Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020

Hansard ID: HANSARD-1323879322-113539

Hansard session: Fifty-Seventh Parliament, First Session (57-1)

Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020

Second Reading Debate

Debate resumed from an earlier hour.

Dr HUGH McDERMOTT (Prospect) (14:31):

:28 The Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020 updates and amends several pieces of legislation related to the formerly Communities and Justice cluster in New South Wales. Although these are relatively small amendments, they will have a significant impact on our legal system. I join my parliamentary colleague Paul Lynch, the shadow Attorney General, and the New South Wales Labor Opposition in not opposing the bill. However, there are a few amendments that I raise before the House.

Firstly, the amendment to the Crimes Act 1900 adds a new section to the Act allowing a court to make an order that an intimate image be removed, retracted, recovered, deleted or destroyed if it is threatened to be distributed in contravention of section 91R of the Crimes Act. Section 91R of the Act discusses the recording or distribution of intimate images. This offence will be punishable by a fine of up to $5,500. It is currently an offence under the Crimes Act to threaten to distribute an intimate image of another person without their consent. However, the current provisions do not give the court power to compel a person who has made these threats to destroy the images or attempt to recover it from another individual. A study by RMIT University found that one in five adults have either had an intimate photo of themselves shared without their permission or have been threatened with the sharing of such images. Other studies have put this figure as high as one in three.

These actions cause real harm to victims in our community. Many experts use the term "image‑based sexual abuse" to describe these actions and give appropriate weight to the harm that these actions cause. The offence can cause ongoing anxiety, fear and depression in victims and survivors. The impact that this abuse can have on the lives of victims is immense. It can make victims too afraid to leave their house and too anxious to apply for employment, out of fear that a potential employer may simply google their name and find the intimate images. This is an essential amendment to the Crimes Act 1900, helping to ensure that the Act keeps pace with changes in our society. It is imperative that the court can intercede and force the destruction or return of intimate images. Victims who have suffered threats of having private and intimate photos shared must be able to receive reassurance that the photos will be destroyed or returned. Further amendments regarding the sharing of intimate images are made as part of the amendments to the Criminal Procedure Act 1986. Under those changes, the recording, sharing, distribution or threat of recording of intimate images without consent will be classified as a prescribed sexual offence. This raises these offences to a deserved level of seriousness under New South Wales law.

Beyond the reforms relating to the sharing of images, this bill further makes reforms to the Criminal Procedure Act 1986 perfecting the use of coincidence and tendency evidence. Reforms to those areas were made earlier this year to the Evidence Amendment (Tendency and Coincidence) Act, which I supported at that time. Two further changes are made regarding the use of tendency and coincidence evidence. Firstly, offenders charged with model offences in a single indictment or whose charges are listed together will have their proceedings held together if the prosecution intends to use tendency and coincidence evidence. Secondly, a jury may not be instructed that tendency and coincidence evidence must be proved beyond reasonable doubt for the jury to consider. This is a logical amendment as such evidence can be used to prove the guilt of a perpetrator, not on its own but in the totality of evidence and actions.

Although procedural in nature, these amendments are vital for our community's confidence in our criminal justice and judicial system. Tendency and coincidence evidence is especially important in the most heinous of crimes and is vital for the ability of our law enforcement officials to obtain convictions against some of the worst offenders in New South Wales. Another reform made by the amendments to the Criminal Procedure Act is in relation to the appointment of a children's champion. Children's champions play a vital role in our criminal justice system, supporting and advocating for children who are complainants or witnesses in proceedings under the child sexual offence evidence pilot scheme. Criminal investigations and proceedings relating to child sexual abuse are traumatic for the victims and for witnesses to the crime. Our criminal justice system has a special responsibility to support children during this time and to ensure that their trauma is not unnecessarily extended and repeated as they provide their evidence before a court.

Children's champions play a vital role in that regard and often build a special bond of trust with these children. Under this amendment the children's champions are not excluded from being appointed to a child because they have previously been or are currently a champion of a child for the purpose of a criminal investigation. This will allow a children's champion to continue to advocate for a child throughout proceedings using their unique knowledge of that child to help protect the child from additional harm through the court process while ensuring that child is able to produce the most useful evidence towards a prosecution. A further amendment is made to the Criminal Procedure Act to improve the pre‑trial conference process. Currently, pre‑trial conferences can be used only to determine agreed evidence and facts that will be admitted at trial. The amendment increases the areas of discussion during the pre‑trial conference. Under this reform the prosecution and the defendant will identify the critical issues of disputes and identify issues that need to be resolved before the trial commences.

