2nd Reading Speech

20 June 2018

The Hon. ADAM SEARLE (20:05): I lead for the Opposition in debate on the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018. The Opposition does not oppose the bill. Many of the provisions in this legislation emerge from recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse; others emerge from the Joint Select Committee on Sentencing of Child Sexual Assault Offenders, and the Child Sexual Offences Review, which was recommended by the joint select committee. A number of specific offences are introduced or amended by the bill and there are broader changes to both offences and sentencing. The bill introduces a new provision in section 316 of the Crimes Act, which is described as “Concealing serious indictable offence”. There is already a concealment offence in legislation, specifically section 316 of the Crimes Act. This has been the subject of previous controversy, with some arguing that the moral obligation to report wrongdoing by someone else should not be translated into criminal liability.

It has been subject of inquiries by the Law Reform Commission, with some arguing against the existence of the offence. Section 316 provides that it is a criminal offence to not report a serious indictable offence. That can clearly already include those forms of child abuse that are a serious indictable offence. The recent conviction of Archbishop Wilson from Adelaide concerning events in the Hunter is an example of the provisions of that section being used effectively. On the face of it, this applies in the confessional—that is, there is already a law that would breach the seal of the confessional in this State. It never seems to have been used in that way, but the section requires that the prosecution prove the defendant knows or believes an offence has been committed.

As the Attorney General indicated in his second reading speech, that is a high standard to achieve. An alternative offence is now provided in this bill, in new section 316A. It is restricted only to child abuse offences, in contrast to section 316, which has no similar limitation—although it is limited to serious indictable offences. New section 316A, however, is not restricted to serious indictable offences. Child abuse offences are defined for the purposes of this new section 316A (9), which also includes a schedule of offences. Clearly, concealment of some of those offences would not have been caught by section 316. New section 316A requires less to be proved than section 316. It will apply where a person knows, believes or reasonably ought to know that a child abuse offence has been committed.

This imposes an objective standard that will avoid wilful blindness. It means actual knowledge does not necessarily have to be proved. There is a defence of reasonable excuse of which a non-exhaustive list is provided in the section. New section 316A removes child sex abuse concealment offences entirely from section 316. New section 316A was amended to no longer require the prior consent of the Attorney General for prosecution of various professions, including the clergy. Even prior to amendment by the Attorney General in the other place, as a matter of practicality, the Attorney General’s fiat had been delegated to the Director of Public Prosecutions.

So while there may not be a significant practical change, there is a significant legal change in that the office that has carriage of serious matters anyway will be in the driver’s seat for approval of prosecution of the clergy and other professions under new section 316A. Members on this side of the House welcome the Government’s adoption of this very significant change in the law. It significantly improves the law and its operation, and provides more comfort to the wider community that the law will be applied to the fullest extent in this most difficult area of law and public policy.

The penalty is the same as for section 316: two years maximum imprisonment or five years where a person solicits or accepts a benefit in exchange for not reporting. The offence is not retrospective. Given the reports of declining numbers of clergy and people attending confessions—or reconciliations, as I believe they are now called—there is a practical issue as to how often it would be used to break the seal of the confessional. Nevertheless, it is a significant development in the law. As we have seen in the prosecution and conviction of Archbishop Wilson, the existing law did provide for breaching the confessional when necessary in important cases. This change reinforces that aspect of the law that some people thought was not there and may not have been a regular feature of the law’s application.

Another new offence, also recommended by the royal commission, is in section 43B of the Crimes Act, shortly described as a failure to reduce or remove the risk of a child becoming a victim of child sexual abuse. This offence applies only to adults who work as an employee, contractor, volunteer or otherwise for an organisation that engages in child‑related work. The offence will occur if the person knows another adult who works in the organisation with children and poses a serious risk of physically or sexually abusing a child under the care, authority or supervision of the organisation. The risk will need to exist at the time it is apparent to the person and the person will also need to have the power to reduce or remove the risk because of their position in the organisation. For the offence to be proven, the person must be criminally negligent in their failure to remove or reduce the risk. The organisations referred to in the section are those with employees, volunteers or contractors doing child‑related work within the Child Protection (Working With Children) Act. The maximum penalty is two years imprisonment. The offence will not be retrospective.

Item [20] of schedule 1 omits the current offence of section 66EA of persistent sexual abuse of a child. That offence was only introduced in 1999 in an attempt to deal with persistent cases of abuse where it was difficult for victims to distinguish individual incidents and provide particulars of each occasion or incident. Requiring that to be done in a prosecution would mean, quite perversely, that it would be easier to prosecute in a circumstance where there was only one discrete assault, rather than a large number of persistent assaults over time—an outcome that, of course, none of us here or in the wider community wants, accepts or tolerates in the law. The royal commission recommended the adoption of an offence based on the Queensland model for this type of circumstance. I understand that this model has also been adopted in South Australia. The Attorney General’s second reading speech and that given by the Minister in this Chamber says the bill now adopts that model.

