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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-16 Daily Xml
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Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 May 2023.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (16:26): Language matters, words are powerful, and I rise to support the government's Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill 2023.

What seems to be a small and, at first glance, inconsequential change to wording in relation to one of the most repugnant of offences, these words will have significant and far-reaching connotations. Removing the description of 'unlawful sexual relationship with a child' from the legislation is a positive and significant step. Replacing it instead with 'sexual abuse of a child' better describes the seriousness of the offence and gives victims a sense of self-value and respect, relieving them of any implication of relationship.

Children and young people have long had their circumstances controlled by adults. This small amendment demonstrates more articulately that no child is able to consent to a sexual relationship with an adult, that there is a power imbalance and that they are in no way to blame. It would be ideal for us to never have any children being abused. We can never give a child victim back their innocence or childhood, that is something that their perpetrator takes. We must, however, do all that we can within our power to ensure that the legislation we have to protect those precious children is as strong and as robust as it ought to be. I believe this amendment is designed to do just that and it has the full support of the Liberal opposition.

The Hon. E.S. BOURKE (16:27): I rise to speak in support of this very important bill. As members will be aware, this bill has come about due to the advocacy of Ms Grace Tame. She was named Australian of the Year in 2021 for her extraordinary work in raising awareness of child sexual abuse in Tasmania, and she has since used that platform to maximise her incredible position.

We are now having a national discussion about child sexual abuse and, as a result of the Grace Tame Foundation's Harmony Campaign, we are moving towards consistency in child sexual abuse laws across Australia. This bill is one part of that effort. The bill amends the Criminal Law Consolidation Act by changing the title of the offence 'unlawful sexual relationship with a child' to 'sexual abuse of a child'.

In March this year, the Attorney-General, the Hon. Kyam Maher, met with Grace Tame and heard her story. As Grace Tame told the Attorney-General, her abuser was able to hide behind the legal name of his offending, saying, 'I was convicted of maintaining a relationship.' As Ms Tame pointed out, the word 'relationship' implies mutual responsibility and consent, and diminishes the gravity of the offence. It softens the offending and makes it seem as though there is some kind of romance involved.

Changing the language in the act will change the language used when describing the offence. This amendment calls the crime what it is: it is sexual abuse. It is not in any way a relationship. It is a betrayal of the trust a child should be able to place in an adult. It is the abuse of the power an adult has over an innocent child. It is abuse in one of its worst forms, and it should not be called anything related to a relationship.

Changing the way we talk about child sexual abuse changes the way we think about it. It changes the nature of the offence in our minds. Changing the language will affect the way the offence is interpreted by the legal profession and, importantly, it will change media reporting of the offence. It will change public perceptions of the offence and help raise awareness of child sexual abuse. It will validate for victim survivors that what happened to them was the worst kind of offending and that they were not in any way responsible, that there is no way that was any form of a relationship.

In addition, the current title 'unlawful sexual relationship with a child' suggests that it is possible somehow to have a lawful sexual relationship with a child: of course it is not. I also take this opportunity to note that autistic children are at greater risk of abuse. Although Grace Tame has said that her autism was not the only factor for her vulnerability, we know that the rates of abuse of children with autism are higher. A recent French study showed that of autistic women who have experienced abuse, two-thirds had been abused when they were under the age of 18.

Making this change will bring South Australia into line with other jurisdictions in Australia. In Western Australia, New South Wales, Victoria and Tasmania the relevant child sexual offences have headings that use the term 'persistent sexual abuse of a child'. Recently, Queensland and the ACT amended the title of the offences, and the Northern Territory is also on track to amend their act.

I am pleased to note that the South Australian and federal governments are currently undertaking a broader review of sexual consent and abuse laws. The issue raised by the Harmony Campaign will be considered by that review also. As the Harmony Campaign points out, there are eight different definitions of 'sexual intercourse', 'grooming', 'the age of consent' and the punishment for sexual abuse across our jurisdictions. There is no justification for that.

