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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

Criminal Law Consolidation (Sexual Offences - Cognitive Impairment) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:02): I rise to speak on the Criminal Law Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill 2014. This is a bill introduced by the Attorney on 29 October this year, and I think it is fair to say that it has had quite a long gestation period in its development. I indicate that the opposition will be supporting the bill.

On our side of the house, we welcome this issue being resolved to the extent of providing some protection for those who are adults as far as the law treats them but who have some cognitive impairment which means that they are vulnerable to those who may take advantage of them. That may be someone of whom they are in the care of or someone in the broader community.

It is a difficult area because it is a question of balancing the rights and entitlements of someone who is an adult as far as the law is concerned—that is, over the age of 18 years—unless they are identified as having a significant mental disability or brain injury. They seek to have the same rights and entitlements as any other member of the community.

However, overlapping that is a circumstance where they may be placed in a position of exposure to risk either because they have a disability which makes it difficult for them to be able to escape the predatory and inappropriate conduct of another party or they are in some way beholden to that party. So, there is a dynamic of influence, there is a dynamic of imbalance in the power of the person who has a cognitive impairment.

It gets tricky when we move into the area of making provision for adults in these circumstances. I will say that various attempts have been made over the years to ensure that children are protected in these circumstances against someone who may be responsible for them at a sports club or a school or an activity where there is a very significant, known power imbalance between a child and a person who may have the supervision and responsibility for a child.

We have already ensured that that is incorporated in our criminal legislation to ensure that the full weight of the law is brought down against those who take advantage of children in those circumstances, because they are presumed, by the very nature of their being children, particularly if they are very young children, to be vulnerable in those circumstances.

Anyone can go to the Criminal Law Consolidation Act and see that we treat harshly someone who abuses that position—for example, a teacher towards a student, and indeed persons who, as I say, have responsibility for children. It is fair to say that, given the focus in that area since the 1980s and the exposure of extraordinary abuse towards children, we now have in our prisons a fairly significant range of those who have been convicted of offences in that field.

We now move to the adult arena. It is tricky and it is difficult, but this bill proposes to amend the Criminal Law Consolidation Act to introduce two new offences: the first is obtaining sexual intercourse or indecent contact through undue influence between a service provider and a person with a disability (that is, having some cognitive impairment), and the second is the performance of an indecent act without the consent of a person with such impairment.

We are going down the line of having a criminal offence for this type of behaviour, and the penalties that are to be imposed for people who are guilty of these offences, unsurprisingly, depend on the nature of the sexual activity, and that is entirely appropriate. I suppose it will be the actioning of these offences, the putting into practice of what we do here today, on the basis that it is supported in the other place, that will determine how effective that will be and whether there needs to be reform in that area, but from this side of the house, we are certainly prepared to give it a go.

For reasons that are probably obvious, it excludes spouses and domestic partners. There is the general presumption that within that relationship there will be a level of understanding of the sexual activity between them, so we understand that. My reading of it is, however, that that does not exclude the opportunity for a victim within a marriage to be able to claim that they have been raped, for example. That is still within the criminal law; they are entitled to do that.

It seems that what they are not entitled to do, the way I read it, is to say that they are relying on their husband or partner—I will use that as the example—being convicted by virtue of having sexual intercourse in respect of an undue influence relationship. In other words, someone in that situation could still be charged with rape of someone who has a cognitive impairment to whom they are married. They will still have to prove all the elements of that offence, but they would not be charged with these offences, and I think that is reasonable in the circumstances.

The other matter I would just like to say a little about is the general consultation on this bill. Whilst it has a long period of development, the government had established and published a justice disability plan. We are looking at a number of issues that need to be dealt with in this area. That included the need to have protection for adults in these circumstances.

The consultation was on the basis of having a model similar to the one in New South Wales where a list is provided of people who can be charged in these circumstances, namely, the usual providers of care: doctors and patients, psychologists and patients, carers and patients, and one-off providers in regular transport for an adult with a disability. Rather than going into the category of identifying a particular profession or work relationship, it was decided to go on the more generous undue influence model, if I can describe it as that. On the face of it, it will have a broader application and is not as prescriptive as saying that you have to be able to prove a certain relationship within the category under the New South Wales prescriptive model.

With the assistance of David Plater and others who have done some extensive investigation into a model which has applied in Canada and which has been the subject of a number of criminal cases, I am assured that, after a couple of decades, it is apparently working quite well. On the face of it, I accept that. There were a number of cases provided in relation to the definition of 'undue influence' and it seems that the interpretation of that has been kept quite flexible as well.