New section 66EA will now criminalise the maintaining of an unlawful sexual relationship with a child under 16 years of age. Subsection (2) defines “unlawful sexual relationship” as one in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. “Unlawful sexual acts” are defined in new section 66EA (15) by reference to existing offences. They extend, for example, to an act of indecency with a female under 16 years. Subsection (4) provides that the prosecution does not have to allege the particulars normally required for a prosecution, but is required to allege the particulars of the period over which the relationship existed or is said to have existed. Subsection (5) states that the jury must be satisfied that the unlawful sexual relationship existed but is not required to be satisfied of the particulars of any unlawful sexual act, nor are members of the jury required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

If the jury is not satisfied that the offence under this subsection is proven but is satisfied of a particular act, then the defendant may be convicted in relation to that incident. The maximum penalty for the offence is life imprisonment. Proceedings can be instituted only with the approval of the Director of Public Prosecutions. According to the second reading speech given by the Attorney General and by the Minister in this place, this is to ensure that it is used only where the victim cannot give sufficient particulars to charge individual offences. The offence will apply retrospectively. The New South Wales Bar Association has raised concerns with the Opposition about this provision and has referred to its major concern regarding the proper administration of justice. To quote from its briefing note:

This new offence with a maximum penalty of life imprisonment raises the following concerns:

1.It does not require a jury to agree as to the nature of the sexual acts involved in order to convict an individual;

2.It does not recognise the range of sexual acts that can occur involving different levels of criminality and attracting penalties proportionate to the actual crime;

3.It creates significant difficulties for a sentencing court and a real risk that the sentence imposed will be much more severe than justified by the verdict of the jury.

The Bar Association points to the Victorian example of clause 4A in schedule 1 of the Criminal Procedure Act 2009. It argues that:

The Victorian provision avoids the seriously problematic aspects of the new s66EA. It avoids any potential breach of the principle that a sentencing court should sentence in accordance with the jury’s findings with respect to the elements of the offence. It overcomes the difficulties with particularising specific sexual incidents where there is continuing sexual abuse, without creating the potential for real injustice that arises from the new s66EA.

The shadow Attorney General in the other place asked the Attorney General to respond to those concerns, and he did so. I will not repeat here what the Attorney General said; that will be available inHansard. But the Opposition is not persuaded that the concerns raised by the Bar Association are such that the provisions of the bill before the House should be amended in that regard and so it accepts this aspect of the bill as it stands.

There are also changes to grooming laws. A new offence criminalises grooming a person—normally a parent or carer—with the intent of procuring a child under 16 under the care of that person for unlawful sexual activity. This requires the offender to provide a financial or other material benefit to that adult. Again, proceedings can be instituted only with the approval of the Director of Public Prosecutions. The existing offence of grooming a child under 16 in new section 66EB is broadened to include providing a financial or material benefit to the child. The provisions of section 73, headed “Sexual intercourse with child between 16 and 18 under special care”, are amended and a new offence is included in new section 73A so that the behaviour criminalised extends beyond intercourse to sexual touching. Recommendation 1 in the October 2014 report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders—of which the shadow Attorney General was a member—reads as follows:

The Committee recommends that the NSW Government reviews all offences and other provisions in NSW which are particularly relevant to child sexual assault offences and offenders with a view to:

• Consolidating and simplifying the current framework, where possible, so that it is more user-friendly for the legal community and victims.

• Identifying areas where current offences could be consolidated or revised.

• Identifying whether any new offences should be created, to fill any gaps in the existing framework.

Recommendation 3 was that the review be carried out and finalised as a matter of high priority. Approximately four years later, the consequences of those recommendations are implemented, at least in part. This involves the reorganisation of division 10 of the Crimes Act, together with modernising and reordering amendments. Additionally, the language of indecency is now replaced by “sexual touching” and “sexual act”, which is a sensible change. People will have a much better idea of what a charge actually means if those new labels are applied. “Sexual touching” is intended to mean contact offences involving some form of physical contact with the victim. “Sexual acts” means offences that do not involve contact with the victim but involve sexual conduct. The sexual act offence penalties are the same as is currently the case for indecency offences.

Penalties for sexual touching are the same as is currently the case for indecent assault but there is a new offence of sexual touching of a child under 10, with a maximum penalty of 16 years and a standard non-parole period of eight years.

