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Speech: Statutes Amendment (Child Sexual Abuse) 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.

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