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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-21 Daily Xml
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Statutes Amendment (Child Sexual Abuse) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 August 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:29): I rise to speak on this bill and indicate I will be the lead speaker for the opposition in this chamber. The bill addresses recommendations from the 2017 criminal justice report of the Royal Commission into Institutional Responses to Child Sexual Abuse.

The bill's proposals include introducing 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. It introduces a new statutory offence of 'failure to report' that applies to a prescribed person who 'knows that there is substantial risk' of abuse by or against a person in an institution or out-of-home care. The maximum proposed penalty is 15 years in prison. The 'prescribed person' in two new offences is defined in the bill as:

(a) is an employee of an institution, including a person who—

(i) is a self-employed person who constitutes, or who carries out work for, an institution; or

(ii) carries out work for an institution under a contract for services; or

(iii) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or

(iv) undertakes practical training with an institution…; or

(v) carries out work as a volunteer…; or

(vi) is of a class prescribed by the regulations…

'Prescribed person' also encapsulates someone who provides out-of-home care.

The bill also in its provisions allows 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 pre-record evidence to avoid confronting their accuser during cross-examination and 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 to include all victims of child sexual abuse or domestic violence. It is similarly allowed for people with a disability under 14 years of age. 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 and committal hearings so that pre-recorded 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 those children who have been victims of child sexual abuse to be admissible. This is similar to recent changes in domestic violence laws.

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 has concerns about this measure. I thank the Law Society, as often happens, for their views and for letting us know about the different views of the Law Society in relation to legislation. I note that in relation to this legislation the Law Society's Criminal Law Committee and the Law Society's Children and the Law Committee have expressed different views on some elements of this bill.

The bill also provides that information gained during religious confessions is not prevented from being given or disclosed in criminal or civil proceedings. The bill also makes changes 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. However, as occasionally occurs with important pieces of legislation, the government has waited too long to act. The royal commission provided its recommendations some four years ago. Had the provisions of this bill been in place months or years ago there is every chance that more offenders may have been apprehended and victims may have had more options.

Labor has taken a strong stance on cracking down on child sex offenders and supporting victims of these hideous crimes and we will be supporting this bill.

The Hon. T.A. FRANKS (15:33): The Greens support the Statutes Amendment (Child Sexual Abuse) Bill 2021. This bill introduces a number of important reforms as they were proposed by the Royal Commission into Institutional Responses to Child Sexual Abuse. As well as implementing recommendations from the report, the bill makes additional amendments aimed at assisting domestic abuse victims in our criminal justice system. This bill will amend the Criminal Law Consolidation Act in line with recommendation 29 to provide for a 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 of course 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 the position of authority under the Criminal Law Consolidation Act does mean 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 this bill will create new offences of failing to report and failing to protect a child from sexual abuse, in line with recommendations 36 and 33. New section 64A provides that it will be an offence if a prescribed person knows, suspects or should have suspected that another person had 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 the prescribed person refuses or fails to report that abuse to the police.

The offence also applies when the prescribed person is engaging or likely to engage in the sexual abuse of a child. This bill also provides definitions of a prescribed person, including an employee of an institution, including medical and religious institutions, and providers of out-of-home care such as foster carers. These provisions will actually 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, and no criminal or civil liability lies for reporting a matter in good faith under new section 64A. That prescribed person cannot be liable for professional misconduct. The identity of the reporter is protected if she or he has made the report under the Children and Young People (Safety) Act 2017, and he or she has the same protection from victimisation.

Importantly, this 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 will provide 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. This legislation is of course a companion piece to another child abuse bill. I indicate that my comments on this bill should be taken in support of the other bill. I understand we will be debating both of those today so I will not be repeating myself.

Importantly, I think some changes have been made that will certainly affect the SAPOL general orders to ensure we are protecting victims much better than we have in the past. Indeed, currently under the Evidence Act recordings are only required for vulnerable witnesses, which is limited to a child under the age of 16 who is a victim of a sexual offence, and such recordings may be relied upon in any subsequent trial or retrial. Here we are expanding the ability to use those audiovisual recordings of evidence for all child sexual abuse victims given in court, and SAPOL's practices will change accordingly. This is much welcomed.