The court may also direct the prosecution and defendant to determine any other matters required by the court. This amendment should have the effect of making trial proceedings more efficient by determining the key areas of the prosecution and defence so that a child can focus on these areas to come to an appropriate outcome. The bill also will amend the Bail Act 2013 and reform the conditions under which a bail decision can stay while the Supreme Court considers a matter. Current legislation allows this to occur only on the bail applicant's first appearance before the court or authorised justice. The amendment will reform the Act to allow a stay to be put in place if no decision or application has previously been made in relation to an offence. This has the effect of still allowing bail stays if there has been an adjournment in a hearing. This reform is entirely sensible.

The intent of the law at the time that it was passed was to allow for bail to be stayed for dangerous criminals if the Crown believed that they posed a threat to the community and that the decision to grant bail by a court or an authorised justice increased the threat to our community. There is no reason that this ability to impose a stay of bail should be reduced simply because of procedural differences in bail applications. The safety and protection of our families and our community must come first in bail applications.

The bill also provides clarification of the Crimes (Sentencing Procedures) Act 1999. The amendment ensures that offenders who have lodged a written plea, and who have been excused from attending court, are classified as an absent offender. This reform ensures that inappropriate penalties cannot be issued to such an offender when they do not appear in court. Although these penalties should not have been applied previously—it is within the court's discretion—it is nonetheless essential that our laws are as straightforward as possible. These are sensible reforms to the New South Wales criminal justice system, especially those that focus on supporting victims and survivors of crime. In particular, I welcome the changes relating to the sharing and threatening to share of intimate images, which can have a devastating and often an underappreciated impact on victims and survivors. I also welcome any reforms to the judicial system that assist children who have been victims of, or who have been witness to, sexual crimes. I commend the bill to the House.

Mr MARK COURE (Oatley) (14:40):

:49 I thank the member for Prospect for speaking during debate on the important Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020. I welcome the opportunity to speak in support of the bill. In particular, I will deal with the amendments related to image-based abuse, which is colloquially referred to as revenge porn. In 2017 the New South Wales Government introduced legislation that criminalised the non-consensual sharing of intimate images. The reform followed the Legislative Council Standing Committee on Law and Justice's inquiry into remedies for the serious invasion of privacy in New South Wales in 2016. While a major concern for the committee was the issue of revenge porn, it did not make any particular recommendations on that issue because the consideration of criminal law was outside the inquiry's scope. However, the committee suggested that the New South Wales Government consider recent recommendations of the Commonwealth Senate Legal and Constitutional Affairs References Committee to introduce offences directed at this behaviour.

The Crimes Amendment (Intimate Images) Act 2017 amended the Crimes Act 1900 to make it a criminal offence to intentionally record or distribute, or to threaten to record or distribute, an intimate image of a person without their consent. The three new offences, under 91P, 91Q, and 91R of the Crimes Act 1900, are indictable offences and carry maximum penalties of up to three years imprisonment. Intimate image abuse can have severe impacts on the victim, their reputation and their loved ones. The introduction of the new offences reflects the New South Wales Government's commitment to strengthening this area of law and providing a clear remedy for such serious invasions of privacy.

In 2017 researchers from the Monash University conducted a survey of more than 4,200 people and found that 20 per cent of respondents had suffered intimate image-based abuse. The rate was much higher in Aboriginal and Torres Strait Islander communities. It was also higher for young respondents. The most common types of abuse reported were taking intimate images without consent, which accounted for 20 per cent of reported abuse, distributing images without consent and threatening to distribute images. In line with this commitment, the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020 contains two important amendments that will further increase the protections and support available to victims of such offences by extending to them special arrangements for the giving of evidence during criminal proceedings, and by empowering the courts to make rectification orders for a wider range of intimate image offences.

The prescribed sexual offences currently include, amongst others, all sexual offences against adults and children, grooming offences and offences involving the failure to reduce or remove the risk of a child becoming a victim of child abuse, to mention a few. Offences which have been classified as prescribed sexual offences afford complainants a number of statutory protections when giving evidence. These include the right to give evidence via audiovisual link or other alternative arrangements, the right to have a support person present, the closure of a court while giving evidence, and the right not to be cross-examined by an unrepresented accused.Section 578A of the Crimes Act 1900 also provides a statutory prohibition against any publication identifying a victim of a prescribed sexual offence.

