography. It also amends the Evidence Act
1958 to apply a number of evidentiary and procedural rules to the new sexual
servitude and deceptive recruiting offences. It amends the Sentencing Act
1991 to enable the application of Part 2A of that Act to sexual servitude
offences.
Clause 3 inserts a new Subdivision (8EAA) (Sexual Servitude) into
Division 1 of Part I of the Crimes Act 1958.
New section 60AB(1) contains two definitions for the purposes
of the section.
"Commercial sexual services" means the use or display of the
body for the sexual arousal or sexual gratification of others and
for commercial benefit. It is not necessary that the person whose
body is used or displayed should derive a commercial benefit.
It is sufficient if any person derives a commercial benefit from
that use or display.
"Threat" means the threat of force or deportation or the threat of
any other detrimental action unless there are reasonable grounds
for the threat of that action, such as a threat that one might expect
in the ordinary course of employment. The threat of any other
detrimental action includes threats to another person, for
example, the victim's child.
New section 60AB(2) creates a new offence relating to sexual
servitude. A person is guilty of this offence if he or she causes
another person to provide, or to continue providing, commercial
sexual services by the use of force, a threat, unlawful detention,
fraud or misrepresentation (including by omission) or a
manifestly excessive debt.
The use of a manifestly excessive debt may include situations
where a person causes another person to provide commercial
sexual services by telling them to repay a debt that far exceeds
any amount actually owed by that person. The use of fraud or
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misrepresentation may include situations where a person causes
another person to provide commercial sexual services by
deceiving the other person about the size or existence of the
debt, and whether their services are actually discharging the debt.
The maximum penalty for this offence is 15 years imprisonment.
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New section 60AB(3) creates an offence to induce or cause a
person to provide commercial sexual services, knowing or being
reckless about whether the person will not be free to stop
providing those services because of the use of force, threat,
unlawful detention, fraud or misrepresentation or a manifestly
excessive debt.
This offence targets people such as recruiters whose activities
cause or induce another person into sexual servitude but who do
not themselves use force, threats, unlawful detention, fraud,
misrepresentation or excessive debt. Under this offence, it will
be enough if a person knows or is reckless as to whether another
person will use these means to ensure that the victim is not be
free to stop providing these services. The maximum penalty for
this offence is 15 years imprisonment.
New section 60AB(4) creates an offence of conducting a business
that involves providing commercial sexual services, knowing or
being reckless as to whether the persons providing those services
are not free to stop providing those services because of force,
threats, unlawful detention, fraud or misrepresentation or a
manifestly excessive debt. Conducting a business includes a
range of activities including taking part in the management of the
business, exercising control or direction over the business or
providing finance to the business. The maximum penalty for this
offence is 15 years imprisonment.
New section 60AC creates an offence of aggravated sexual
servitude. A person is guilty of aggravated sexual servitude if the
person commits an offence against section 60AB(2), (3) or (4)
and intended to commit, or was reckless about committing, the
offence against a person under 18 and the person was in fact
under 18 years of age. The maximum penalty for this offence is
20 years imprisonment.
New section 60AD creates a new offence of deceptive recruiting
for commercial sexual services. It will be an offence for a
person, intending to induce another person to enter into an
engagement to provide commercial sexual services, to deceive
the other person about the fact that the engagement will involve
the provision of commercial sexual services.
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This is a preparatory offence aimed at deceptions designed to
recruit sex workers by concealing that the engagement will
involve the provision of sexual services. In some circumstances
such conduct may be a prelude to sexual servitude. However, for
the purposes of this offence, it does not matter whether the sexual
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services will involve any element of servitude. The maximum
penalty for this offence is 5 years imprisonment.
Specific preparatory deception in relation to sexual servitude
(such as misrepresentations about the conditions of work) would
be covered by an attempt to commit one of the sexual servitude
offences in section 60AB(2) or (3). The principles relating to
attempt are set out in Part I, Division 12 of the Crimes Act 1958.
The penalty for attempt to commit an offence against section
60AB(2) or (3) is a maximum of 10 years imprisonment.
New section 60AE creates an offence of aggravated deceptive
recruiting for commercial sexual services. A person is guilty of
this offence if the person commits an offence against section
60AD and the person intended to commit, or was reckless as to
committing, the offence against a person under 18 and the person
was in fact under 18 years of age. The maximum penalty for this
offence is 10 years imprisonment.
Clause 4 amends the definition of "child pornography" in section 67A
of the Crimes Act 1958 by removing the words "under 16".
The effect of this amendment is to include in the definition
depictions of minors aged 16 and 17.
Clause 5 amends section 69 of the Crimes Act 1958 (Procurement of a
minor for child pornography) to make it an offence to cause or to
offer a minor (under 18) to be in any way concerned in the
making or production of child pornography.
Section 69 already makes it an offence to invite a minor to be in
any way concerned in the making or production of child
pornography, or to procure a minor for the purpose of making or
producing child pornography.
Clause 6 amends sections 70(2)(c) and 70(3) of the Crimes Act 1958
(Possession of child pornography) to raise the age threshold for
certain defences in relation to possession of child pornography.
