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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-09 Daily Xml
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CRIMINAL LAW CONSOLIDATION (RAPE AND SEXUAL OFFENCES) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendments be agreed to.

Mrs REDMOND: I am pleased to see that these amendments have been moved. They in fact came about because the Attorney-General, to his credit, actually listened to the question asked by the member for Unley in this place when the bill was being debated on the first occasion. The member for Unley raised some pertinent questions about the change to various offences (unlawful sexual intercourse, indecent assault and persistent sexual exploitation of a child) to include in the people who could be convicted of those offences when the child had reached the age of 17 years a person who is in a position of authority over the child.

The member for Unley, in fact, raised some questions about what constitutes an employer. Is it the young girl's supervisor at the McDonald's store, and so on? That gave rise to some serious consideration by the Attorney as to just who would get caught by that definition and who would not; and amendments were then moved by the Minister for Police in the other place seeking to overcome the potential difficulty which was highlighted by the member for Unley in his contribution on the second reading.

I want to put on the record my thanks (and, no doubt, the Attorney's) to the member for Unley for raising a potential difficulty with the legislation. Hopefully, the amendments now moved and supported by the opposition in the other place and, indeed, in here will overcome that potential difficulty before it becomes one.

The Hon. M.J. ATKINSON: The offences of unlawful sexual intercourse, indecent assault and persistent sexual exploitation of a child make engaging in a sexual act with a child under the age of 17 years an offence regardless of whether the child consented. They also say that engaging in such an act with a child aged 17 with that child's consent will not be an offence unless the accused is the child's guardian, school master, school mistress or teacher. Clauses 6, 7 and 8 of the bill amend these offences by substituting for 'guardian, school master, school mistress or teacher' of the child 'a person who is in a position of authority' over the child. They define a person who is in a position of authority to mean one of a list of authority figures, including:

(f) an employer of the child (whether the work undertaken by the child is paid or otherwise).

In debate on clause 8 of the bill on 12 February the member for Unley said:

I have a question about the definition of the employer. Can the Attorney give me a definition of who is considered the employer? Is it somebody who is an immediate authority such as a supervisor? For example, a 19 year-old working at a fast food outlet puts the hard word on a 17 year-old. Is that the employer or is the employer actually the owner of the franchise? I would like that clarified...

He goes on:

What about in the instance of somebody working for the Public Service, for example, a trainee under the age of 18? Who would be considered as their employer and consequently would fall into this clause in the amendment?

I answered that it was a matter for judicial interpretation and that the court would read down the expression in favour of the accused. I am concerned, though, that this might allow people to avoid liability for unlawful sexual intercourse or indecent assault on a technicality. I therefore arranged for amendments to be moved to this clause, clause 6, and to move identical amendments to clauses 7 and 8 in the other place to say that a position of authority includes not only an employer of a child but also a person who, not being the child's employer, has the power or authority to determine significant aspects of the child's terms and conditions of employment or to terminate that employment. Each clause will retain the proviso that this applies whether the child is being paid for that employment or is working in a voluntary capacity. It is another example of the South Australian parliament having a useful committee stage where the suggested amendments of Independent and opposition members are taken on board by the Rann government.

I should add, since we are moving the amendments en bloc, that the reason for amendment No. 2 is the same as for amendment No. 1. Regarding amendment No. 3, during debate on the bill I noticed a drafting error in this clause where it inserts section 57(4)(c). It was that part of the definition of 'position of authority' that is inserted for the offence of indecent assault in proposed section 57(4)(c) that is different from the equivalent part of the definition of a position of authority that is inserted in the offences of unlawful sexual intercourse (in clause 6, inserting section 49(5a)(c)) and persistent exploitation of a child (in clause 7, inserting section 50(8)(c)).

The definition of 'position of authority' for each offence are supposed to be identical. By this amendment I propose to correct that error and substitute for the incorrect text in the inserted section 57(4)(c) the words used in the inserted section 49(5a)(c) and section 50(8)(c).

As to amendment No. 4, the reasons for this amendment are the same as for amendments Nos 1 and 2. I thank opposition members for their useful contribution to this debate.

Motion carried.

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