Schedule 1.8 [2] to the bill amends the definition of "prescribed sexual offence" in the Criminal Procedure Act 1986 to include the offences of recording or distributing intimate images without consent and of threatening to record or distribute intimate images under sections 91P, 91Q and 91R of the Crimes Act 1900.

Given the nature of intimate image offences, complainants can be subjected to further distress throughout criminal proceedings, as intimate videos and photographs of them are played in open court, with few statutory protections available. They may be required to examine and comment on intimate imagery of themselves and be questioned around the context of the material, including its creation and distribution. This amendment will provide important and necessary protections to this class of victims. Improving the experience of victims may help to reduce barriers to reporting and encourage victims to participate in the criminal justice process. In addition to providing victims of intimate image offences with appropriate protections when giving evidence in criminal proceedings, schedule 1.4 to the bill also makes amendments allowing a court to order rectification in relation to a wider range of these offences.

Under section 91S of the Crimes Act 1900, a court that finds a person guilty of an offence of recording or distributing an intimate image without consent can order the person to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed by the person.However, such orders cannot currently be made for an offence of threatening to distribute an intimate image under section 91R of the Crimes Act 1900.There may be cases where an offender uses images that were consensually recorded or shared in order to threaten and harass. Such legally obtained images should also be subject to the court's rectification powers if they are being used against a complainant.Extending rectification powers to these offences will ensure that courts will have the discretion to order the removal or deletion of images and also prevent any futurethreats from being carried out by the offender with those images.

In recent years, threats by domestic violence abusers to distribute legally obtained intimate images of their victims have become evident in a growing number of cases.The amendments in this bill will provide greater protection for domestic violence victims from abusers who employ this type of coercive controlling behaviour, both when giving evidence in criminal proceedings and in the remedies that may be available upon conviction of the offender.I also note that the rectification orders under section 91R are not the only power available for victims to remove intimate images shared without their consent. For example, on 31 August 2018 the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 commenced and introduced Commonwealth take‑down powers for intimate images.

The Enhancing Online Safety Act 2015 allows the eSafety Commissioner to issue removal notices requiring a social media service, electronic service, internet service, hosting service or end-user of a social media service to remove an intimate image. Failure to comply with a removal notice attracts a civil penalty of 500 penalty units, which is over $100,000. In conclusion, these amendments will ensure that victims of intimate image offences are afforded protections which will lessen the stress and trauma associated with giving evidence in criminal proceedings.They will also ensure that rectification orders will be available for a wider range of these offences in the event of a future conviction. I am pleased to support the amendments in this bill, which may encourage greater participation in the criminal justice process.I commend the bill to the House.

Ms JODIE HARRISON (Charlestown) (14:49):Sexualisation of children and young people

:50 I will take particular note of the legislative changes which relate to children and young people in the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020. The bill amends the definition of "prescribed sexual offences" under section 3 of the Criminal Procedure Act to include offences relating to the recording and distribution of intimate images without consent. I welcome the move to expand the definition to capture these appalling and increasingly common offences. This will further enshrine in legislation recommendation 4 in the 2016 report of the Committee on Children and Young People titled , which called on the Attorney General to introduce legislation to create specific offences of distributing or threatening to distribute an intimate image.

Amendments to the Crimes Act in 2017 made it a criminal offence to record and distribute intimate images of a person without consent, imposing potential financial penalties and custodial sentences on people found guilty of doing so. Those amendments also made it an offence to threaten to record or distribute intimate images. The expansion of the definition of "prescribed sexual offence" under part 5 of the Criminal Procedures Act is important. When giving evidence, special arrangements will now be extended to victims of prescribed sexual offences. This extra layer of protection will help shield victims from the stresses of court. It will allow them to see their exploiters prosecuted without being retraumatised by the often confusing and onerous procedures required by the law of them in the prosecution of these offences.