I am not a great advocate of something that is not very clearly defined, and I think there are some general principles in respect of criminal law that require us to be pretty clear in our legislation about what is to be captured by particular conduct. However, as I indicated, we are prepared to give this model a go on the basis that it has had some positive application over the last 30 years in Canada.

Regarding the other aspect of consultation, my understanding is that, whilst there has been considerable consultation on the plan—and obviously it has been developed by a number of stakeholders—this has not occurred in relation to the bill. The problem with this approach is not that the government would be criticised for going out and consulting on the development of the bill but that, when it came to the actual bill being tabled, which had not been consulted on, it had changed the basis of the model upon which it would operate from the earlier discussions. Notwithstanding that, we were advised that people in the industry such as Robbi Williams, the Chief Executive Officer of the Julia Farr Association, and someone who has a wealth of knowledge in dealing with people with an impairment and being an advocate for their rights and so on, is supportive of this model.

The Attorney has very kindly provided me with a copy of a letter sent to me on the weekend. I have not yet received that but I am sure I will and that it will filter through the process. The letter appears to respond to a number of questions that I had raised. I will have a quick read of this during the course of other discussions, given that this is a bill we are going to support. I am pleased to see, at first blush in any event, that there is a significant group that has been consulted and I assume, when I get to the fine print, that they have supported it.

The other thing I would say about the consultation is that it is my understanding that the Hon. Kelly Vincent, who is amongst us in the legislation role here in parliament and is a member of the other place, has been very active in contributing to the development of this bill and, indeed, the Disability Justice Plan generally. I am (as other members would be) appreciative of Kelly's insight and contribution in this arena. She is a consumer and a living example of someone who understands people with a disability. I do not think for one minute that Kelly has any cognitive impairment. I think one would be hard pressed to suggest that that is the case because she is an extremely intelligent member and we are very pleased to have her in this parliament.

Kelly would be well aware of the issues, having been a strong advocate for those with disabilities—for example, those with a brain injury arising out of a birth or accident trauma—and would fully understand their vulnerability. Equally, I value her advice and contribution after having looked at this bill because I am absolutely certain that she would be adamant that any government introducing legislation of this kind should maintain respect for the individuality and autonomy of people with a disability, and that they should be treated as people who can have intimacy or a sexual relationship without being judged adversely or presumed to be unable to have a fulfilling and intimate relationship with a partner. Kelly is exactly the sort of person who we need to be mindful of in what she is seeking to achieve here to ensure that there is that balance, and I thank her immensely for her contribution in that regard.

While others are making a valuable contribution to this debate, I will read through the material provided by the Attorney. We can perhaps go into committee briefly if I have any questions on these matters but I thank the Attorney for providing this material.

Mr TARZIA (Hartley) (11:18): I rise today to speak in favour of the Criminal Law Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill 2014. I commend the Attorney for bringing this bill to the house. It is a difficult and complex issue, and an issue that has been widely discussed for some time.

Everyone should be treated equally before the law. It goes without saying that everyone should be treated equally, but there is overwhelming evidence that people of the class we are talking about, who have a cognitive impairment, are particularly vulnerable to sexual exploitation and other forms of abuse, especially when those who prey on them are in a position of trust, power or authority.

We have seen many examples over many years in the civil arena: parent and child, guardian and ward; trustee and cestui que trust; solicitor and client, physician and patient, and also in cases of religious influence as well. This area of the law has been around for a long time and it is ample and apt that the Attorney seeks to update this part of the law to affect people in this case.

The Criminal Law Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill, I understand, is intended to operate with other forthcoming reforms by the government. We seek guidance and direction as to what those reforms will be into not only operational issues but also, I think more importantly, in terms of cultural and training issues as part of their disability justice plan, because it is important that we improve the position of people with disabilities not only in the justice system but also in other areas.

The aim of the bill, of course, is to better protect the vulnerable in society but also to respect the sexual autonomy of persons with such cognitive impairment. This balance was discussed in several papers but, as the Attorney alluded to, and the member for Bragg alluded to, the need to find this balance was highlighted in the Model Criminal Code Officers Committee in 2001. This was a committee of experts from a wide array of areas, so you had judges, prosecutors, defence lawyers, academics and lawyers from various attorneys-general departments.

I also note that the committee received many submissions from several parties and especially from the disability sector. So they certainly went out and the consultation was far and wide reaching, and this has not happened overnight; it has happened with much discussion and community consultation. I note that the bill amends the act by introducing two new offences: one of obtaining intercourse or indecent contact through undue influence between a service provider and a person with a disability (or a cognitive impairment in this case) and, two, the performance of an indecent act without the consent of the person with such impairment.

