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

Second Reading

Adjourned debate on second reading.

(Continued from 18 November 2014.)

The Hon. A.L. McLACHLAN (11:36): I rise to speak to the Criminal Law Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill 2014. I indicate that the position of the opposition is that we will be supporting the bill. The bill was introduced by the Attorney-General on 29 October, after having a lengthy period of discussion and development. There is a considerable weight of evidence which demonstrates that people with a cognitive impairment are particularly vulnerable to sexual exploitation and, indeed, other abuse, especially from those who are in a position of trust, power or authority. Indeed, it is always a challenge for us to protect those who are the most vulnerable in our community.

To this end, we already have offences under the Criminal Law Consolidation Act 1935 for those people in our community who are in a position of trust and engage in the abuse of children; for example, a teacher who abuses one of their own students. The bill expands on these principles by making provision for adults who are vulnerable as a result of their disability. The bill achieves this by introducing two new offences to the Criminal Law Consolidation Act. Firstly, it creates an offence of obtaining either sexual intercourse or indecent contact through undue influence between a service provider and a person with a cognitive impairment. Secondly, it also creates an offence of performing an indecent act (by a service provider) without the consent of a person with a cognitive impairment.

We welcome this bill as a way of protecting those people who are particularly vulnerable to sexual exploitation and, indeed, other forms of abuse, whilst also attempting to balance their desire to have sexual autonomy. I note that the penalties to be imposed will largely depend on the nature of the sexual activity, and in this respect I am pleased that the questions of fact and degree will be left to the courts to decide, based on the circumstances of each particular case.

The bill has excluded spouses and domestic partners. However, on my reading, it does not exclude someone from being able to make a claim that they have been raped within a marriage. I understand that this bill responds to consultation undertaken as part of the government's Disability Justice Plan, which was released in June of this year. The aim of the plan is to make the criminal justice system more accessible and responsive to the needs of people with a disability. I commend this initiative.

The bill also attempts to achieve the important balance between protecting the vulnerable while also respecting their sexual autonomy. This balancing issue was first raised by the Model Criminal Code Officers Committee in 2001 and many submissions were received, especially from the disability sector. The committee suggested that the bill be drafted using the undue influence model rather than the model used in New South Wales, which lists a number of prescribed service providers.

The government has adopted this recommendation and I am pleased to see that people working in the industry, such as the chief executive officer of the Julia Farr Association, are supportive of the undue influence model we now have before us today. I note that the Hon. Kelly Vincent has today filed some amendments, which appear, on their face, to be of a technical nature. We look forward to exploring the effect of those amendments in the committee stage. I commend the bill to the council and indicate the opposition will support the second reading.

The Hon. K.J. MAHER (11:39): I rise to support the bill. I note and thank the Hon. Andrew McLachlan for his valorous words on this bill. Access to justice is a key focus of this government. We firmly believe that all South Australians should be equal before our justice system. The Disability Justice Plan seeks to increase access to justice for people in this community living with a disability. It acknowledges the individual needs of members of our community and the differing needs of certain people based on individual circumstances.

The vision of the Disability Justice Plan is to uphold, protect and promote the rights of people with a disability, support vulnerable victims and witnesses in giving evidence and support people with a disability who are accused or convicted of a crime. The Attorney-General's Department should be commended on the extensive consultation that took place in relation to this initiative. The chance to hear from people within the sector has led to the Disability Justice Plan being a foundation from which this government can effect significant change in the way people with a disability in our community interact with the justice system.

This bill represents the first legislative reform connected with the Disability Justice Plan that was released in the middle of this year. It is well known that people with a cognitive impairment may be vulnerable to sexual exploitation by certain people charged with their care. This bill deals with this sensitive topic and, because the removal of the issue of consent imposes an arbitrary limit on a person's sexual right, it needs to be dealt with with care.

The Attorney has made it clear in the promotion of this legislation and in the other place that there is no silver bullet in dealing with this issue. We are dealing with adult people who are entitled to enjoy their sexual rights. This bill seeks to strike the right balance and respects the sexual autonomy of people with cognitive impairment. People who abuse a position of power that they may hold to procure sexual contact with a person with a cognitive impairment will now be appropriately dealt with as a result of this important legislation.

As the Hon. Andrew McLachlan mentioned, the government has favoured this undue influence model over other more prescriptive models because the nature of the relationship between a complainant and an offender will be determined as a matter of fact—that is, did the person hold a position of trust, power or authority over the victim? This model is preferred because it will serve to capture all those who abuse a position of trust, not just those whose position of care is defined by legislation.

I welcome this legislative initiative to protect vulnerable people within our community from sexual abuse by those charged with caring for them, and look forward to this place receiving further legislation in the not too distant future connected with the Disability Justice Plan.

The Hon. K.L. VINCENT (11:42): I will just briefly indicate that Dignity for Disability strongly supports this bill. We have been very pleased to work constructively with the government on this issue and other issues pertaining to the Disability Justice Plan for some time now, but I also indicate that we understand that this is something of a vexed issue.

As other members have illustrated, we have a very difficult tightrope to walk in terms of protecting those who are potentially vulnerable due to their disability and subsequent reliance on services and those who are, as has been said, adults who should reserve the right to participate in consensual, meaningful sexual relationships.

We will support the bill and I will later move a minor amendment to do with the wording as to who is covered by the bill. It is a very minor amendment that I vow to circulate to members. I urge their consideration and, with that, commend the bill to the chamber.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (11:43): I wish to thank members for their second reading contributions and support for this bill. I particularly wish to highlight the valuable contribution made to the formulation and progress of this bill by the Hon. Kelly Vincent. As the Attorney-General made clear in the other place, it is a credit to the parliament that we can all speak with one voice on such a sensitive and important area as this.