The recommendation to criminalise the non-consensual or malicious sharing of intimate images was borne out of the committee's inquiry into a variety of topics related to the sexualisation of children and young people. This included what has become known as revenge pornography, which is the practice of sharing intimate or sexual images without the consent of the subject or subjects involved or for malicious purposes. The committee noted in the report:

… the typical revenge pornography scenario is one where a person has an intimate or sexually explicit image or video of themselves posted online by their ex-partner without their consent.

There are even dedicated revenge porn websites that encourage people to upload intimate content featuring their former partners without the consent of the other party. The objective of a revenge pornographer is clear and that is the humiliation of their former partner. That humiliation is made possible by the heinous exploitation of that former partner's trust. It is unacceptable in any form. The harm caused by intentional or malicious sharing of intimate images without consent has been widely acknowledged, both during the inquiry and in the years since.

I applaud moves to help protect victims from being retraumatised when their matter is heard in court. Making revenge porn or threatening revenge pornography a prescribed sexual offence entitles victims to a number of extra layers of protection. These include: allowing for the proceedings to be held in a closed court while a victim of revenge pornography, or of any prescribed sexual offence, is giving evidence; providing the option to give evidence via CCTV, or other alternative arrangements; and allowing complainants to have a support person present while giving evidence. Often, victims in the witness box are called upon to examine and to comment on intimate imagery of themselves, including during intensive cross-examination regarding the context of the intimate content.

While these offences do not necessarily involve the occasion of a physical assault, they are still deeply traumatic for the victim—a victim who is, statistically, going to be a girl or a young woman. These offences involve a deep trespass against the victim and often cause lasting harm, and we should do what we can to ensure that the court experience does not deepen those wounds any further. The extent of harm that can be caused by revenge pornography was outlined by the Advocate for Children and Young People, at that time Andrew Johnson, who told the committee:

The non-consensual redistribution of sexts can cause significant harm to the victim, affecting the young person's wellbeing, health, school, employment, family and peer relationships. Young people may find themselves the victims of humiliation, bullying, harassment, threat, punishment (from school and/or parents) and criminalisation.

The changes to the legislation will offer victims of revenge pornography the same protections as victims of other sexual offences while participating in the criminal justice system. That is an appropriate step to support them through a very difficult time. I am also glad to see amendments to the Act which will further strengthen the court's ability to make restitution orders related to the distribution or threatened distribution of intimate images. The amendments will ensure that victims who have suffered fear and trauma as a result of threatened revenge porn are able to access the same remedy as those who have had intimate images distributed without their consent. The court will also be able to make orders which prevent future threats from being made with images in the offender's possession.

I remember going over the submissions to the inquiry on this topic as a member of the Committee on Children and Young People. It made for harrowing reading. The lasting impacts of revenge pornography are still not completely understood, but the position we in this Parliament must take is absolutely clear. The sharing of intimate images without consent is never acceptable. The distribution of those images in order to get back at an ex-partner is a disgusting act. Those who violate this law should be prosecuted and those who have been violated should be protected. I am pleased that the bill will strengthen legislation relating to these crimes and go some way towards better protection.

I also note the efforts in the bill to clarify the role of children's champions in all the relevant stages of investigation and prosecution. As I have outlined, the court process, especially from within the witness box, can be confusing and retraumatising for victims, and this can be compounded for children. Children's champions are there to assist young witnesses to give their best evidence, ensuring that questions put to child witnesses and the answers they provide are understood by all parties. They work to make sure that the child's developmental or communicative needs are met, and they have a duty to the court to impartially facilitate communication with the witness so that they can provide their best evidence. An amendment in the bill will remove legislative ambiguity about the role of a children's champion throughout the investigative and prosecution processes, and that is a step forward in supporting young witnesses.

The bill will amend the Children and Young Persons (Care and Protection) Act to provide an express power for entry and inspection of the residences of authorised carers, those applying to become authorised carers and prospective guardians. I note that those powers are subject to consent for prospective guardians and those applying to be an authorised carer, but it is a condition of authorisation that home inspections are undertaken for those with a child in their care. The aim of the amendment is to ensure that carers, applicants and prospective guardians are providing a safe and secure environment for a child. This is a continuation of efforts to transfer the provisions of the Child and Young Persons (Care and Protection) Regulation into legislation. The ongoing project is also reflected in the insertion of an express power into the Children's Guardian Act to manage information for the purposes of registers kept by the Children's Guardian. It is a necessary step in the establishment and operation of the new register of residential care workers. That express power will secure the flow of information necessary to protect the safety, welfare and wellbeing of children and young people in out‑of‑home care. I join my colleagues in not opposing the bill.

