Statutes Amendment (Attorney-General's Portfolio) (No 2) Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Long title, page 1—Delete 'various Acts within the portfolio of the Attorney-General' and substitute:

the Child Sex Offenders Registration Act 2006; the Correctional Services Act 1982; the Criminal Law Consolidation Act 1935; the Cross-border Justice Act 2009; the Justices of the Peace (Miscellaneous) Amendment Act 2016; the Real Property Act 1886; the Summary Procedure Act 1921; and the Surveillance Devices Act 2016

No. 2. New Parts, page 2, after line 8—After clause 2 insert:

Part 1A—Amendment of Child Sex Offenders Registration Act 2006

2A—Amendment of Schedule 1—Class 1 and 2 offences

Schedule 1, clause 2(ea)—delete paragraph (ea) and substitute:

(ea) an offence against section 50 of the Criminal Law Consolidation Act 1935 (persistent sexual abuse of a child);

(eab) an offence of persistent sexual exploitation of a child (see section 50 of the Criminal Law Consolidation Act 1935 as in force before the commencement of Part 1C of the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017);

Part 1B—Amendment of Correctional Services Act 1982

2B—Amendment of section 4—Interpretation

(1) Section 4(1), definition of child sexual offence, (ba)—delete paragraph (ba) and substitute:

(ba) persistent sexual abuse of a child;

(2) Section 4(1), definition of sexual offence, (ba)—delete paragraph (ba) and substitute:

(ba) persistent sexual abuse of a child;

Part 1C—Amendment of Criminal Law Consolidation Act 1935

2C—Amendment of section 49—Unlawful sexual intercourse

(1) Section 49(5a)—delete subsection (5a)

(2) Section 49—after subsection (8) insert:

(9) For the purposes of this section, a person is in a position of authority in relation to a person under the age of 18 years (the child) if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2D—Substitution of section 50

Section 50—delete the section and substitute:

50—Persistent sexual abuse of child

(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

Maximum penalty: Imprisonment for life.

(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.

(4) However—

(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and

(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(5) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.

(7) A person may be charged on a single indictment with, and convicted of and punished for, both—

(a) an offence of maintaining an unlawful sexual relationship with a child; and

(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.

(8) Except as provided by subsection (7)—

(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and

(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.

(9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.

(10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.

(11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).

(12) In this section—

adult means a person of or over the age of 18 years;

child means—

(a) a person who is under 17 years of age; or

(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;

predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment;

unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;

sexual offence means—

(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

(b) an attempt to commit, or assault with intent to commit, any of those offences; or

(c) a substantially similar offence against a previous enactment;

unlawful sexual relationship offence means an offence against subsection (1).

(13) For the purposes of this section, a person is in a position of authority in relation to a child if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2E—Amendment of section 57—Consent no defence in certain cases

Section 57(4)—delete subsection (4) and substitute:

(4) For the purposes of subsection (1), a person is in a position of authority in relation to a person under the age of 18 years (the child) if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2F—Amendment of section 63B—Procuring child to commit indecent act etc

Section 63B(6)—delete subsection (6) and substitute:

(6) For the purposes of this section, a person is in a position of authority in relation to a child if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person's duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2G—Sentencing for offences under previous law

(1) A sentence imposed on a person, before the commencement of this section, in respect of an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 2D of this Act) is taken to be, and always to have been, not affected by error or otherwise manifestly excessive merely because—

(a) the trial judge did not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and the person was not sentenced on the view of the facts most favourable to the person; and

(b) the sentencing court sentenced the person consistently with the verdict of the trier of fact but having regard to the acts of sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt.

(2) Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 2D of this Act) the following provisions apply:

(a) a verdict of guilt handed down by the trier of fact in relation to the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information;

(b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt;

(c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person.

(3) This section does not apply in relation to the particular matter that was the subject of the determination in Chiro v The Queen [2017] HCA 37 (13 September 2017).

Note—

Except as provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37 (13 September 2017).

No. 3. Part 5, page 4, lines 1 to 6—Delete Part 5 and substitute:

Part 5—Amendment of Summary Procedure Act 1921

7—Amendment of section 4—Interpretation

Section 4(1), definition of sexual offence, (ba)—after 'child' insert:

or persistent sexual abuse of a child

7A—Amendment of section 99AAC—Child protection restraining orders

Section 99AAC(8), definition of child sexual offence—after paragraph (d) insert:

(daa) an offence of persistent sexual abuse of a child under section 50 of the Criminal Law Consolidation Act 1935;

Part 6—Amendment of Surveillance Devices Act 2016

7B—Amendment of section 3—Interpretation

Section 3(1), definition of review agency, (a)—delete 'the Police Ombudsman' and substitute:

the reviewer under Schedule 4 of the Independent Commissioner Against Corruption Act 2012

Consideration in committee.

