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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-08-24 Daily Xml
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Statutes Amendment (Child Sexual Abuse) Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (16:29): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935, the Criminal Procedure Act 1921, the Evidence Act 1929, the Sentencing Act 2017, the Summary Offences Act 1953, and the Young Offenders Act 1993. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:30): I move:

That this bill be now read a second time.

The government is pleased to introduce the Statutes Amendment (Child Sexual Abuse) Bill 2021. The bill introduces a number of important reforms proposed by the Royal Commission into Institutional Responses to Child Sexual Abuse. The royal commission was established in 2013 and undertook five years of inquiry into institutional responses to instances and allegations of child sexual abuse. The royal commission delivered four sets of recommendations, one of which was contained in the Criminal Justice Report tabled in federal parliament on 14 August 2017.

Many of the report's recommendations are already in place in South Australia; however, a number still require legislative reform to be implemented. The bill amends various acts to implement the required legislative reforms recommended by the report. As well as implementing recommendations from the report the bill makes additional amendments aimed at assisting domestic abuse victims in the criminal justice system.

Turning now to the provisions of the bill. Part 2 of the bill contains amendments to the Criminal Law Consolidation Act 1935. Clauses 4, 5 and 6 of the bill amend the CLCA in line with recommendation 29 to provide for similar age or reasonable belief defence for the offences of unlawful sexual intercourse, indecent assault, where the victim is under 17 and consents, and procuring a child to commit indecent assault.

The similar age defence applies where the victim was 17 or over and the defendant was under the age of 18 at the time of the offence, or believed on reasonable grounds that the victim was of or above the age of 18. The defence is limited to defendants who are in a position of authority by virtue of providing religious, sporting, musical or other instructions to the victim. The wide definition of position of authority under the CLCA means that there may be young people who provide this kind of instruction who should have a similar age consent defence available to them.

Clause 7 of the bill creates new offences of failing to report and failing to protect a child from child sexual abuse in line with recommendations 33 and 36. New section 64A provides that it is an offence if a prescribed person knows, suspects or should have suspected that another person has previously engaged in the sexual abuse of a child and the child is under 18, or the alleged abuser is still employed by the institution or another institution, or the sexual abuse occurred in the preceding 10 years and refuses or fails to report that abuse to the police.

The offence also applies where the prescribed person is engaging or is likely to engage in sexual abuse of a child. A prescribed person is defined to be an employee of an institution. In these circumstances the employee is required to report child sexual abuse by another employee of the institution. Under the new section 64 definition, an institution is an entity, whether private or public, that operates facilities or provides services to children who are in their care, supervision or control. This includes medical and religious institutions.

A prescribed person also includes providers of out-of-home care, commonly known as foster carers, who care for the child in premises other than the child's home. The foster carer receives or may receive financial or other assistance in relation to the care provided. In these circumstances an out-of-home carer is required to report child sexual abuse by another out-of-home carer. This is in recognition of the position of trust that foster carers are placed in when they take on the care of children who are under the guardianship or custody of the chief executive. The provisions of new section 64 operate retrospectively in certain circumstances.

Under new section 64A(5) it is a reasonable excuse not to make a report where a report has already been made under section 31 of the Children and Young People (Safety) Act 2017. No criminal or civil liability lies for reporting a matter in good faith under new section 64A and the prescribed person cannot be liable for professional misconduct. The identity of the reporter is protected as if he or she made the report under the Children and Young People (Safety) Act 2017 and he or she has the same protection from victimisation.

Clause 7 of the bill inserts new section 65 to create a criminal offence of failing to protect a child from sexual abuse in line with recommendation 36. New section 65 provides it is an offence if a prescribed person knows that there is a substantial risk that another person will engage in the sexual abuse of a child who is under the age of 17, or in relation to whom the abuser is in a position of authority, and the employee has the power or responsibility to reduce or remove that risk but negligently fails to do so.

In the case of a prescribed person who is an employee of an institution, the employee is required to protect a child from sexual abuse by another employee of the institution. Where the prescribed person is a foster carer, the obligation is to protect a child from sexual abuse by another foster carer.

In line with recommendation 83, clause 8 of the bill makes retrospective section 73 of the CLCA, which abolishes the presumption that a boy under the age of 14 is incapable of having sexual intercourse. South Australia was the first jurisdiction to abolish the presumption that a boy under the age of 14 is incapable of having sexual intercourse, which originated in the English common law in the 1700s. This provision did not operate retrospectively and has been recognised as having the potential to protect an alleged perpetrator from being charged and convicted of historical sex offences.