Mr PETER SIDGREAVES (Camden) (14:59):

:12 I support the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020, in particular the proposed changes to the Criminal Procedure Act which will further support the admissibility of tendency and coincidence evidence. Two of the provisions in those changes signify the completion of the important work that the New South Wales Government has undertaken in response to the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to tendency and coincidence evidence. The royal commission was a significant and groundbreaking inquiry conducted over a five-year period. It examined the experiences of people affected by child sexual abuse in an institutional context and revealed the extent of the horrific abuse that has occurred within this nation. The royal commission received more than 42,000 calls and over 25,000 letters. It also held more than 8,000 private sessions as well as 57 formal public hearings and heard evidence about the abuse of children from over 1,200 witnesses.

The royal commission released a criminal justice report in August 2017 and a final report that was presented to the Governor-General in December 2017. The final report contained 409 recommendations, 85 of which had already been made in the criminal justice report. The significance of the work done by the royal commission and the value of the comprehensive response of the New South Wales Government to its recommendations is to be commended. Eight recommendations were made relating to tendency and coincidence evidence that sought to facilitate greater admissibility and cross-admissibility of these types of evidence and more joint trials in child sexual offence proceedings. They are detailed at recommendations 44 to 51 of the criminal justice report.

The Evidence Amendment (Tendency and Coincidence) Act 2020, which passed in June 2020, has already introduced provisions to ensure greater admissibility of that evidence. In doing that, the New South Wales Government became the first uniform evidence law jurisdiction in the nation to implement those reforms. The reforms were developed in consultation with stakeholders through a New South Wales-led Council of Attorneys‑General working group.

The bill will further achieve the objectives of the royal commission by ensuring that tendency and coincidence evidence will be able to be more readily relied upon by a jury when determining the guilt of an accused. Specifically, the bill will implement recommendation 48 through a provision which clarifies that a jury should not be directed as to the standard of proof required in relation to tendency and coincidence evidence. It will also support recommendation 44 by reforming the law to "facilitate greater admissibility and cross‑admissibility of tendency and coincidence evidence and joint trials". While there was not a specific recommendation for a legislative presumption in favour of joint trials made by the royal commission, the reforms on tendency and coincidence evidence in the bill reflect "the sentiment that there should be more joint trials", as expressed in the royal commission's criminal justice report.

These reforms together with the reforms made by the Evidence Amendment (Tendency and Coincidence) Act 2020 will have an important impact upon prosecutions, especially child sexual offence prosecutions. The admissibility of tendency and coincidence evidence can often impact whether a joint trial is held to determine charges against an accused by multiple complainants. That is because a joint trial is less likely to proceed where tendency and coincidence evidence is not cross-admissible. If a joint trial is not held, often not all evidence is able to be adduced in order to convey the full picture of the accused's alleged criminality to a jury, which can also make it particularly challenging for complainants to give evidence and strip them of the opportunity to be afforded a sense of mutual support for one another. These reforms continue to strike an appropriate balance between all parties in criminal proceedings, including the right to a fair trial and the rights of victims to be supported by the justice system. The bill represents the final step in a strong and effective response to the recommendations handed down by the royal commission. I am pleased to support the bill and these provisions.

Ms JENNY LEONG (Newtown) (15:04):

:46 I make a contribution on behalf of The Greens to debate on the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020. The bill makes a number of technical but important changes. The Greens support the bill, but flag that David Shoebridge will move amendments in relation to sections 1.6 [1] and [6] to propose that provisions around alternatives to prisons are offered to as many offenders as possible. I note that he will also address in more detail the provisions around tendency and coincidence, which previous members have also outlined. I particularly reference the proposed amendments to the definition of "prescribed sexual offence" in the Criminal Procedures Act 1986 to include changes to sections 91P, 91Q and 91R of the Crimes Act 1900. I also note the proposed amendment to section 91S of the Crimes Act 1900 to include a reference to section 91R. This would allow a court to order that a person found guilty of an offence under section 91R must remove, retract, recover, delete or destroy an intimate image.