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

I can indicate that we are very pleased with the amendments made by the Legislative Council and happy to accept them.

Ms CHAPMAN: I indicate that the Statutes Amendment (Attorney-General's Portfolio) (No 2) Bill 2017 with the amendments made in another place today are accepted. I wish to make a few comments. Firstly, the further amendments that have been considered and included relate to the government's action to deal with the reform of law in respect of persistent sexual abuse of a child. Currently, under section 50 of the Criminal Law Consolidation Act there is an offence for sexual exploitation of a child, which has now been in operation for several years, which provides for an offence to deal with sexual misconduct against children that was not expected to be used as often as it is and has been.

It is a type of offence that was really designed to be utilised in the more exceptional cases where the child victim was primarily either too young or in a circumstance where they were not able to particularise the offending conduct in the usual way. I do not need to go into the detail about what our criminal law standards require, but I think it was an important initiative. This type of law was introduced around Australia to try to ensure that we did provide some relief to the appalling and vile behaviour of people who entered into these relationships and pursued sexual abuse of children.

It was an important initiative, but it has clearly been used routinely in sex cases now, even when the complainant is not a young child and in fact is quite capable of particularising the instances of the offending conduct in the usual way. Nevertheless, in the course of these cases, the rules to apply in relation to the process of the prosecution and the management of it in trial—in particular, where there is a jury trial—have led to some complication, and one of the South Australian cases of Chiro has ended up in the High Court.

I think members are familiar with the publicity in the last few days around this case. This determination was made on 13 September, and the High Court confirmed that Mr Chiro's sentence was to be set aside, because that process had not been properly followed, and that he is to be resentenced. In fact, as we now know, he is to be resentenced tomorrow. Anything we do in this parliament today is not going to affect that case. That is a matter which will follow its course.

On 14 August, so a month before, the Royal Commission into Institutional Responses to Child Sexual Abuse gave a number of recommendations in one of its interim reports, in this case on the criminal justice aspects and, in particular, recommendations 21 to 24 in respect of persistent child sexual abuse offences. I want to place on the record what they said about this. They said at that time:

Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that:

a. the actus reus is the maintaining of an unlawful sexual relationship

b. an unlawful sexual relationship is established by more than one unlawful sexual act

c. the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts

d. the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed

e. on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.

They even helpfully provided a draft in recommendation 2 on the recommended reform and legislation to ensure that these aspects were covered. They went on to recommend that there should be the establishment of legislative authority for the course of conduct charges and, finally, that they should give some consideration to providing for two or more unlawful sexual acts that are particularised for the maintaining of the relationship.

The bill that has been returned to us incorporates a new section 50 and, in some ways, not before time. It comes for urgent deliberation by this parliament because the government clearly took the view that they would wait to see what would happen in the Chiro case before they would act, a bit like a lottery but we are playing with the prosecution of children's cases, which I think is unhelpful and really quite inappropriate; nevertheless, that is the approach they took. We now find ourselves with a bill that incorporates a new section 50 and largely incorporates the recommendations.

For the record, we accept that the provision in respect of recommendation 21(e) is that the lower statutory maximum penalties proposal is inconsistent with what we have had in respect of sentencing law for a decade and therefore it is appropriate that we do not progress that—I agree with that, and think that that is reasonable to be accommodated—and that the definitions in respect of the age of the child, together with the relationship in respect of the position of authority (I think we are moving it to 'prohibited relationship' or something of that nature), are also consistent with some standards which we have imposed in South Australia and which I agree should be continued.

The drafting of the legislation, after discussion with Mr Kimber and considering the Criminal Justice report recommendations of the royal commission, we suggest is on the face of it consistent. The question is: why are we being asked to deal with this in such an urgent manner? The government presented to us the day before yesterday that there was an urgent matter that needed attention because there are three pending cases awaiting sentencing. One of them is next week and the others are in mid-November. I think that two are for sentencing submissions to be made, where there has been a trial and a determination but sentencing is to be put. I think the third is where further submissions will be put on sentencing.

Everyone has been waiting for the High Court decision, and that has unfortunately told us, as we can best put it, that the process that has been followed falls short of being able to allow Mr Chiro's sentence to stand. I think it is fair to say, and the government have said this, that there was a general assumption that in the cases where this was going to be used the obligation in respect of directing juries, and therefore the reliance on the facts outlined in the factual situations to support the particulars of the offending relationship, was such that they believed they were able to rely on it. The High Court has said, 'No, the standards are these, and we need to have it remedied.'