Schedule 2 to the bill has an important provision amending the Child Protection (Offenders Registration) Act in relation to the Child Protection Register. A new section 3C provides a discretion to a court to, in some circumstances, treat a child offender as “non-registrable”—that is, not to list them on the Child Protection Register. The circumstances in which the discretion can be exercised are if the victim was under 18 years of age, where the child has not previously been convicted of a class 1 or 2 offence, where full-time detention or an operative control order are not imposed and the court is satisfied that the person does not pose a risk to the lives or sexual safety of children.

There are other important provisions concerning the practice known as “sexting”. The provisions seem to be a sensible attempt by the Parliament to come to terms with behaviour which, depending where members are on the generational scale of things, may be regarded as hard to understand but which should not be criminalised. A new section 91HA (9) provides that it is a defence to a charge of possessing child abuse material if the only person depicted in the material is the accused person. Subsection 10 provides a defence to the charge of producing or disseminating child abuse material if the person produced or disseminated material when under 18 and if the only person depicted was the accused.

A new section 91HAA provides that a person is not guilty of possessing child abuse material if the possession occurred when under 18 years and a reasonable person would consider the possession of the material as acceptable, having regard to a number of factors. One of those factors is the relationship between the accused and the child depicted. The use of a reasonable person and acceptability obviously creates a degree of uncertainty, but given the complexity of the issue that rather follows—rather than it being any failure in the drafting or intellectual rigour behind the provision itself. I think these are useful provisions that should avoid the potential for young people to run the risk of being criminalised unnecessarily. It is quite a sophisticated and nuanced approach to the drafting and substance of these offences.

Another provision relating to children and young people is item [46] of schedule 1, which, among other things, provides a new defence in new section 80AG. It is a defence to the prosecution of various sexual offences against a child aged between 10 and 16 years if the victim is of or is above 14 years of age and the age difference between the alleged victim and the accused is no more than two years. The heading of the section is “Defence Of Similar Age”. Whatever one might want to say about such behaviour, it is hard to see why it should be in the purview of the criminal law. This is another attempt in the drafting and the thinking behind the provision to criminalise that which should be criminal, and to try to treat other behaviours as not being criminal where, on a fair analysis, it is not warranted. It is always a difficult balancing act in this area.

Schedule 3 amends the Crimes (Sentencing Procedure) Act. One amendment provides that in relation to historical child sexual abuse, a court, when sentencing an offender, cannot regard good character or behaviour as a mitigating factor if that was of assistance in the commission of the offence. That is quite important because often in child abuse situations offenders are able to access the victims and trade upon their trusted position. That should not, upon conviction, be able to be prayed in aid—or used in aid—upon sentencing if that was the same currency, as it were, used to commit the offence. At present, that is the case for current offences but this extends it to historical offences.

A new section 25AA provides that an offender must be dealt with by the court in accordance with the sentencing patterns and practices at the time of sentencing in relation to child sexual offences. The current common law provision in this State is that the court should be guided by sentencing patterns that were in place at the time of the offence. To do otherwise, as has been historically argued, is a form of retrospectivity and thus bad in principle. In practical terms, in relation to these offences previous sentencing patterns were less severe than is presently the case. The objection in principle is met by three powerful arguments. The first is that it relates to child sexual offences and not more broadly, which should be pursued with heavy moral opprobrium.

The second is that the earlier and more lenient sentencing patterns were not the result of some carefully thought-out and sensibly calibrated analysis or principles of law; but, rather, resulted from attitudes that failed to recognise or, perhaps given what we now know, refused to accept the seriousness of the offences that have occurred historically. Thirdly, as the Attorney pointed out in his second reading speech, the maximum penalty for the offence will remain what it was at the time of the offence. So the substantive law will remain unchanged, but the sentencing approaches and principles will be as at the point of conviction. This, as I understand it, is the model adopted in England. The standard non-parole period, if any, is also that applicable at the time of the offence, rather than at sentencing.

The bill will also deal with what was section 78 of the Crimes Act. There was a limitation period that meant various sexual offences against some children had to have prosecutions commenced within 12 months of the offence. The limitation period was abolished in 1992 but the abolition was not made retrospective. This bill will make that abolition retrospective, which means these types of historical offences committed prior 1992 can now be prosecuted if the evidence is available. The Criminal Procedure Act is amended to provide for a new type of jury direction to allow the provision of educative material. A new section 80AF has a procedural provision to deal with complexities in offences occurring over a period.

With those comments, the Opposition makes it clear that it does not oppose the legislation. The Opposition sees much good in it and hopes some difficulties that have been identified are worked out over the implementation of the new legislation. The Opposition, like the Government and every party, will remain vigilant in this important area of public policy and law.