Child sexual abuse and institutional sexual abuse is a scourge that for too long was silenced and victims went unsupported. Here we continue to do the important but very much unfinished business of supporting victims, of ensuring that they have protections and preventions and, should the worst happen, that they get justice. We support the bill.

The Hon. C. BONAROS (15:39): I rise on behalf of SA-Best to speak in support of the Statutes Amendment (Child Sexual Abuse) Bill 2021. The bill, as we have heard, specifically addresses important legislative reforms recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017. Many are already in place and this bill will go a long way in terms of addressing some of those issues that remain outstanding.

I do not propose to repeat everything the Treasurer has said in relation to every aspect of this bill but I might mention some key amendments which I think are particularly important. One is the introduction of a similar age defence to certain sex-related offences where the defendant was in a position of authority over the child. This will apply to instances where, for example, the victim was 17 or over at the time of the offence and the defendant was under 18 or when the defendant reasonably believed the victim was over 18.

The removal of the ridiculous presumption that a boy under the age of 14 is not capable of having sexual intercourse—which has previously provided protection to perpetrators charged with child sex offences against young boys—enables the DPP to appeal interlocutory judgements in cases where the Full Court is satisfied it destroys or substantially weakens the prosecution case. Historically, unfavourable pre-trial decisions have led to matters being abandoned and we welcome those and a host of other amendments to the Evidence Act as well aimed at protecting vulnerable witnesses.

They include the expansion of the classes of witnesses able to give evidence at special pre-trial hearings without the defendant being present. They are to include all child sexual abuse victims no matter what their age at trial and other vulnerable and/or child witnesses, and specific provisions for the admission of expert evidence about child development and behaviour. This will assist the judge and/or jury to understand complex behaviour and the requirement for police interviews of child sexual abuse victims to be recorded in order to preserve evidence for admission at trial in lieu of a witness giving evidence in person should an application be made at a later date.

The bill also seeks to amend the Sentencing Act to require the court to give an indication what sentence would have been opposed for each offence when sentencing for multiple episodes of offending or in cases where there are multiple victims. Penalties are to be based on those enforced at the time of sentencing, not at the time of offending. These were all royal commission recommendations. Overall, this is a very thorough bill and it is a very welcome bill; however, there is still room for improvement.

Members will note that in 2019 I introduced a private member's bill in this place which specifically addressed confessional privilege. I have reinserted those provisions into this bill because they are just as relevant and warranted today as when they were introduced in this place for the first time.

The first amendment seeks to close a loophole in the Children and Young People (Safety) Act 2017. As it stands—and I really want to make this clear for members—the act leaves open the possibility for future regulations to provide an exemption around the confession privilege. It is a simple fix: it shuts that door. Recommendation 7.4 of the final report states, and I quote:

Laws concerning mandatory reporting to child protection authorities should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.

We would be naive to think that child offences, including child sexual abuse, is purely a historical phenomenon. In fact, the royal commission heard from more than 200 survivors who said that they had been abused in a religious institution since 1990. We would be stupid and blind to think that that does not continue to occur today. There still remains a special level of responsibility, in my view, for priests and for ministers of religion to prevent current and future abuse.

I have also filed an amendment, again from my private member's bill dated 2019, requiring a priest or minister of religion to notify the police as soon as practicable if they form a suspicion that a prescribed child offence has been committed. I understand the government has circulated an email saying that it is opposed to this amendment for fear of singling out priests and other ministers of religion more than other prescribed persons. I would have thought history has shown us very clearly that this cohort should be singled out.

On 29 November 2018, almost three years ago, the Council of Attorneys-General met in Adelaide, and that meeting was chaired by our own Attorney. The summary of decisions from that meeting does just that: it singles out priests and ministers of religion. Entitled 'Response to Royal Commission recommendations concerning confessional privilege', it summarised:

Participants agreed to consider the application of the following principles in their respective legislation:

Confessional privilege cannot be relied upon to avoid a child protection or criminal obligation to report beliefs, suspicions or knowledge of child abuse;

Confessional privilege cannot be relied upon by a person, in civil or criminal proceedings, to excuse a failure to comply with any child protection or criminal obligation to report beliefs, suspicions or knowledge of child abuse; and

Confessional privilege cannot be relied upon by a person who had an obligation to report beliefs, suspicions or knowledge of child abuse, to avoid giving evidence in civil or criminal proceedings against a third person for child abuse offences.