The Greens strongly support increased protections for victims of so-called revenge porn and for those in situations where threats have been used to use intimate images. One of the most significant improvements in the bill covers situations where someone threatens to use images. Currently, this is not an offence and there are no proceedings or take-down orders available in relation to threats around this. This fix is very welcome and will have a huge impact on many people's lives.

The law has lagged significantly behind community attitudes regarding recognising the seriousness of these offences, as well as the need to protect those who have been victimised by these types of threats and appalling behaviours. We have heard way too many stories in the media of people, particularly young women, seeking to raise the unauthorised and malicious distribution of personal images with police yet not receiving an appropriate response. In some cases, the lack of sensitivity with which these matters have been handled demonstrates insufficient training on the matter. It is hoped that these changes will not only send a message outlining the changes that are required and emphasising the respect that needs to be shown to the victims of these threats and offences, but also that they will send a clear message to all in the justice system, including those on the front line, highlighting just how serious these offences are.

The Greens support necessary measures that will take out of circulation and away from the offender an image that was either shared or threatened to be shared. Beyond the scope of the current bill, service providers need to promptly and permanently remove such images from their platforms, and stop subsequent transmissions. It is not enough to look just at the offender—the service providers as well as those who put these images onto other platforms for subsequent transmission also need to be looked at. There should be alternatives to the police and the criminal justice system for victims who are either unwilling or unable to go through these traumatising systems. These alternatives could be funded and independently run through a privacy commissioner, or through another statutory authority. This would increase the likelihood of justice being done, with images and offences being taken care of outside of traditional systems.

It is important to recognise that while these threats and attacks can impact all people in the community, women in particular bear the brunt. We are sick to death of the damage they do. We are sick to death of the threats of harm that the system and the systems that support it make on women's ability to participate in society. We are sick to death of the intimidation, harassment and fear that is waged upon us when we seek to engage in public debate and interact with our friends, communities and families. It is important to recognise that while these threats of harassment, intimidation or aggression are made by individuals, it is individual women who are the victims. The systematic failure of our systems—the justice system and the laws, and government policies and processes—has prevented any progress on this matter. Violence towards women, as well as their harassment and intimidation, demonstrate that there is something very sick and wrong with our society. It is a failure of the laws that have been put in place to create and entrench patriarchy and inequality in our society that perpetuate a lack of respect for women regarding these issues.

These changes are welcome and essential. However, we need to recognise that, while there are still women who face these real and present dangers every day but feel uncomfortable and unsafe to report them through the formal channels, the police or other mechanisms of the justice system because they do not have faith in the patriarchal structure that has oppressed women for so long, other avenues are available. We should be telling women to be angry about this. We should continue to call this out. Threats to women's participation in society when patriarchal systems that oppress women are in place need to be called out, and I will continue to call them out in this place.

Ms ROBYN PRESTON (Hawkesbury) (15:11):

:46 I make a contribution in support to debate on the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020. In particular, I highlight the amendment to the Criminal Procedure Act 1986 to clarify the role of a children's champion, also known as a witness intermediary. In 2015 the Government made a commitment to pilot a specialist child sexual offence evidence pilot. This included the introduction of children's champions to facilitate communication with child witnesses through the trial process and an expanded use of prerecorded evidence in criminal court proceedings. The pilot commenced on 31 March 2016. In 2019 it was extended until June 2022 and renamed the Child Sexual Offence Evidence Program. The program operates in two locations: the Newcastle District Court and the Sydney District Court at the Downing Centre. It targets child sexual offence witnesses who are under the age of 16, as well as those aged 16 or 17 who have communication difficulties. The program aims to reduce the trauma experienced by child witnesses in the criminal justice process while preserving the rights of an accused to a fair trial.

A children's champion is appointed by the court to assist with the communication needs of a child witness. They are accredited professionals from primary disciplines, including speech pathology, social work, psychology, teaching and occupational therapy. Their role involves assessing a child's communication needs prior to giving evidence; communicating to the witness questions put to them, if needed; communicating to a person asking a question the answers given by the witness; and also explaining such questions, so far as necessary, to enable them to be understood by the witness, or the person in question.

A children's champion is not a support person. Rather they are an independent officer of the court who has a duty to impartially facilitate the communication of and with the vulnerable witness so the witness can provide their best evidence. Children's champions provide assistance at all stages of the child giving evidence and play an important role in the trial process. A child's evidence-in-chief usually consists of a prerecorded interview with police which is then played in court by the prosecution once a trial has commenced. The content of the video serves as a substantial part of the evidence-in-chief, if not all of it.

