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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Statutes Amendment (Child Sexual Abuse) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 September.)

Ms HILDYARD (Reynell) (17:11): I rise to speak on this bill and in doing so I indicate that I am the lead speaker for the opposition on this bill. At the outset of my contribution today, as I did yesterday when discussing the Civil Liability (Institutional Child Abuse Liability) Bill, I again offer my love, my support and my thoughts to those who have suffered the utter horror of child sexual abuse and who in so many cases continue to bear the damage and the sorrow it has wreaked on their lives.

This bill rightly, albeit incredibly shamefully very belatedly, addresses recommendations from the 2017 Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. This bill's proposals include, firstly, the introduction of a new offence of failure to report that applies to a prescribed person who knows, suspects or should have suspected sexual abuse by or against a person in an institution or out-of-home care. The proposed maximum penalty is three years in prison.

Secondly, the bill's proposal includes the introduction of a new offence of failure to protect that applies to a prescribed person who, and I quote, 'knows that there is substantial risk' of abuse by or against a person in an institution or out-of-home care, with the maximum proposed penalty being 15 years in prison.

The prescribed person is defined in the bill as an employee of an institution, including a person who is a self-employed person who constitutes or who carries out work for an institution or carries out work for an institution under a contract for services or carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation or undertakes practical training with an institution as part of an educational or vocational course or carries out work as a volunteer for an institution or is of a class prescribed by the regulations or provides out-of-home care.

I note that until 1976, the Criminal Law Consolidation Act 1935 presumed that boys under 14 were incapable of having sexual intercourse. This bill makes the removal of this presumption retrospective to periods before 1976 so that offenders rightly have no ability to rely on it.

This bill would also allow the Director of Public Prosecutions to appeal interlocutory judgements that may lead to the abandonment of a prosecution. It proposes to expand existing provisions under which child victims can prerecord evidence to avoid confronting their accuser during cross-examination. It also requires the recording of all police interviews of child victims, regardless of their age at trial, and allows applications for these recordings to be used at trial. It seeks to expand the current arrangements for pre-trial special hearings that allow these for people under 14 or with disability to include all victims of child sexual abuse or domestic violence. With court approval, these could also be used for vulnerable witnesses in child sex offence matters.

With regard to juvenile offenders, the bill amends Youth Court arrangements for preliminary examinations in committal hearings so that prerecorded evidence from another court may be admitted and victims are not required to give oral evidence.

In relation to expert evidence on children, the bill allows expert evidence in relation to the development and behaviour of children generally and on those children who have been victims of child sexual abuse to be admissible. This is similar to recent changes in domestic violence legislation. With regard to evidence, the bill relaxes the admissibility test for tendency and coincidence evidence by removing the word 'substantially' from section 34P of the Evidence Act 1929. I note that the Law Society's Criminal Law Committee did have concerns about that measure.

This bill introduces a limited defence to a position of authority offences but only for positions of authority linked to the provision of religious, sporting, musical or other instruction. As such, it would not cover teachers nor those who care for people with disability. For this defence to be allowed, the victim must be at least 17 years old and the offender is either under 18 or has a reasonable belief that the victim is aged over 18.

For relevant offences, the victim must also have given consent. The bill provides that information gained during religious confession is not prevented from being given or disclosed in criminal or civil proceedings. Finally, the bill makes change to sentencing arrangements for multiple offences. It requires that the indicative sentence for each separate offence is stated when a single headline sentence is given for multiple offences.

As I spoke about yesterday, as with too many pieces of crucially important legislation that impact the lives of the most vulnerable South Australians, this government has waited too long to act. The royal commission provided its recommendations four years ago. Had the provisions in this bill been in place months or years ago, as was the case in the discussion yesterday about the civil liability bill, there is every chance that more offenders could be behind bars for longer and that those who have suffered child abuse would have had their voice heard more readily and in a much sooner way.

This bill was also introduced to the other place in late August this year. Once second reading speeches were completed in the other place, this bill was passed in less than half an hour even after debating amendments from the crossbench—half an hour—because that is what happens when the house and those who sit within it prioritise what is important to this community. Like so many other critical pieces of legislation here in this house, because of this government's inaction on the most important of issues, the days turned into weeks and then the weeks turned into months.