As I said, those responses were given almost three years ago, yet still nothing has happened in this space to close the loophole that would clearly enable ministers of religion and priests to be exempted from those regulatory requirements in the future.

We should all be deeply disturbed by the fact that priests have knowingly and wilfully failed to report crimes against children—little kids—and they have used the sanctity of the confessional, of all things, as the basis for that failure. It sickens me and it should sicken all of us that priests, persons of the cloth, have used religion, something that many of us in this place and elsewhere hold dear, to cover up crimes against our most vulnerable community members. These are kids we are talking about after all.

History absolutely demonstrates that priests above everyone else should be held to a higher standard, because they have absolutely failed time and time again, historically, those vulnerable children. It is not just because they have failed those vulnerable children but because they have also fought tooth and nail to maintain the sanctity of the confessional when it comes to these sorts of crimes. We are not talking about petty crimes; we are talking about child sexual abuse. We are talking about rape, we are talking about murder, we are talking about the most heinous crimes that you can commit against a child. Ministers of religion and priests have fought tooth and nail against the measures to lift the privilege that applies to the confessional.

I would ask the Attorney and I would ask members of this place to put yourselves in the shoes of those kids and the shoes of those parents. Imagine their grief, their disappointment and their pain and the lifelong impacts that this has had on them and their families, especially when these are people of faith and this is where they have gone to, like many of us, when they were at their most vulnerable, and those priests and those ministers of religion have failed to disclose those heinous acts to the authorities.

They do not deserve to have that privilege, but they certainly, in my view, deserve to be held to a higher standard. For that reason, I will be pressing ahead with those amendments today, and I urge honourable members not to be persuaded by what I consider the very weak view of the Attorney, which goes against the grain of everything that she agreed to and this government agreed to in this place some years ago. With those words, I support the bill. I indicate that I will be moving the amendments and I will speak to them further when we get to them.

The Hon. R.I. LUCAS (Treasurer) (15:49): I rise briefly to thank honourable members for their contribution to the second reading of the bill and support for the second reading.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

New clause 3A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–2]—

Page 3, after line 8—Insert:

Part 1A—Amendment of Children and Young People (Safety) Act 2017

3A—Amendment of section 31—Reporting of suspicion that child or young person may be at risk

Section 31—after subsection (2) insert:

(2a) Regulations made for the purposes of subsection (2)(c) must not extend to circumstances in which a priest or other minister of religion forms a suspicion based on information communicated in the course of a confession made in accordance with the rules and usages of the relevant religion.

I have just outlined the reason for this, but for the purposes of being crystal clear: the purpose of this amendment is to close a legislative loophole that exists via regulation when it comes to priests and ministers of religion in terms of the confessional privilege and to bring those provisions fairly and squarely into the legislation.

I note that in 2019, following the agreement that I spoke of during my second reading, Victoria was the first jurisdiction to move to introduce legislation that dealt with this issue. They did not choose to do this by regulation. They certainly did not choose to allow a loophole that would enable priests or ministers of religion from being exempted in the future, and that is precisely the situation we find ourselves in now.

You can exclude circumstances from the obligation that applies by regulation. This government may have no intention of doing that. God knows what will happen in the March election. The next government may have no intention of doing that, but the simple fact remains that we do not know.

The Attorney will say that we have already dealt with this issue. It is clear that this loophole continues to exist, that there is absolutely nothing stopping the exclusion of priests and ministers of religion at any point in the future from being covered by these requirements. That is a woefully inadequate outcome and that is what this amendment seeks to address. It is a very simple amendment that would place the substantive elements of this into the legislation, as opposed to dealing with it by regulations that allow, potentially, for ministers of religion and priests to be excluded, and I urge honourable members to support it.

The Hon. R.I. LUCAS: I am advised that the Attorney-General and the government indicate their opposition to the amendment for the following reasons. A minister of religion is a person to whom section 31 of the Children and Young People (Safety) Act applies; therefore, a minister of religion who forms a relevant suspicion in the course of their employment is required to make a report subject to section 31(2).

Presumably a suspicion formed as a result of information communicated in the course of a confession would be formed in the course of the person's employment. Currently, under section 31(2)(c), a person need not report in circumstances prescribed by the regulations. This includes regulation 10—occasions when a person reasonably believes the department is already aware of the information forming the basis of the suspicion.