Although the children's champions' involvement at the police interview stage is a well-established practice that was anticipated from the commencement of the Child Sexual Offence Evidence Pilot, the legislation does not currently specifically discuss the use of children's champions in police investigations or interviews. On occasion this has led to a lack of clarity as to whether a children's champion who was engaged at the police interview stage may be used at trial. The amendment to clause 89 of schedule 2 to the Criminal Procedure Act contained in this bill will make clear that a person is not prevented from being appointed as a children's champion for a witness during the trial proceedings if the person assisted as a children's champion during the investigation stage. This amendment will ensure that the policy intent of children's champions' involvement in the Child Sexual Offence Evidence Program can be met and the established practice is affirmed.

This amendment in this bill will provide an unambiguous legislative basis for the children's champion to be involved at the police interview stage, it will ensure consistency for the child and it will ensure that the questioning of a child in their police interview is subject to the same guidance that is provided to a court. This amendment will enable a children's champion to interact appropriately with a witness in a professional capacity prior to being appointed by the court and will improve the quality of the evidence before the court to the benefit of all participants in proceedings. I commend the bill to the House.

Mr ADAM CROUCH (Terrigal) (15:16):

:44 I make a brief contribution to the Stronger Communities Legislation Amendment (Miscellaneous) Bill 2020. I acknowledge that it is not being opposed by those opposite. I also acknowledge the presence of the Attorney General in the Chamber. I congratulate the members for the electorates of Seven Hills, Oatley and Camden. I also congratulate the member for Hawkesbury on her excellent contribution. I welcome the opportunity to speak in support of the bill. In particular I will speak about the amendments to section 27 of the Crimes (Sentencing Procedure) Act 1999.

Currently section 27 of the Crimes (Sentencing Procedure) Act sets out eligibility related to victim impact statements for various types of courts and jurisdictions. However, the Children's Court is not listed. Instead section 33C of the Children (Criminal Proceedings) Act 1987 provides that the provisions of the Crimes (Sentencing Procedure) Act which relate to victim impact statements apply to any offence dealt with by the Children's Court as if it were the Local Court. As a result, the Children's Court regime for victim impact statements is subject to the same limitations as those set for the Local Court, namely, that a victim impact statement can be made in respect of certain eligible offences but it cannot be made in respect of strictly indictable offences.

Victim impact statements play an important part in the criminal justice process, giving victims a voice and providing them with the opportunity to explain to the sentencing court the impact and harm an offence has had on them. Schedule 1.6 [8] to the bill will amend section 27 of the Crimes (Sentencing Procedure) Act to clarify that victim impact statements are admissible in the Children's Court for the same offences as in the Local Court. The Children's Court also hears and considers strictly indictable offences. However, the Local Court does not hear strictly indictable offences. Therefore the amendment will extend to strictly indictable offences heard in the Children's Court, consistent with their availability in the District Court and Supreme Court.

This will maintain consistency with the Local Court's victim impact statements regime as far as practical while expanding the Children's Court's victim impact statements regime to include strictly indictable offences. This will resolve what appears to be an unintended consequence of matching the Children's Court's victim impact statement regime to that of the Local Court, where strictly indictable offences are not dealt with. This amendment will also remove the potential for irregular or inconsistent interpretations of existing legislation by expressly providing for Children's Court victim impact statement eligibility in section 27 of the Crimes (Sentencing Procedure) Act. This will allow provisions related to victim impact statements for all jurisdictions to be set out in one Act. This will reduce complexity and ensure that the victim impact statement legislative regime is clear and consistent.

In conclusion, I am very pleased to support the amendments in this bill. I acknowledge the Attorney General and the great work of both him and his team, which will make the victim impact statement regime clear on the face of the legislation and resolve what appears to be an unintended consequence of matching the Children's Court victim impact statement regime to that of the Local Court. It will also ensure that victims of strictly indictable offences are not prevented from giving victim impact statements in the Children's Court. I commend the bill to the House.