Here we find ourselves, more than three months later, in possibly the last scheduled sitting week before an election. Once again, I am appalled and utterly saddened that the government has demonstrated its lack of commitment to those who have experienced child sexual abuse, people whose voices should always be expeditiously heard and always amplified at the earliest opportunity.

These are critical reforms and Labor welcomes them, but it is utterly bewildering why the government would let something with universal support just sit and sit and sit on the Notice Paper for so many long months on end. Sadly, as I also mentioned yesterday, we have witnessed this sort of behaviour and delay previously with this government in relation to sentence discounts for child sex offenders. In that case, as I outlined yesterday, the Attorney-General sat on an expert report from a retired judge for 19 months—19 months, Mr Speaker.

It was only after Labor introduced a bill to remedy that terrible situation that the government introduced a bill, but then took so long to pass its own bill that we had a veritable plethora of serious offenders at the Magistrates Court trying to plead guilty before that new law took effect. The courts literally, as I also mentioned yesterday, had to schedule a special court session for 13 serious, heinous criminals who will now be released from prison earlier because this government failed to act.

Sadly, we have seen this kind of behaviour previously with so many issues, where the government promised to act or had a deep moral obligation to act but completely failed to do so in a timely manner. As I also spoke about in relation to the bill in regard to institutional child sexual abuse, this has happened on everything from some of their own election commitments on things like petrol pricing and social worker registration right through to dealing with child sex offenders. A number of domestic violence bills have also simply sat on the Notice Paper for periods of a year, in some cases periods of almost two years.

The Wicked Campers legislation that I introduced sat on the Notice Paper for two years, despite our community crying out for this parliament to take a simple step forward to ensure those vans, with horrendous slogans that promoted disrespect and violence towards women, would be off our roads. After two years and many, many media stories, multiple adjournments by the government, refusal to act, passing of responsibility to the federal government despite it clearly being something that needed to happen here in this place, despite other states and territories and particular councils, particular music festivals, acting on this issue, finally, after two years, the government moved a bill that was almost identical to the one we had moved.

There is no good reason to play those sorts of silly games when you are talking about issues that deeply impact our community. I would say that with this issue we contemplate today, as with the one we contemplated yesterday and the further bill I hope we get to today or tomorrow, there is absolutely no good reason whatsoever to delay those bills. In fact, I would say they are amongst those that are most important for us to act on expeditiously and decisively. I cannot think of more important issues to progress.

Yesterday, I expressed my anger about that. Today, I just feel bewildered because I know there are good people opposite who care deeply about the wellbeing of South Australians—and particularly about the wellbeing of those who, as I have said, have gone through the horror of experiencing child sex abuse.

I do not understand what happens over there that means these bills do not get progressed, that means they do not get prioritised. As I said, I have moved from being really angry about it yesterday to still being angry on behalf of those community members who have been waiting and waiting, but I am also just utterly perplexed about what on earth they are focused on rather than being focused on these most important issues.

I would say, again, that as well as delaying these important bills in our parliament we have also seen multiple examples of this government cutting particular services and supports that people who have experienced child sexual abuse rely on not only to ensure that they are receiving the advice and support they need but also that they interact with the incredible workers in those services, which means that they do not feel alone when they have to contemplate next steps about the terrible abuse they have experienced.

In saying that, I think again of the millions of dollars that were cut from the Legal Services Commission in their very first budget on coming into government. I think about that when I consider the $780,000 that was cruelly cut from the Domestic Violence Court Assistance program in their second budget. We have heard the Attorney say words to the effect that there was a reallocation of funds and that there are particular funds around that Domestic Violence Court Assistance program that are now located, I think, in the Legal Services Commission.

However, the Domestic Violence Court Assistance Service is a specialised service that provides support to women from women, and alongside providing legal advice and support it provides a great deal of connection to other services and supports that women who are experiencing domestic violence may need. To simply say 'Oh, the money is just over here now' is just nonsense. That was a terrible cut that has impacted South Australian women who we speak about so often in this place as needing access to service and needing access to support when they are facing the most difficult, fearful times in their life.