As the Hon. Kelly Vincent just stated, it is indeed a very finely-balanced path that we walk in ensuring that we get everyone's rights and responsibilities in the right balance. It is especially fitting that this bill will pass parliament this week, given that today is the International Day of People with Disability. There are strong concerns about the vulnerability of persons with a cognitive impairment to sexual exploitation and abuse, especially from those in a position of power, trust and authority. Disturbing recent revelations in Victoria highlight just how acute this problem is. The government is committed to the Disability Justice Plan and linked legislative and other changes to improve the position of persons with an intellectual disability throughout the justice system, and the Criminal Consolidation (Sexual Offences—Cognitive Impairment) Amendment Bill is part of that process.

The bill introduces two new offences to deter predators and to protect a person with cognitive impairment from sexual exploitation and abuse. The bill aims to strike that elusive balance between protection and paternalism, namely, to protect persons with a cognitive impairment from undue influence and sexual exploitation, especially where the other party occupies a position of trust, power or authority over them, but crucially to respect the sexual autonomy of persons with a cognitive impairment.

The bill draws on both the suggested approach of the Model Criminal Code Offences Committee 2001 and the approach in Canada. The Model Criminal Code Officers Committee identified the focus of any offence as the presence of undue influence. This is consistent with the Canadian model. The bill uses the concept of undue influence from a wide Canadian definition of rape and applies it not to alter the scope or definition of rape in South Australia but to the specific situation of sexual conduct between providers of a service and persons with a cognitive impairment.

The bill defines 'undue influence' as including the exercise and abuse of a position of trust, power or authority. Where a person who is a service provider is found to be in a position of trust, power or authority, there is a presumption in the bill that this person exercised undue influence to obtain the relevant consent to sexual conduct from a person with a cognitive impairment. This presumption can be displaced on the balance of probability, with consent as a defence, but only where 'the consent of the person was not obtained by reason of undue influence by the defendant'.

The presumption is consistent with other statutory presumptions, such as under the Controlled Substances Act 1984 where, as here, the means to rebut the presumption particularly lie within the knowledge of the accused. Service providers who occupy a position of trust, power or authority in relation to a person with a cognitive impairment should be held to higher levels of accountability than other service providers. In a relationship of trust, power or authority, vulnerability is inherent to the relationship itself, and any purported consent needs to be carefully scrutinised. The bill fairly balances the conflicting interests in this sensitive area and is an important and welcome step forward.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. K.L. VINCENT: I move:

Amendment No 1 [Vincent–1]—

Page 3, line 29 [clause 4, inserted section 51(5), definition of cognitive impairment, (e)]—

Delete paragraph (e) and substitute:

(e) mental impairment;

As I said to members earlier, this amendment is very simple in its intent. It is really, on the surface, a linguistic change, I guess you could say, in changing the context of clause 4 talking about 'severe mental illness' (I think it was) in the original copy of the bill, to 'mental impairment', or order to signify that there are certain vulnerabilities which exist outside of mental illness but also to talk about conditions, I guess you could say, which make people potentially vulnerable even when an illness is not present.

I believe that this is quite simple and noncontroversial in its intent. I thank the government for its indication of support for this amendment to remove the stigmatising term of 'severe mental illness' and use a broader term of 'mental impairment', both to indicate that there are potential vulnerabilities which exist outside of mental illness and to remove the stigma of saying that those living with mental illness or with other mental health conditions are something of a special case. It is a simple amendment; it is important in terms of removing a stigma, and I urge honourable members to support it.

The Hon. S.G. WADE: I wonder if the government might, through its advisers, clarify the extent of the term. I certainly agree with the point the Hon. Kelly Vincent is making about the need to move away from 'mental illness' towards 'mental impairment'. One can easily think of people such as those with an acquired brain injury or people with intellectual disability who might not be regarded as having a mental illness but certainly have a mental impairment. I wonder if there is the potential for, shall we say, episodic mental impairment to be captured. Let's say you are over-intoxicated, whether through alcohol or drugs, and you are impaired, could you be seen to be mentally impaired?

The Hon. G.E. GAGO: I am advised that that would be most unlikely because it would be considered in regard to the context of the legislation, so it would be considered in the way that the Hon. Kelly Vincent has proposed rather than the example that you gave.

The Hon. S.G. WADE: I certainly accept the answer that the definition will be considered in the context of the statute. With all due respect I do not think the courts will look at what the Hon. Kelly Vincent said; the Acts Interpretation Act does not permit that. Be that as it may, with all due respect, it applies to all of us and, in fact, it even applies to ministerial second reading speeches.

This might be a touch cheeky but considering the Hon. Kelly Vincent has raised the issue of mental impairment I wonder if the government might be able to give us an update on the progress of the government's review of the mental impairment defence, section 269, which I think is Kevin Duggan and the Sentencing Advisory Council. Feel free to take that on notice; it is just that now we are talking about mental impairment it would be interesting to get an update on that.

The Hon. G.E. GAGO: It is a different issue completely, but I am happy to take it on notice and bring it back.

The CHAIR: Are there any other contributions?

The Hon. G.E. GAGO: The government rises to support this amendment. The Hon. Kelly Vincent proposes to amend clause 4 to clarify the definition of cognitive impairment and to substitute the reference to 'severe mental illness' with 'mental impairment'. This amendment makes sense and it supports the rationale and operation of the bill to protect persons with a cognitive impairment from undue influence and sexual exploitation whilst preserving their sexual autonomy and not casting the scope of the bill too wide. It is for those reasons that we support this amendment.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (11:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.