Criminal Laws Amendment Bill H.B. 4, 2024

This is a Bill — the Criminal Laws Amendment (Protection of Children and Young Persons) Bill, H.B. 4 of 2024 — and not law as published. It would confirm the amendments already made by Presidential emergency decree in S.I. 2 of 2024.

The Bill's memorandum explains the background. The Criminal Law Code protected "young persons", defined as boys and girls under sixteen, while the Constitution treats everyone under eighteen as a child. In Kawenda v Minister of Justice the Constitutional Court declared the definition in section 61 and sections 70, 76, 83 and 86 of the Code unconstitutional and void. The President's intervention was made more urgent by a court-ordered release of all offenders convicted of statutory rape.

The Bill would redefine "young person" as a boy or girl under eighteen, and would amend the definition of "extra-marital sexual intercourse" to require both spouses to be eighteen or over, so that a form of child marriage would not make sex with a child lawful.

The replaced section 70 would make sexual intercourse, an indecent act or solicitation involving a young person an offence carrying a fine up to level 12, up to ten years' imprisonment, or both, with consent no defence. Where the parties are within three years of each other in age, no charge could be brought without the Prosecutor-General's authority, given after considering a probation officer's report which the Prosecutor-General would not be bound to follow. Believing the young person was eighteen would be a defence, but apparent physical maturity alone would not be reasonable cause.

The Bill would also add HIV back into the definition of a sexually-transmitted disease in section 78 — the separate HIV offence in section 79 having been repealed by the Marriages Act in 2022, leaving deliberate HIV infection uncriminalised. Procuring would carry a fine up to level fourteen with ten years' imprisonment where a young person is procured, and an owner allowing a young person into a place for unlawful sexual conduct would face up to ten years where the child is under twelve, or seven years where over twelve.

Finally, the Bill would widen Part XIVA of the Criminal Procedure and Evidence Act from "vulnerable" to "vulnerable or incapacitated" witnesses, allowing those who cannot speak or hear, or who cannot testify orally for any reason, to give evidence in writing, by signs or by other augmentative and alternative communication in open court, through an intermediary, with a support person present. An intermediary who is not a State interpreter would have to take the interpreter's oath.

Because this is a Bill, no effective date applies. The measures it confirms were enacted as the Criminal Laws Amendment (Protection of Children and Young Persons) Act, Act 1 of 2024, gazetted and in force on 18 September 2024.