We saw this disregard for South Australians who need support in the government's third budget when they significantly put up the Victims of Crime Levy by around 50 per cent without actually then boosting support for victims. We saw this, again, when they gutted the Victim Support Service and left so many regional towns filled with people needing support without any in-person counselling whatsoever. It is shameful.

Again, Labor offers its full and unqualified support for this bill and the content of the bill. We do have just a few very small questions in relation to the provisions in the bill when we get to that stage. However, our key question for the government, and I will keep saying it, is: why on earth are we dealing with this today and not months or years ago? There are people who have been affected by this delay, people who needed our support in our community.

The parliament does not need to hear the answer to that question about why these delays. The government owes that explanation to victims and their families. In thinking about that explanation that is owed, I shudder to think what would have happened to these bills had the parliament actually been shut down as those opposite tried to do in our last sitting week.

It would have meant that these bills, despite all that time that was available to progress them, would have just simply languished. I cannot imagine the way that would have felt for those people who needed access to the provisions of this bill to ensure that they had the advice, the right system and the support they needed as they dealt with these really, really serious issues.

If the government had got its way with stopping the week before last, all three child sex abuse bills that are on the Notice Paper, including this one, would have simply lapsed. If the government had got its way, those who have experienced child sexual abuse would have had less access to justice and compensation. If the government had got its way, then serious child sex offenders would be spending less time in prison.

It was only Labor and others on this side of the house who demanded that we stay here and do what we should always do, and that is put South Australians first and make sure that we enact legislation that ensures they have the support that they absolutely need and particularly at their most difficult, difficult moments.

The DEPUTY SPEAKER: Member for Reynell, forgive me if I missed this, but I assume you were the lead speaker?

Ms HILDYARD: I said that right at the beginning, thank you. I think you were changing over.

The DEPUTY SPEAKER: I was not in the chair at the time, so thank you for that.

Ms LUETHEN (King) (17:30): I rise to support the Statutes Amendment (Child Sexual Abuse) Bill 2021, another example of the important work led by the Attorney-General, the member for Bragg. I am so pleased to be a member of the Marshall Liberal government implementing the recommended changes to create a safer South Australia and provide justice for children and survivors.

The Royal Commission into Institutional Responses to Child Sexual Abuse released its Criminal Justice Report in August 2017. This bill delivers action, not talk. It delivers real changes to legislation to deliver on incredibly important recommendations. The report makes 85 recommendations aimed at addressing or alleviating the impact of past and future child sexual abuse and related matters in institutional contexts. A number of the recommendations of the report require legislative reform to be implemented and are addressed in the Statutes Amendment (Child Sexual Abuse) Bill 2020. The principal reforms are:

Defence to position of authority offences: the Criminal Law Consolidation Act 1935 contains several specific sex-related offences where the defendant is in a position of authority in relation to the child. These offences were created in recognition of the highest standard expected of persons who are in a position of authority and the extra vulnerability of a child in that situation. The category of persons who are in a position of authority includes a person who provides religious, sporting, musical or other instructions, which could include young adults who are similar in age to the alleged victim.

Failure to report offence: clause 7 of the bill implements recommendation 33 to create the offence of failure to report child sexual abuse by employees of institutions that operate facilities or provide services to children who are in their care or under their supervision or control, including medical and religious institutions. Employees of such institutions are in positions of trust with children and have a duty of care to prevent their sexual abuse.

Failure to protect offence: clause 7 of the bill implements recommendation 36 to create an offence of failing to protect a child from sexual abuse in institutions that operate facilities and provide services to children who are in the care or under the supervision and control, including medical and religious institutions. The offence emphasises the obligation of responsible people to prevent child sexual abuse, not just to report it once it has occurred.

Presumption of males under the age of 14: in 1976, the Criminal Law Consolidation Act 1935 was amended to abolish the presumption that a boy under the age of 14 is incapable of having sexual intercourse. Clause 8 of the bill implements recommendation 83 to make this presumption retrospective so that perpetrators of historical sexual offences cannot be protected from being charged and convicted due to the presumption.