Thanks to Grace Tame, the issue of child sexual abuse is now getting the attention it deserves. I commend the Attorney-General for ensuring that South Australia's laws meet community expectations. I also acknowledge the advocacy of the Hon. Connie Bonaros and the Hon. Tammy Franks on this issue. Most of all, I pay tribute to victim survivors who, by telling their stories, make it easier for others to speak up and harder for abusers to continue their offending.

The Hon. R.P. WORTLEY (16:32): I rise to support the bill. The Attorney-General met with Grace Tame in March to discuss her foundation's Harmony Campaign, which calls on jurisdictions to harmonise laws that pertain to sexual assault. One of the areas in which harmonisation is sought by the campaign is in the language used to describe child sexual offences.

In South Australia, section 50 of the Criminal Law Consolidation Act 1935 provides that an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The maximum penalty for this offence is imprisonment for life. In Western Australia, New South Wales, Victoria and Tasmania, the relevant child sexual offences have headings that use the term 'persistent sexual abuse of a child'.

In South Australia, Queensland, the Australian Capital Territory and the Northern Territory the headings for the relevant offences refer or referred to a 'relationship with a child'. Queensland and the Australian Capital Territory recently changed the headings of their offences, and the Northern Territory recently consulted on an exposure draft bill that would change the heading of their relevant offences.

At the crux of Ms Tame's concerns is that the word 'relationship' implies mutual responsibility and consent and diminishes the gravity of the offence. In response to Ms Tame's advocacy, and in particular her concerns that the word 'relationship' implies mutual responsibility and consent and diminishes the gravity of the offence, the government has introduced the Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill to change the heading of section 50 of the Criminal Law Consolidation Act 1935 from 'Unlawful sexual relationship with a child' to 'Sexual abuse of a child'.

Importantly, the bill also inserts a new subsection (14) into section 50 of the Criminal Law Consolidation Act to dis-apply the Legislation Interpretation Act 2021 to provide that the heading does not form part of the section and that there is no intention for the new heading to affect the interpretation or operation of the offence.

The bill does not change the elements of the offence, and maintaining an unlawful sexual relationship will still be an element of the offence, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. This is consistent with similar offences in Queensland, the Australian Capital Territory, New South Wales and Tasmania.

A broader review of sexual consent and abuse laws that includes other issues raised by Ms Tame and her foundation, Harmony Campaign, is currently being undertaken by the South Australian and federal governments. While a technically simple change, this bill is an important one in its recognition of the advocacy of Ms Grace Tame and the Harmony Campaign that language matters and we cannot give perpetrators licence to characterise abuse as romance.

Prior to 2017, the section 50 offence was 'persistent sexual exploitation of a child', which provided that the offender could be found guilty as long as the jury was satisfied that more than one sexual act was committed against the child over a period of not less than three days. In 2017, the High Court decision in Chiro v The Queen meant that there was then a possibility that judges would have to sentence the accused on the version of facts most favourable to the offender; for instance, taking into account the two least serious acts.

To avoid this issue, the offence was changed to 'persistent sexual abuse of a child', adopting model provisions recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse around maintaining an unlawful sexual relationship. This removed the requirement to prove the particular unlawful sexual acts to establish the offence.

In 2021, the offence heading was changed to 'Unlawful relationship with a child' after the DPP raised concerns that the word 'persistent' in the heading could give rise to an argument that the word must have some work to do in interpreting the provision. In order to overcome these issues, section 50 was replaced in late 2017 to introduce the relationship offence titled 'Persistent sexual abuse of a child', which was based on model provisions recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

The relationship offence removes the requirement to provide particular offences to establish the persistent offence. The heading of section 50 was changed in 2021 to 'Unlawful relationship with a child' in response to concerns raised by the DPP that the heading was no longer appropriate as the persistent sexual abuse of a child is no longer an element of the offence. Concerns were raised that the language of 'persistent' in the section heading could give rise to an argument that the word must have some work to do in interpreting the provision.