I simply make the point that if the government get things wrong, or they want to play lucky dip on something, or they want to keep things to the last minute, then they can expect that the parliament will not be able to progress this matter in the orderly way it should in circumstances where there are obviously matters that, in full disclosure, justify some urgency. At all material times this week, the government have been offered the opportunity to discuss this matter, even last night under the umbrella of another piece of legislation but, no, they insisted that they wanted to do it the other way.

In any event, from the public's point of view, from the children who are victims' point of view, it is important that we get these things right and that we properly endorse this through the parliament and not be expected just to rubberstamp it. They want us to progress these matters when it is necessary to do so, but let me say this: when governments do this type of thing, and they throw this in, and they put in legislation that includes the retrospective applicability, it does raise the attention of those who work in this area and who are obviously very learned in respect of the legal arguments that have been presented. I am not confident, on the information that has been provided to me, that this is the end of these cases as far as them being resolved.

I suppose to some degree we might salvage the opportunity of bringing the full intent of those who are prospectively to be sentenced, and that way well be a very good thing. What we do not do by doing this legislation is exclude the fact that there will be any challenges in respect of the cases and the people who are still sitting in our prisons. Because this piece of law has been used to a much greater extent than I had ever anticipated and probably others—nevertheless, it has been, and there are a number people who have been prosecuted and tried by a jury in the circumstances that attract the concerns raised by the model demanded by the High Court—I think we are a long way from being free of further litigation.

I am not saying that that is anyone in particular's fault, but I make this point: when we do this type of rushed legislation, we leave open a situation where we are not able to consider all of the matters. Just at first blush in having to deal with this matter in the last 48 hours, I am disappointed to note that it is probably unlikely that there will not be challenges to this.

That is disappointing because there will be more taxpayers' money spent because the government want to deal with something quickly, and they want to be able to protect themselves from criticism of not trying to cover all those others who are still sitting in prison. It is a shabby way of progressing it; nevertheless, on the face of it we obviously must do everything we can here to try to ensure for those who are victims of these offences that, where the offenders have been successfully prosecuted, they are appropriately sentenced. For that reason, we do not make any other objection to the amendments.

Sitting extended beyond 18:00 on motion of Hon. J.R. Rau.

The Hon. J.R. RAU: First of all, just to put it on the record and make it very clear, we have been moving very quickly to deal with this matter since the High Court determination was made, and this was the first available opportunity for us to use the parliament to rectify the problem. The second thing is that despite criticism from the deputy leader, it is not the practice of this government, or it is not the practice that I have adopted, of as a matter of course routinely seeking to legislate prospectively to prevent court determinations which may go against us ultimately when determined.

There may be exceptional circumstances where that is appropriate, but generally speaking you wait until the appeals process has been exhausted before you wade into the decision as to whether or not you wish to effectively use the parliament to overrule a decision of the courts, so that is why we have not been acting in relation to this matter until now. This was our first opportunity.

Regarding the comments made about being given a different opportunity, the different opportunity was to put it in portfolio bill No. 3. Portfolio bill No. 3 is one which we have just commenced the second reading speech for, and in the ordinary course that is exactly what would have happened, which would have meant that portfolio bill No. 3 had not even left this place at close of business today, which means it would not have then entered the Legislative Council for another period of time and then it would have been there for however long it would be there. That would have been completely unsatisfactory from the point of view of resolving this matter in a timely fashion.

I will not canvass the other things that have been canvassed here and elsewhere over the last day or two because it does not help anybody. What I thought I would do is just say that although it has been difficult getting to this particular moment in time, which is a moment where common sense has prevailed over other less desirable sentiments, nevertheless, here we are. Common sense has prevailed and the people of South Australia are better off because a number of absolutely despicable individuals who have committed horrible offences are going to be tried and sentenced according to the rules that everybody thought they were always going to be tried and sentenced according to, and that is obviously in the public interest. It is obviously the right thing to do.

I thank the crossbenchers in the other place for their assistance in foreshadowing that they would not support an adjournment of this bill in the other place, thereby making it necessary for this to be actually determined in the other place today. I would like to say thank you to all of them for that because, were it not for their determination to do that, we might still have been frustrated in doing this, but as it has turned out, as I said, all is well. This is a good outcome for everybody and I am very happy to accept the amendments.

Motion carried.