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Clause 7 inserts a new Subdivision (14) (Sexual Performances involving a
Minor) into Division 1 of Part I of the Crimes Act 1958.
New section 70AB provides definitions for the Subdivision.
"Minor" means a person under the age of 18 years.
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"Sexual performance" means live performance that is, or could
reasonably be considered to be, for the sexual arousal or sexual
gratification of any person.
The Prostitution Control Act 1994 applies to some live
performances of a sexual nature, where that performance falls
within the definition of "sexual services" in that Act. Under that
Act it is an offence to cause or induce a child under 18 to be
involved in sexual services for payment or reward.
The definition of "sexual services" in the Prostitution Control
Act 1994, however, may not cover all performances which are
for the sexual arousal or gratification of others. This is because
that definition generally requires some form of physical contact.
For example, the definition in that Act may not cover some strip
shows.
The definition of "sexual performance" in the Bill will cover a
broader range of performances than the definition of "sexual
services" in the Prostitution Control Act 1994.
New section 70AC prohibits a person from inviting, procuring,
causing or offering a minor to be in any way concerned in a
sexual performance in circumstances where there is payment or
reward to the minor or to any other person in respect of the
performance. This offence is punishable by a maximum of
10 years imprisonment.
Clause 8 amends the Evidence Act 1958 to apply special evidentiary rules
to the sexual servitude and deceptive recruiting offences
contained in new Subdivision (8EAA).
The amendment of section 37B of the Evidence Act 1958 means
that the rules in section 37B relating to the use of recorded
evidence-in-chief in a legal proceeding will also apply to the
sexual servitude and deceptive recruiting offences.
The amendment of section 37C of the Evidence Act 1958 means
that the rules in section 37C relating to alternative arrangements
for giving evidence will also apply to the sexual servitude and
deceptive recruiting offences.
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Clause 9 inserts the sexual servitude and deceptive recruiting offences
contained in new Subdivision (8EAA) of the Crimes Act 1958
into Schedule 1 to the Sentencing Act 1991 to apply special
sentencing rules to the new offences.
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The sexual servitude and deceptive recruiting offences will be
classified as sexual offences for the purposes of Part 2A (Serious
Offenders) of the Sentencing Act 1991. Part 2A contains
additional matters that may be considered when sentencing
serious offenders.
PART 3--AMENDMENT OF BAIL ACT 1977
Clause 10 repeals section 4(2)(c) of the Bail Act 1977. Section 4(2)(c)
applies where a defendant has been released on bail to appear in
court on a specified date, fails to appear in court on that date, is
arrested for failing to appear and again applies for bail. In this
situation, section 4(2)(c) requires the court to refuse bail unless
the defendant satisfies the court that the failure to appear was due
to causes beyond his or her control.
The Victorian Law Reform Commission, in its report Failure
to Appear in Court in Response to Bail (2002), found that
section 4(2)(c) had an unfair effect on Indigenous defendants
and defendants with a physical or intellectual disability, and
recommended that the paragraph be repealed.
The effect of repealing section 4(2)(c) will be to enable a court to
balance the full range of considerations (including any previous
failures to answer bail) in deciding whether to grant bail to a
defendant.
It is noted that a defendant who has actually been charged with
the separate offence of failing to answer bail (section 30 of the
Bail Act 1977) will still have to "show cause" why detention in
custody is not justified under section 4(4)(d), but they would not
also have to satisfy the court that their failure to appear was
beyond their control.
Clause 11 amends section 16(3) of the Bail Act 1977 to broaden the basis
on which a court can extend a person's bail in their absence.
Currently section 16(3) of the Bail Act 1977 allows a court to
extend a person's bail where it is satisfied that the person is by
reason of illness or accident or other sufficient cause unable to
appear personally in response to bail. The amendment will
broaden the basis on which a court can extend a person's bail in
their absence. The section will now provide that a court can
extend a person's bail where it is satisfied that the accused is not
present for sufficient cause.
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The effect of the amendment is that a court will now be able to
extend bail in the absence of a defendant not only when the
defendant is unable to attend because of illness or accident but in
any circumstance where the court is satisfied that the defendant is
not present for sufficient cause.
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Clause 12 inserts new section 16A into the Bail Act 1977. New section
16A provides that when a court extends a defendant's bail, the
court must notify the defendant (and any surety) in writing that
bail has been extended in their absence. The notice must state the
date, time and place at which the defendant must attend court for
the next hearing and also state what will happen if the defendant
fails to attend court on that new date.
PART 4--AMENDMENT OF COUNTY COURT ACT 1958
Clause 13 amends section 7(4) of the County Court Act 1958. Currently
clause 7(4) of the County Court Act 1958 provides that if a
judge is not present in court before one o'clock in the afternoon
of a day on which the court is due to sit, the registrar may open
the court and adjourn the court to the following day or to another
day as directed by a judge. It is not clear that the registrar has the
power to extend a person's bail to that later date. The amendment
will clarify that the registrar may extend a defendant's bail to that
later date.
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