Prerecorded evidence: recommendations 52, 53, 54, 56 and 60 propose prerecording of evidence by child sexual abuse victims in order to alleviate the need for these victims to attend court where they are again confronted by their abuser and often experience significant distress during cross-examination. Provisions of the Evidence Act 1929 and other related legislation already allow for prerecording of a victim's evidence at various stages before and during trial. The proposed reform seeks to expand those provisions.

Investigative interviews: clause 20 of the bill implements recommendation 52(a) by amending the Summary Offences Act 1953 to require recording of investigative interviews with police of all three child sexual offence victims, no matter what their age is at trial. Application can be made under the Evidence Act 1929 for these recorded interviews to be admitted at trial, instead of the witness having to give evidence.

Pre-trial special hearings allow witnesses to give evidence before trial without the defendant present. Such hearings are currently only available under section 12AB of the Evidence Act 1929 for children under the age of 14 or where the witness suffers from a disability that affects the person's capacity to give a coherent account of experiences or respond rationally to questions. In line with recommendations 52 and 53, clause 11 of the bill amends the Evidence Act 1929 to expand categories of witnesses who may have pre-trial special hearings to include the following:

all victims of child sexual offences, no matter what their age at the time of trial; and

any other witness who is a child or is vulnerable who is to give evidence in a child offence matter.

Application would be made for the court to decide whether they should come within these provisions. It has also proposed that these pre-trial special hearings be available for domestic violence victims.

Audiovisual hearings: clause 13 of the bill implements recommendation 56 to amend the Evidence Act 1929 to require audiovisual recordings of the evidence of all victims of child sexual offences. Juvenile offenders: clause 21 of the bill implements recommendation 84 to:

amend the Young Offenders Act 1993 to provide that, for the purposes of a preliminary examination at committal proceedings in the Youth Court, prerecorded evidence of a victim of a child sexual offence given in another court or during the investigative interview can be admitted; and

provide that a child sexual offence victim cannot be required to give oral evidence at a preliminary examination during committal proceedings in the Youth Court.

Expert evidence on children: clause 14 of the bill amends the Evidence Act 1929 to implement recommendation 69 to allow expert evidence in relation to the development and behaviour of children generally and those children who have been victims of child sexual abuse to be admissible in proceedings relating to sexual abuse of a child. Such evidence would be useful to the judge and jury to better understand evidence given by children.

Propensity or similarity of account evidence: recommendations 44, 45, 49, 50 and 51 propose reform to the test for admissibility of tendency and coincidence evidence to increase the admissibility of this evidence in child sexual abuse matters.

Religious confessions: clause 16 of the bill implements recommendation 36 and the intent of the principles endorsed by the Council of Attorneys-General to provide that the fact that information was gained during or in connection with a religious confession does not prevent that evidence being given or disclosed in civil or criminal proceedings.

Sentencing for multiple offences: clause 17 of the bill amends the Sentencing Act 2017 to implement recommendation 75 to require the court, when setting a sentence in relation to offences involving multiple discrete episodes of offending or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed. This reform ensures that recognition is given to separate episodes of offending in sentencing.

Sentencing standard for offences involving child sexual abuse: clause 19 of the bill implements recommendation 76 to amend the Sentencing Act 2017 to make it clear that, in sentencing for child sexual offences, sentences must be set in accordance with the sentencing standards at the time of the sentencing, instead of at the time of offending.

As I have said before in this place, we must do all we can to work together to stop child sexual abuse. The statistics say it all: one in five children will be sexually abused in Australia. This is utterly unacceptable. It is appalling that I have needed to sit here and listen to Labor choose to play politics on this topic, which our community expects us to work together on. This is a no-brainer; there is no reason to play games with safety. I am keen to get on with this and other changes as soon as we can so that more South Australian children can grow up safely.

I commend the member for Bragg for her relentless hard work in leading the implementation of these legislative changes to hold perpetrators of all types of abuse to account, to increase the harshness of consequences for those who sexually abuse children and to help victims to be better protected while giving evidence and to seek justice. I commend this bill to the house and thank the Acting Attorney-General for taking carriage of this bill.