It is a very important provision. It is not earth-shattering in the actual change, but very important, as raised by various commissions and Grace Tame. I urge all members of this chamber to support the bill.

The Hon. T.A. FRANKS (16:38): I rise today on behalf of the Greens to confirm our support for this bill, which should come as no surprise because the Greens were working on a similar bill. While it is not a complex change, it will be important to reflect the reality of what is happening in these situations; that is, actually, it is the persistent sexual abuse of a child. I first must acknowledge Grace Tame and her extraordinary work in pushing for reform. Her speeches to the National Press Club highlighted this issue, and her experiences gave many people an insight into the importance of such a change.

Our choice of words matters. Our language matters. Our words have meaning, not only to the people directly affected by them but also to how society views these criminal acts and the victim survivors of them. Child victim survivors of sexual abuse are groomed, they are manipulated. Part of that grooming for many victims includes platitudes, includes gifts, or simply making that child feel special.

What can result is that the child feels that they do have a choice. A child can feel as though they have been chosen to continue to see their abuser. While the reality of the situation is fundamentally different, a child sexual assault survivor remembers those feelings. Their feelings replay alongside the trauma, leading that survivor victim to feel that their actions contributed to the abuse they suffered. I want to be clear: they did not.

Calling what had happened, rather than a relationship, even an unlawful one, is necessary. Calling this abuse a relationship compounds the pain. Nina Funnell, a journalist and survivor advocate, who founded the #LetHerSpeak campaign, has said that the 'sinister' language of a relationship exacerbates the trauma of victim survivors, painting them as an active participant in a mutual romance. This is backed by research that shows us that, in some cases, courts have interpreted the crime of an unlawful sexual relationship by comparing it to an ordinary sexual relationship between mutually consenting adults.

At no point in time is what is happening here a relationship. A relationship is about choice, a relationship is consent, a relationship is reciprocal. Our language matters. It matters for survivor victims, it matters for those who face the daunting prospect of confronting their abuser in court, and it matters for those victim survivors who cannot do that. The notion of a relationship has absolutely no place in this law. The use of the term perpetuates an idea that unlawful sexual acts with a child are a result of a bond between two people, an equal bond. It is patently clear that this is not the case. You have an adult in, perhaps, a position of power, assaulting a child, a victim survivor, and a child who irrespective of their actions was never in a position of power or control.

The offence is absolutely abhorrent and allows offenders to be described in a way that allows the very real harm of their abuse to be minimised through the word 'relationship' and this must end. Renaming the offence in our legislation is a move towards national consistency in that language that is used to describe child sex offences. To be clear, the elements of the offence will not be changed by this amendment and 'engaging in a relationship' will remain an element of the offence as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

However, the offence will now accurately be named in a way that reflects its inherent abuse. The law as it currently stands highlights a perception of choice, a concept that the word 'relationship' implies. We must consider what message this kind of language sends to our community. Language does matter. We cannot give these victim survivors their childhoods back; we can give them respect and dignity.

South Australia should not be left behind on this issue. I say this for victim survivors, I say this for young people who are abused: our language carries meaning, a profound meaning for some, and 'relationship' does imply consent. We should aim for a nationally consistent approach to our language on this issue, and I note that other states have already moved to make this change.

I thank Cassandra Alvey and Sian Davies of my office for their work, both of whom have put considerable time into this issue with the preparation of a private member's bill that the Greens are pleased we did not need to bring before this house. We also note the work previously of the Hon. Connie Bonaros and welcome that collaboration with the Attorney-General and thank him for his leadership on this issue. With that, I commend the bill.