The amendment singles out priests and religious ministers as the only category of persons to whom this regulation would not apply. Firstly, it is not the intention of this bill to place harsh obligations on certain classes of prescribed persons. Secondly, the reason for opposing this amendment is to reduce the number of superfluous reports. The intention of regulation 10 is to remove the need to make a report in circumstances where it is superfluous to do so. To limit it in the manner which has been proposed is unnecessary in light of the fact that section 31 already places an obligation on ministers of religion.

A person must demonstrate reasonable grounds for believing the department is already aware that a child is at risk. For example, the process for making a mandatory report is set out in section 31(4) of the Children and Young People (Safety) Act 2017. Under this section, a telephone call can be made to a number determined by the minister. This is the Child Abuse Report Line (CARL). If you are aware that this has already occurred, there should be no penalty for not making a subsequent report.

The Hon. K.J. MAHER: We have had discussions and communications, both with the Hon. Connie Bonaros and from the Attorney's office, about the clauses put forward. We are concerned about the prospect of regulations being used that could—and I accept that this is not a current stated ambition or intention of the government—carve out ministers of religion by use of regulatory power.

We are keen to see that any future government not be able to do that. We are attracted to the amendments that would provide for that not happening. I think the amendments, as we understand it, do not provide any sort of increased penalty for a minister of religion than anyone else would be liable or subject to.

We have only received some further information from the Attorney's office this afternoon. As I say, we were attracted to the amendments that would not allow things to be cut out by regulation that the Hon. Connie Bonaros has put forward. On that basis, we are keen to keep the issue alive and will vote today for the amendments put forward by the Hon. Connie Bonaros but are keen to continue this discussion between the houses.

I want to be clear: we are not closed and in fact remain quite open to the possibility that between the houses there might be some further discussions that may modify the amendments or might even see our position being, when it comes to the lower house, one of not supporting the amendments, but we do not want to close that possibility off on the basis that the amendments do not prescribe any further potential liability for ministers of religion but, as described, provide that they cannot be excluded by regulation.

So on that basis, we will support the amendments but certainly reserve our right and our position between the houses as to how we vote in the lower house.

The Hon. J.A. DARLEY: For the record, I will be opposing this amendment.

The Hon. T.A. FRANKS: For the record, the Greens will not be supporting the SA-Best amendments. We understand that these are important issues and we actually have taken the advice from the Attorney at face value. I think that was a reasonable case that was put today.

New clause negatived.

Clauses 4 to 8 passed.

New clause 8A.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–2]—

Page 8, after line 19—Insert:

8A—Insertion of section 241A

After section 241 insert:

241AA—Priests to report certain offences involving children

(1) If a priest or other minister of religion forms a suspicion, in the course of carrying out their duties (including in the course of a confession made in accordance with the rules and usages of the relevant religion) that a person has committed a prescribed child offence, the priest or minister must notify a police officer of that suspicion as soon as practicable after forming the suspicion.

Maximum penalty: Imprisonment for 3 years.

(2) In this section—

prescribed child offence means—

(a) an offence against a following provision of the Act where the victim of the offence is a child:

(i) section 11 (murder);

(ii) a provision of Part 3 Division 11 (rape and other sexual offences) other than an offence against section 51(2), 58 or 61;

(iii) section 68 (use of children in commercial sexual services);

(iv) section 72 (incest); or

(b) an offence against Part 3 Division 11A (child exploitation material and related offences).

I might just clarify that the only difference between this amendment and the previous amendment was there were some questions that were asked of me in relation to why murder was included in the list of child sex offences. The answer that I would provide to members on the record for that is Carly's law and Carly Ryan. We know that the most heinous instances of this sort of offending do not just involve child sex offending and rape but they can ultimately lead to the murder of the minor involved.

That is precisely what happened in Carly Ryan's case, and that is precisely why this amendment was initially drafted in my bill the way it was, but to provide some clarity we sought to file a new amendment which made it clear that we were talking about a prescribed child offence, which would include the child sex offending, the rape and the murder of a child.

The other change that was made was to bring the penalty that applies in line with the penalties that apply in the government's bill, so I reduce the maximum prison term from five years to three, in line with offending that is outlined in the government's bill.