The Hon. J.B. TEAGUE (Heysen—Minister for Planning and Local Government) (17:40): In the interests of expeditiously passing the bill, I wish to speak very briefly. In doing so, I thank the member for Reynell for her contribution, and I thank the member for King for her contribution to this debate and for her sustained interest in this important area as it is expressed in her remarks just now.

As is clear, the passage of this bill indeed marks another important step towards acknowledging the issues that were raised in the royal commission, but it also importantly will now put in place reforms that will further address and alleviate child sexual abuse and related matters in institutional contexts. With those words, I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms HILDYARD: I have just two questions in this section. First of all, given the royal commission released its finding four years ago, why is this bill only being introduced now?

The Hon. J.B. TEAGUE: I just indicate to the member for Reynell that one factor of significance was the work of the working group, particularly with respect to uniform Evidence Act states, which considered significant aspects of the outcome of the royal commission. Its work continued for some time and has been the subject of consideration by the Law Society, among others, earlier this year. So I just emphasise the extent to which there has been national consideration of reforms required following the royal commission and I just highlight the work of the working group in particular—but here we are.

Ms HILDYARD: A supplementary to that answer, thank you, minister: when did the working group complete its work?

The Hon. J.B. TEAGUE: I have referred to that work insofar as it related to the uniform Evidence Act states. I have an indication of a draft having been produced late in 2019 that may be of relevance, and I would refer further to deliberations that ensued, including the consideration of the Law Society, to which I have referred already, that was before the Attorney earlier this year. I am being advised that a report of the working group was reported back in September 2019 also.

Ms HILDYARD: Minister, why exactly was there a three-month delay in bringing this bill on in this place, when it clearly had the support of the opposition, and what would have happened to this bill should parliament have shut down last sitting week?

The Hon. J.B. TEAGUE: Member for Reynell, those questions are on the record. I perhaps regard them as largely rhetorical and the answers I think speak for themselves: here we are progressing the bill.

Clause passed.

Clauses 2 to 17 passed.

Clause 18.

Ms HILDYARD: Minister, this is in relation to the insertion of part 7, division 11—Religious confession. Given the proposal will mean that information from a confession is not prevented from being admitted at trial, how exactly is that prevented right now?

The Hon. J.B. TEAGUE: There might a multifaceted response, in that it is perhaps not possible to generalise in this sense. What I can say that will apply across the board is that the amendment just makes clear that no matter what the denomination there will be no confessional privilege applying. It really makes clear that that is the case and, just to be clear, that is with respect to any criminal or civil proceedings relating to the child sexual abuse, and sometimes we will see one or both of those.

I can add further, and I think this is information that has been previously provided in response to inquiries, that it is unclear in Australia whether or not there is such a privilege in common law. The royal commission reported that a number of jurisdictions internationally have recognised a common law priest-penitent privilege for religious confessions and that the position in Australia is not clear. There is no case law in Australia deciding whether or not there is a common law confessional privilege, so there are no cases in which this privilege has been relied on. The clause is a belt and braces provision, making it absolutely clear in that context.

Clause passed.

Clause 19.

Ms HILDYARD: For avoidance of any confusion, does this deal with the multiple offences and/or offences that may include multiple instances of offending, e.g. in cases where there is persistent sexual exploitation of a child?

The Hon. J.B. TEAGUE: Perhaps if I can answer it this way: the provision makes it clear that wherever a single sentence is to be imposed, then it is really a provision requiring that there be an indication as to what would have been imposed in respect of each such offence had that single sentence provision not been applied. It is a spelling out of the seriousness, I suppose, of the individual offences, notwithstanding the possibility for the imposition of a single sentence. I am not sure if that is completely responding to the member for Reynell's question.

I am advised that it applies to any offence, and so in relation to the matter of persistent sexual exploitation to which the member for Reynell refers then, yes, it would apply, I am advised, in that way. It is really a question of where there are different victims and where a single sentence is proposed and in relation to potentially multiple offences. I do not know that I have added a great deal to what is on the face of the provision.

Ms HILDYARD: I was just going to say that if there is any more clarity, can you please let me know and I would appreciate your answer.

Clause passed.

Clauses 20 to 23 passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. J.B. TEAGUE (Heysen—Minister for Planning and Local Government) (17:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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