I understand that New South Wales follows a prescriptive model which identifies various professions such as carers and doctors and, after consulting with many disability advocates, including the Hon. Kelly Vincent from the other place, I see that the government has decided to adopt the undue influence model. In terms of consultation, as the member for Bragg pointed out, this has gone out to consultation, and it is fitting to do so. It is extremely important with this sort of complex issue that you have to get it right, that is for sure.

It is fitting that it has gone to wide consultation, and I appreciate the feedback from the Hon. Kelly Vincent from the other place on what is an extremely complex and difficult issue. I also note that Robbi Williams from the Julia Farr Association supports the bill as well. I will be happy to support any bill that goes to ensure that everyone should be treated equally before the law. This is clearly an area where people with disability are extremely vulnerable and, I think that at the end of the day, the bill goes to that mischief and aims to prevent that from happening. I commend the bill to the house and I will support it.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (11:24): I thank the members who have spoken on this bill and I say to members opposite that I very much appreciate their support for this bill. Getting to this point has been a very detailed process of consultation. In particular, I congratulate Ruth Ambler from my department, who has done an absolutely terrific job with the Disability Justice Plan and with this piece of work, and her team, obviously, because she does not work alone. I think David Plater has been mentioned also by the member for Bragg.

So that it is very clear, the bill we have now is the product of a consultation that was quite involved. That consultation started off basically looking at the New South Wales model and the bill we have now is a bill that takes into account the feedback we got in that consultation. So we basically have the starting proposition of New South Wales and we then have this extensive consultation (and Mr Plater and others were involved in that). As a result of that consultation, it was felt that some modification was appropriate, and that was coming from the sector and not from me.

So, we made those modifications and, just to make it very clear on the public record (as I think the member for Bragg asked this question), did we then go back out and consult on the bill that had been produced as a result of the consultation? The answer to that is no. The reason is that at some point the consultation must come to an end. So, we put out a draft proposition, which was modified at the request of the sector, and the bill we put in front of the parliament reflects the modifications the sector has asked for.

My office has been in touch with the Hon. Kelly Vincent, and my indication from her presently is that she is supportive of this, but obviously I think she reserves her right to reflect on it between now and its being disposed of in the other place. I think I said in my second reading speech that this is a very difficult area. It is impossible to say that something is objectively the correct position or the incorrect position here. All that we can say, with some degree of confidence, is that the idea of vulnerable people being exploited by other people is unsatisfactory and should be discouraged.

But exactly where you draw those lines, who you describe as vulnerable, how vulnerable and what degree of exploitation or whatever is to be deemed to be a criminal degree of exploitation are matters of fact and degree, and that is partially why there has been this area of grey maintained in the draft, so that the courts can apply practical common sense to the circumstances of particular matters. My hope is that the general good sense of the courts will prevail and we will all be very pleased that this is the way we have chosen to go, rather than create some very prescriptive model that will perhaps produce anomalous outcomes in particular cases.

Thank you very much to all members who have spoken, and thank you very much to members of the opposition for expressing their support for this. It is one of those things where the government and the opposition can both say with some confidence that we are attempting to provide some support and genuine engagement with the disability sector and trying to accommodate the particular concerns and requirements they have. This is one of the moments in the parliament that do not get reported a great deal in the media, namely, when the government and the opposition work together constructively on positive, progressive measures.

If there was somebody from the media here now, I would be wanting to celebrate the moment and say that that is the sort of thing they could write as part of the positive story about South Australia, because we read so much negative stuff, so many negative things about 'man runs over dog, dog bites man, dog loses newspaper'—terrible, sad things, and it is always on the front page of paper, all that sad stuff. Then there are happy moments—lakes and boats and noodle salad—times when people are happy and times when the parliament is being productive like this and doing good things. Thank you all very much, and let us hope that it gets an equally speedy passage through the other place.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (11:29): I move:

That this bill now be read a third time.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:30): I want to briefly make a contribution at this point to say that I have now perused the letter provided by the Attorney-General with respect to consultation. It answers the matters that I requested, and provides the stakeholders, as indicated. We are yet to see, as I say, whether the change of model actually works, but I will have a look at the New South Wales situation in the meantime and see whether there are any aspects that we may need to modify. Like a lot of these things, we sometimes need, in new laws, to be able to see how it progresses and whether there are any deficiencies, because we certainly need to get this right. It is a difficult balance, so we will be monitoring it, as I am sure the government will.

Bill read a third time and passed.

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