The Hon. S.L. GAME (16:44): I rise briefly to support the bill and the change of the wording and echo the sentiments other members have already expressed in this chamber. One Nation supports any law amendment that will prevent child exploitation and increase penalties or the scope of offenders that perpetrate these heinous acts. We support the government in the measures they seek on this matter.

The Hon. C. BONAROS (16:44): I rise on behalf of SA-Best to speak in support of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill 2023 and echo the sentiments of other members. As has already been highlighted, the bill seeks to amend the title of the offence 'Unlawful sexual relationship with a child' to 'Sexual abuse of a child'. It is a term we expressed particular concern about during debate on a similar bill last year, resulting in amendments. The use of the word 'relationship' grossly conveys a message of consent and certainly does not reflect the gravity of offending.

After those discussions with the Attorney at the time, we certainly appreciated the need to tread carefully around what is a very complex area of law and resisted the temptation to jump in, to dive in, and deal with it then and there. On that note, I, too, note the advocacy and work of the Hon. Tammy Franks on the same issue in terms of drafting a private member's bill. I note collectively the desire of all of us in here to get this right and I also am thankful for the Attorney and the honourable member and indeed everybody in this place, which will ensure that this bill has multipartisan and unanimous support through this parliament.

The last thing any of us wanted to do was to make it easier for a child sex offender to avoid a conviction on a legal argument, so I am glad that we have managed to get here today. That is what we all wanted. It is also the reason, as has been outlined, why the bill only seeks to amend the title, but that in and of itself is hugely important. We are not seeking to amend the interpretation or operation of the section, which will remain in keeping with the model provisions as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

In 2021, the title was changed from 'Persistent sexual abuse of a child' to the current heading of 'Unlawful sexual relationship with a child' to reflect the elements of the offence, and I think it is important to recognise that the bill does not seek to amend those elements in any way, shape or form.

Section 50 will continue to prescribe that an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. An unlawful sexual relationship will continue to mean a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period, and I think that is really the crux of what we are dealing with in those words there. It will ensure we are not opening the door to legal argument as to the interpretation of elements of the offence.

The amendment will, however, mean a person accused of this offence will answer to the charge of sexual abuse of a child. It will mean the media will report the cases for what they are. It will mean the media will report on an accused being found guilty of or sentenced for the sexual abuse of a child rather than an unlawful sexual relationship with a child.

I agree with all honourable members that words do matter and language should reflect the heinous nature of the offending against a child, no less, if only for the benefit of that child as they grapple with what has happened to them for the rest of their lives. They, being innocent kids, are the ones who are going to need to process all of this and live with it, so the least we can do as a state and, indeed, as a nation is ensure that the language we use fits the terrible crime they have been the victim of without any inference, suggestion or intimation otherwise.

I note that we ran through the cause lists of the courts and looked at how many of these were listed. There are quite a few, and I will ask the Attorney one question about that during the committee stage debate. There was a judgement the other week against an offender where it was stated by the judge that it was the worst sort of offending against a child—sadly in that case against a baby, an infant—that they had ever had to deal with as a judge, and that offence fell under the heading that we are amending. So when it was reported it was reported as a relationship with a child, and we are talking about a child where the offending started at four or five months old. That is not okay. It is not okay to minimise that offending in any way, including by the language we use to describe it.

It is a small but significant change but it has also been brought about as a response to the fierce advocacy of Grace Tame, former Australian of the Year and victim survivor of child abuse. We are the second to last jurisdiction to respond to her call for this change of language, with the Northern Territory now on the list. But I think Grace's work is far from done. We have just changed language around 'child sexual services' to 'child sexual servitude' and we are all particularly grateful to the Attorney for agreeing to those changes as well. We are now debating this important change.

Grace's foundation, Harmony Campaign, is continuing the advocacy for nationally consistent sexual assault laws including definitions of 'sexual intercourse' and 'grooming' and we will be watching that space closely, which means really that our work in this space is not done. Words absolutely do matter but our actions always speak even louder, so we look forward to further collaborating with our colleagues on changes to our laws to better protect our children and victim survivors and deter the depraved perpetrators who commit such heinous acts.