Mr MARK SPEAKMAN (CronullaAttorney General, and Minister for the Prevention of Domestic Violence) (15:20):

—:24 In reply: I thank the members for the electorates of Liverpool, Seven Hills, Prospect, Oatley, Charlestown, Camden, Newtown, Hawkesbury and Terrigal for their contribution to the debate. The member for Liverpool expressed concerns about the scope of take-down powers, also known as rectification orders, for intimate image abuse offences under section 91S of the Crimes Act 1900, including the ability to order the removal of an image posted by a third party. Currently section 91S gives a court the power to order a person to remove, retract, recover, delete or destroy an intimate image when that person has been found guilty of an offence under section 91P, to record intimate image without consent, or section 91Q, to distribute intimate image without consent.

This bill proposes to extend this order to include the circumstance where a person convicted of offences under section 91R, to threaten to record or distribute an intimate image, may equally have those images available to distribute or upload. This reform is directed at court powers and responses to offences established under New South Wales laws. Any person who has distributed an image without the consent of the person is liable to prosecution under the Crimes Act. They do not need to be the person who actually generated or recorded the image. Sharing it via social media, for example, knowing that the person depicted did not consent or reckless as to whether they consent would make that person liable to prosecution.

However, there are other avenues available to a person who is a victim of intimate image abuse to ensure the removal of an image outside of the criminal justice system in New South Wales. These steps can be instigated at any time. On 31 August 2018 the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018 commenced and introduced take-down powers for intimate images for the eSafety Commissioner. The Enhancing Online Safety Act 2015 now provides a civil penalties scheme that allows the commissioner to help with the removal of intimate images or videos from online platforms. Complaints can be made by individuals to the eSafety Commissioner under sections 19A and 19B of that Act to report image-based abuse. This is easily accessible via an online form on the eSafety website.

The eSafety Commissioner can issue removal notices requiring a social media service, electronic service, internet service, hosting service or end user of a social media service to remove an intimate image. Failure to comply with a removal notice attracts a civil penalty of 500 penalty units or $111,000. In the event that an offender who is prosecuted for intimate image offences in New South Wales has already been subject to a removal notice, section 91S of the Crimes Act provides the court with enough flexibility to take this into account and may only order for the image to be deleted after ascertaining that it has in fact been removed.

The member for Liverpool asked that I provide a report relating to the indictable process review being conducted by the Chief Judge of the District Court, the Hon. Justice Derek Price, AM. This review remains ongoing and is in relation to case management and jury processes in criminal proceedings in the District Court and Supreme Court. The purpose of the review is to reduce delays by streamlining the process for dealing with serious criminal matters. The Department of Communities and Justice is assisting the Chief Judge with his review of possible reforms in case management and jury processes, focusing on improved procedures to ensure trial readiness, better pre-trial case management, the potential for new technology to assist efficiency and case management, simplifying decision-making processes for juries and examining potential for limiting jury use in certain circumstances.

The review builds on 2018 reforms to encourage early appropriate guilty pleas and measures to reduce the workload of criminal matters in the district and supreme courts. The outcome of the first stage of the review, namely with respect to case management, is publicly available in District Court Practice Note 18. The review included targeted consultation with legal stakeholders to discuss the issues and complexities of case management and to identify areas that could benefit from further court oversight. The reforms in the bill at schedule 1.8 [4] to [7] will support the actions taken by the Chief Judge in ensuring more effective pre-trial case management in the District Court.

I briefly clarify one aspect of the joint trial reforms following comments by the member for Liverpool, who observed that, currently, when the prosecution is permitted to rely on different counts on an indictment as cross‑admissible tendency evidence, it would be rare for the counts not to be tried together on the same indictment. However, I note that where the prosecution is not permitted to rely on the counts as tendency or coincidence evidence, the counts on the indictment would ordinarily be severed and would proceed as separate trials. This amendment applies to both of these situations, so that there will be a presumption in favour of a joint trial whether or not the prosecution is ultimately permitted to rely on the evidence as tendency or coincidence evidence.

This reflects the royal commission's sentiment that joint trials should be more common, as well as promoting a more efficient use of time for the courts, the prosecution and defendants. The bill is an important part of the Government's regular legislative review and monitoring program. Many of the amendments in the bill are important steps towards further strengthening our justice system. They address gaps in the law, support procedural improvements, particularly in relation to court processes, clarify uncertainty and correct errors in legislation. I commend the bill to the House.

The SPEAKER:

The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

Mr MARK SPEAKMAN:

I move:

That this bill be now read a third time.

Motion agreed to.