Turning now to the amendments to the Criminal Procedure Act 1921 contained in part 3 of the bill, there are a number of recommendations which aimed at alleviating the need for child sexual abuse victims to attend court, where they are again confronted by their abuser and often experience significant distress during cross-examination. Consistent with these recommendations, clause 9 of the bill amends section 111 of the Criminal Procedure Act to allow for the admission of audio or audiovisual recordings of interviews with victims of both sexual and domestic abuse at committal, instead of relying on written statements.

Clause 10 of the bill amends section 114(3) of the Criminal Procedure Act. Under the current law, if a witness is a victim of an alleged sexual offence, has a cognitive impairment that adversely affects their capacity to give a coherent account of experiences or respond rationally to questions, or is under 14, then the court must not grant permission to call a witness for oral examination in committal proceedings unless satisfied that the interests of justice cannot be adequately served except by doing so. Clause 10 expands this provision to also include victims of an alleged offence involving domestic abuse.

In line with recommendation 79, clause 11 of the bill amends section 157 of the Criminal Procedure Act to give the DPP the right to bring an interlocutory appeal against a pre-trial ruling that has the effect of terminating or substantially weakening the prosecution's case. This clause can apply to other situations in the interests of justice. The DPP's current right of appeal is very limited, and the absence of such a right has led to unfavourable outcomes in the courts. The defendant already has a right to appeal interlocutory decisions at the completion of the trial under the Criminal Procedure Act.

Turning now to the amendments to the Evidence Act 1929 contained in part 4 of the bill, in line with recommendations 52 and 53 clause 13(2) of the bill amends section 12AB of the Evidence Act to expand the categories of witnesses who may give evidence at a pre-trial special hearing. This provision will now include the following: all child sexual abuse victims no matter what their age at the time of the trial; any other witness in a child sexual offence trial who is a child, is vulnerable or a person who the court is satisfied should be allowed to give evidence in a manner contemplated by this section; and domestic abuse victims. Such hearings alleviate the need for victims to be confronted by their abuser when they give evidence in court.

In line with recommendations 54 and 60, clauses 13(1)and 14 of the bill allow the court to make orders regarding the manner, duration and type of questions that may be asked of witnesses at pre-trial special hearings and of vulnerable witnesses giving evidence in a trial of child sexual offences. Directions can also be made that certain evidence that contradicts, challenges or discredits a witness's evidence need not be put to the witness. The court may also make directions about the use of aids such as plans and maps that help communicate a question or answer.

In line with recommendation 56, clause 15 of the bill amends section 13C of the Evidence Act to require audiovisual recordings of the evidence for all child sexual abuse victims given in court. Currently, under the Evidence Act, recordings are only required for vulnerable witnesses, which is limited to a child of, or under, the age of 16 years who is the victim of a sexual offence. Such recordings may be relied upon in any subsequent trial or retrial.

Clause 16 of the bill inserts new section 29B into the Evidence Act to abolish Markuleski directions, as recommended in the report. New section 29B provides that in a trial where more than one offence is charged, a trial judge must not direct a jury that its doubt regarding the truthfulness or reliability of the victim's evidence in relation to one charge can be considered when assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.

As proposed in recommendation 69, clause 16 of the bill inserts new section 29C into the Evidence Act. This allows for the admission of expert evidence on the development and behaviour of children generally, and the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences in proceedings related to child sexual abuse. Such evidence would be useful to the jury to assist them in better understanding the evidence given by child sexual abuse victims.

Clause 17 of the bill amends section 34P of the Evidence Act to increase the admissibility of discreditable conduct evidence. Discreditable conduct comprises a propensity and similarity of account evidence. The royal commission recommended reform to the law governing the admissibility of discreditable conduct evidence. However, South Australian law in this area is well settled and is not necessary to adopt major reform. Instead, a minor amendment has been made, encouraging greater admission of this evidence. In order to admit this kind of evidence, section 34P(2) of the Evidence Act requires that its probative value substantially outweighs the prejudicial effect that it may have on the accused. Clause 17 of the bill removes the word 'substantially'.

Clause 18 inserts new section 65K into the Evidence Act to provide that the fact the information was gained during or in connection with a religious confession does not prevent or otherwise affect the giving of evidence as to, or the disclosure of, the information for the purpose of any civil or criminal proceedings for child sexual abuse. This is consistent with recommendations 33 and 36. A working group was established by the Council of Attorneys-General to consider these recommendations, which proposed principles for reform in this area. The amendments contained in clause 18 of the bill are consistent with these principles for reform, which were subsequently endorsed by the council on 22 November 2019.