In closing, I too would like to take this opportunity to thank Grace for her fierce advocacy, her strength, her tenacity. What she went through is not lost on any of us. What she has done since is simply remarkable. I attended and heard Grace tell her story in Adelaide and it is chilling, it is harrowing, and frankly I think I speak probably for all of us with children when I say it is every parent's worst nightmare when it comes to their own child. I am grateful to Grace for her perseverance and strength, and indeed determination, in telling that story and fighting so hard to change the narrative.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:51): I want to thank the members who have contributed to the second reading debate today: the Hon. Nicola Centofanti on behalf of the opposition, the Hon. Emily Bourke, the Hon. Russell Wortley, the Hon. Tammy Franks on behalf of the Greens, the Hon. Sarah Game, and the Hon. Connie Bonaros.

As members have traversed, this is a matter that really has been a collaborative effort. It was something that was highlighted by an amendment some time ago by the Hon. Connie Bonaros. It is something that the Hon. Tammy Franks was working on almost at exactly the same time as the government was, and it was a chance discussion with the Hon. Tammy Franks where we discovered on the same week we would introduce bills to bring about the same desired effect that we are seeing here today.

As members have mentioned, words are important and this is an important amendment that changes the way we describe this offence. Every child who is a victim survivor of childhood sexual abuse has a different story and has had their lives changed forever by the vile acts that someone has committed. I think one word from the debate during the second reading that sums up Grace Tame is fierce—fierce in her determination, fierce in her strength, fierce in her desire to use what has happened in her life to bring about change for others.

Grace Tame was in the gallery as we introduced this bill in the last sitting week and I just cannot imagine what sort of strength it takes to sit listening to others talk about your experiences and the chilling and harrowing things that have happened to you. Of course, what was said was with Grace's permission and endorsement to be able to tell those things, and her having to relive them while watching proceedings unfold in this chamber, but it is extraordinarily important.

It is a remarkable credit to Grace Tame and to the many other advocates and victim survivors of childhood sexual abuse, and other victim survivors in so many other areas, that they have used something that is enough to break most people to make change, to make it better for other people and those who come after them who have to suffer such horrendous things.

With that, I am very pleased to commend the bill to this chamber, noting and thanking members for their patience and perseverance in making sure we got this right because, as has been mentioned, it would be a terrible outcome if we changed this and one of the unintended consequences was that, in following High Court precedent, we actually made it easier for people who commit these crimes to escape the maximum possible penalty that a court can impose.

I thank members for their contributions and look forward to it passing this chamber and then the other place very soon. I hope that we can have this done before we all rise for the winter break and change what is said in the legislation and consequently the way this is described in the greater community.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I have one question and that is in relation to some statistics that the Attorney provided us in relation to the number of finalised defendants with a charge of one lawful sexual relationship. I hope this speaks to the merit of these laws. There has been a significant jump from 2018-19 to 2021-22 in terms of the total number of charges. I am wondering whether that is directly related to the language that has been used or some other factor. There is a very significant spike based on the number of charges that have been laid between 2018-19 and 2021-22 from two to 89, and I wonder whether that is directly related to the changes in language or the number of offences that are actually—

The Hon. K.J. MAHER: I thank the honourable member for her question. My advice is that we do not have any of the information that sits behind the raw numbers that we are able to provide. For clarification, it is the year of the finalisation of the charges, not the charges being laid, which would be a lag of some time. I am afraid I do not have any advice as to what sits behind those numbers, but it is a very significant increase from 2018-19 to 2021-22. I do not know if 2018-19 uses the first and the base you hear was an outlier year. I am sorry, I just do not have any information on that.

Clause passed.

Remaining clauses (2 and 3) passed, schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 17:00 the council adjourned until Wednesday 17 May 2023 at 14:15.

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