I am going to place on the record again that we have had a history of priests and ministers of religion failing, wilfully, to disclose crimes that they have been notified of in the sanctity of the confessional because they have been able to hide behind the guise of the confessional. The only people who have suffered as a result are those children who were abused and, of course, their families. This amendment seeks to make it a criminal offence with a maximum penalty of three years' imprisonment for a priest or minister of religion to do what I have just outlined.

The proposed offences where the abuse has already happened would be subject to a term of imprisonment of three years if a priest or a minister of religion fails to disclose crimes that have been reported to them in the confessional to the authorities. I, for the life of me, cannot understand how anyone could consider it feasible for a priest, in the past or in the future, to choose to not disclose that information and not be subject to this level of criminal penalty.

I think I have outlined already on the record my reasons as to why I think that priests should be held to a higher standard, because they have failed vulnerable children historically time and time again, so much so that we have had a royal commission into this issue, which has highlighted the extent of the issue.

We have seen the criminal trials that have taken place publicly. We have heard all the detail that we need to hear about why and how priests have chosen to maintain the sanctity of the confessional at the expense of children who have been sexually abused. I find that absolutely appalling. I am sure all of us find it absolutely appalling, but we should be doing everything to ensure that it does not occur. I make no apology for applying a higher standard to priests, because they have demonstrated in the past that they deserve to be held to a higher standard.

I find it particularly worrying that, even when the communiqué that I referred to of 2019 was agreed to, even when the justice report recommendations of 2017 were handed down, religions—and I think its fair to say the Catholic religion led the pack—fought tooth and nail to make sure those reforms never saw the light of day. They did not want the sanctity of the confessional lifted for crimes committed against anyone, but particularly against children, and I find that really disappointing. Priests deserve to be held to a higher level of account, and that is precisely what this amendment proposes to do.

The Hon. R.I. LUCAS: Again, on behalf of the Attorney-General I indicate opposition to this amendment, for the following reasons. This amendment imposes a greater obligation on priests and ministers of religion than that proposed by the government. The proposed section 64A—Failure to report suspected child sexual abuse, clause 7 of the Statutes Amendment (Child Sex Abuse) Bill 2021, creates an obligation to report offending which takes place in an institution.

This proposed amendment captures suspicion of the commission of a proscribed child sex offence, regardless of whether the offending is alleged to have taken place in the course of a person's employment in an institution. It is not the intention of this bill to place greater obligations on priests and religious ministers than other prescribed persons. It is for those reasons that the amendment is not supported.

The Hon. K.J. MAHER: We adopt the same attitude as with the last amendment.

The Hon. T.A. FRANKS: I do have a question: does this provision apply to pastors or reverends?

The Hon. C. BONAROS: Yes, the definition is priests and ministers of religion, so it would apply to a priest or minister of religion, which I assume would cover pastors or reverends, but I would have to seek some clarity if that is not the case.

The Hon. T.A. FRANKS: By limiting the field to a particular thing you have possibly moved an amendment that makes this weaker than it should be. The fact that it should apply to all equally is a stronger protection for children than trying to define what you have done. We will not be supporting this amendment, as I have indicated already, but that was an original observation. If you are not applying this to reverends and pastors, then what is going on with the wording of this amendment? It is not necessarily doing what you, through goodwill and good intention, would like it to do. My concern here is that actually you may in fact be limiting the provisions and protections that we are providing with this legislation.

The Hon. C. BONAROS: I do not think that is the case. The advice I had when I drafted this was that priests and ministers of religion would cover the cohort we were looking at. But, in any event, if pastors or reverends were for some reason not included in that, then they would continue to be included in the other provisions that apply in the bill, so this would still relate to priests or ministers of religion.

The Hon. J.A. DARLEY: I indicate that I will not be supporting this amendment.

The committee divided on the new clause:

Ayes 10

Noes 11

Majority 1

AYES
Bonaros, C. (teller) Bourke, E.S. Hanson, J.E.
Hunter, I.K. Maher, K.J. Ngo, T.T.
Pangallo, F. Pnevmatikos, I. Scriven, C.M.
Wortley, R.P.
NOES
Centofanti, N.J. Darley, J.A. Franks, T.A.
Girolamo, H.M. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Simms, R.A.
Stephens, T.J. Wade, S.G.

New clause thus negatived.

Remaining clauses (9 to 23) and titled passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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