Part 5 of the bill amends the Sentencing Act 2017. In line with recommendation 75, clause 19 of the bill amends section 26 of the Sentencing Act to require the court, when setting a single sentence for an offence involving different victims or one committed on different occasions, to indicate the sentence that would have been imposed in respect of each offence.

Clause 21 of the bill enacts recommendation 76 by amending section 68 of the Sentencing Act. Clause 21 requires the court, when sentencing for child sexual abuse offences, to set sentences in accordance with the sentencing standards at the time of sentencing instead of the time of the offending. However, the sentence must be limited to the maximum sentence available at the date when the offence was committed. This clause clarifies and replaces section 68 of the Sentencing Act.

Part 6 of the bill amends the Summary Offences Act 1953. In line with recommendation 52, clause 22 amends section 74EA of the Summary Offences Act to require pre-recorded investigative interviews with police for all child sexual abuse victims, no matter what their age is at trial. There is currently only an obligation to record interviews with children under the age of 14, or for a person with a disability that adversely affects their capacity to give a coherent account of the person's experiences or to respond rationally to questions. Application can be made under the Evidence Act for these recorded interviews to be admitted at trial instead of the witness having to give evidence.

Finally, in line with recommendation 84, part 7 of the bill amends the Young Offenders Act 1993 by inserting new section 19A. This section provides that, for committal proceedings in the Youth Court, an audiovisual record of evidence from the victim of a child sexual offence may be admitted if the recording is of evidence given in earlier criminal proceedings or during an investigative interview under part 17, division 3, of the Summary Offences Act.

In order to admit the recording, the court must be satisfied as to the victim's capacity to give evidence, and the defendant must be given a reasonable opportunity to view the recording. New section 19A also provides that the victim of a child sexual offence cannot be required to give oral evidence at committal, except in the form of an audiovisual record. These provisions are aimed at ensuring the victims of child sexual abuse do not have to give evidence on any additional occasion in circumstances where the accused is a juvenile.

The purpose of this bill is to promote the identification of individuals who sexually abuse children and to ensure their appropriate conviction in the courts. It also seeks to protect and assist child sexual abuse victims through the court process to reduce the trauma that they often suffer. The impact of child sexual abuse can be lifelong, and the impact on their families and the broader community is often felt by subsequent generations. Assisting domestic abuse victims through the court process is also a particular concern, and has been included in this bill as part of the South Australian government's commitment to reform addressing domestic and family violence in South Australia.

I commend the bill to members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 49—Unlawful sexual intercourse

This clause creates a new defence for a person accused of a 'position of authority' unlawful sexual intercourse offence by virtue of the person providing religious, sporting, musical or other instruction to the victim. The defence will only apply where the victim was 17 at the time of the offence and either the accused was under the age of 18 at the time of the alleged offence or the accused believed the victim was 18 or over.

5—Amendment of section 57—Consent no defence in certain cases

This clause creates a new defence for a person accused of a 'position of authority' indecent assault offence by virtue of the person providing religious, sporting, musical or other instruction to the victim. The defence will only apply where the victim was 17 at the time of the offence and either the accused was under the age of 18 at the time of the alleged offence or the accused believed the victim was 18 or over.

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

This clause creates a new defence for a person accused of a 'position of authority' offence against section 63B (1)(a), (1)(b)(i) or (3) by virtue of the person providing religious, sporting, musical or other instruction to the victim. The defence will only apply where the victim was 17 at the time of the offence and either the accused was under the age of 18 at the time of the alleged offence or the accused believed the victim was 18 or over.

7—Insertion of Part 3 Division 11B

This clause inserts new offences relating to institutional child sexual abuse as follows:

Division 11B—Institutional and out of home care child sexual abuse

64—Interpretation

This provision defines certain terms used in the Division.

64A—Failure to report suspected child sexual abuse

This provision creates a new offence in certain circumstances where an employee of an institution or provider of out of home care knows, suspects or should have suspected that another person has previously engaged in the sexual abuse of a child or is engaging, or is likely to engage, in the sexual abuse of a child, and refuses or fails to report that to police. The maximum penalty is 3 years imprisonment. It is a defence to a charge of the offence if the defendant had a reasonable excuse for the refusal or failure to report.

65—Failure to protect child from sexual abuse

This provision creates a new offence in certain circumstances where an employee of an institution or provider of out of home care knows that there is a substantial risk that another person will engage in the sexual abuse of a child and has the power or responsibility to reduce or remove that risk but negligently fails to do so. The maximum penalty for the offence is 15 years imprisonment

8—Amendment of section 73—Proof of certain matters

This clause makes the rule that no person will, by reason of their age, be presumed incapable of sexual intercourse retrospective.

Part 3—Amendment of Criminal Procedure Act 1921

9—Amendment of section 111—Committal brief etc

Section 111(5) allows a police record of interview or an audiovisual record to be used as a witness statement for certain categories of vulnerable witnesses. This clause amends section 111(6) to include victims of alleged sexual abuse as well as victims of alleged offences involving domestic abuse as witnesses to whom subsection (5) applies.

10—Amendment of section 114—Taking evidence at committal proceedings

This clause amends section 114(3) for consistency to include victims of alleged offences involving domestic abuse as witnesses who cannot be called for oral examination at committal proceedings unless the court is satisfied that the interests of justice cannot be adequately served except by doing so.

11—Amendment of section 157—Right of appeal in criminal cases

This clause allows the Director of Public Prosecutions, with the permission of the Full Court, to appeal against an interlocutory judgement where the interlocutory judgement destroys or substantially weakens any charge and, if correct, is likely to lead to abandonment of that charge or where it is in the interests of justice for the appeal to be permitted.

Part 4—Amendment of Evidence Act 1929

12—Amendment of section 4—Interpretation

This clause inserts a definition of child sexual offence.

13—Amendment of section 12AB—Pre-trial special hearings

This clause lists a number of kinds of directions that a court may make when making an order for a pre-trial special hearing in relation to a witness in a trial of a charge of a child sexual offence. The clause also provides that, in the case of a trial of a charge of a child sexual offence, the section will apply to an alleged victim of the offence (regardless of their age at the time of the trial), a child, a vulnerable witness or any other witness if the court is satisfied that they should be allowed to give evidence in a manner contemplated by the section.

14—Amendment of section 13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings

This clause provides an equivalent direction making power for courts making an order under section 13A.

15—Amendment of section 13C—Court's power to make audio visual record of evidence of vulnerable witnesses in criminal proceedings

This clause requires that, if a witness is the alleged victim of a child sexual offence, the court must order that an audio visual record be made of a witness's evidence before the court (unless such an order has already been made).

16—Insertion of sections 29B and 29C

This clause inserts new sections as follows:

29B—Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence

This provision prohibits a trial judge from directing a jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.

29C—Evidence of opinions based on specialised knowledge of child behaviour etc

This provision provides that if a person has specialised knowledge of child development and child behaviour then evidence of that person's opinion that is wholly or substantially based on that specialised knowledge is admissible in proceedings relating to sexual abuse of a child.

17—Amendment of section 34P—Evidence of discreditable conduct

This clause alters the test for admitting discreditable conduct evidence for a permissible use to require that the judge be satisfied that the probative value of the evidence admitted for that use outweighs any prejudicial effect (rather than the current requirement that it 'substantially outweighs' any prejudicial effect).

18—Insertion of Part 7 Division 11

This clause inserts a new Division specifying that no confessional privilege applies in civil or criminal child sexual abuse matters in the State.

Part 5—Amendment of Sentencing Act 2017

19—Amendment of section 26—Sentencing for multiple offences

If a court is imposing a single sentence for multiple offences involving different victims or committed on different occasions, this provision will require the court to indicate the sentence that would have been imposed in respect of each offence had the court not imposed a single sentence.

20—Amendment of heading to Part 3 Division 6

This clause deletes a reference to paedophilia and replaces it with a reference to child sexual abuse.

21—Substitution of section 68

This clause inserts a new provision requiring a court that is sentencing an offender in relation to a child sexual offence to have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed.

Part 6—Amendment of Summary Offences Act 1953

22—Amendment of section 74EA—Application and interpretation

This clause applies the Division on recording interviews with vulnerable witnesses to any person being interviewed as the victim of an alleged child sexual offence.

Part 7—Amendment of Young Offenders Act 1993

23—Insertion of section 19A

This clause inserts a new provision allowing the alleged victim of a child sexual offence to give pre-recorded evidence in committal proceedings in the Youth Court and ensuring that the alleged victim cannot be required to give oral evidence for the purposes of the committal proceedings except evidence in the form of such a recording.

Debate adjourned on motion of Hon. I.K. Hunter.

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