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Evidence (Children and Special Witnesses) Amendment Bill 2020


Cassy O'Connor MP

Cassy O'Connor MP  -  Tuesday, 15 September 2020

Tags: Legislation, Children, Justice, Vulnerable Children

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, the Greens will be supporting the Evidence (Children and Special Witnesses) Amendment Bill 2020. It is good, strong legislation and is absolutely necessary.

While we are today enacting a pilot witness intermediary scheme, I have no doubt that the scheme will prove to be of significant benefit to survivors and victims, but also to the administration of justice, and that the pilot scheme will need to be extended.

Like quite a few members of this place, in my life and in my work, I have come into contact with a number of people who experienced sexual abuse as children. I had a very close family member who was sexually abused as a child. She is no longer alive and I am sure that is a direct and tragic consequence of the abuse that she experienced at the age of six.

What we know about the effect of sexual abuse on children, is that it afflicts every part of a person's subsequent life. It is life-limiting, it affects every life choice a survivor makes, it impacts on their commitment to education, their capacity to secure employment, their ability to earn a living, to find a secure home and to establish lasting relationships.

It affects how survivors relate to the world and the people around them. More than anything else, it affects how the survivors relate to themselves, because with sexual abuse of children, a strong and recurring theme is one of shame, self-loathing, self-harm and a deep feeling that no one will help you, because no one did when you were a child. There is that sense of being almost an outsider to a system that you feel that has shut you out. That is why it is so important that parliaments enact legislation that provide true access to justice but are also sensitive to the person.

We need to have a whole system response. When we talk about trauma-informed care we need to do more than say the words. We need to understand the profound and devastating impact that trauma created by sexual abuse has on children who grow into adults. Some of those children will have found justice through the justice system. Some of those perpetrators will have faced retribution. Some of them do not make it.

Only last week I sat down with a survivor of sexual abuse as a child. Every aspect of her life has been impacted by what she experienced in her late primary school years. She lives in public housing, she has too few friends, she has some difficult relationships with her children. She still has not found justice. We are trying to help her find that justice. At the age of 61 this individual has never really had the space created for her where she could tell her harrowing story. Indeed, tragically, as it is for too many child victims of sexual abuse, her mother did not believe her at the time, which compounds the harm and compounds the trauma.

This legislation will help to remove some barriers for survivors and victims accessing justice. There have been some significant reforms go through this parliament, as the Attorney-General said, over a number of decades now, but particularly in the past 10 to 15 years. We have a bill that we are debating this afternoon, the Working With Vulnerable People Act , which I enacted as minister in 2013. We have removed the statute of limitations for survivors of child sexual abuse to take civil action. We have legislated to remove the protection of the confessional for paedophile priests. As we should.

The Royal Commission into Institutionalised Responses to Child Sexual Abuse was an absolutely necessary act of national truth telling, contrition on the part of the state for failing these children. It also provided the pathway forward so that we can be sure that we are creating child-safe organisations and child-safe communities. This legislation is another import step down that path.

The bill establishes the witness intermediary program for prescribed witnesses, that is children or adults who are survivors of abuse as a child, or adults with other communications needs will be supported through the court process in giving their evidence by witness intermediaries who will need to be impartial and compassionate skilled communicators. They then work with the witnesses, the lawyers, the judges and any other agency who may come into contact through the court process.

When we consider what the term a 'prescribed witness' means by definition of the act, what we are talking about is people who have experienced deep trauma, who are battling, in many cases, anxiety, depression, addiction, as they carry the burden of unspeakable crimes. It is that unspeakability of what happened to these children that demands of us a program like a witness intermediary program. This legislation is sensitive to survivors and victims, as it needs to be.

I have a couple of questions in the provisions of the bill. I want to thank the small team of people who gave us a briefing the other day, for the clarity of your briefing and your patience, and also the Tasmanian Law Reform Institute which undertook the foundational work for this legislation, and the late Vanessa Goodwin, the previous, very good Attorney-General.

When we talk about the meaning of a communication need, while the legislation does not require a diagnosis of a particular condition that may point to a communication, I am curious to understand whether within this clause, when we talk about the meaning of a communication need, a witness who is to give evidence in the specified proceeding will be taken to have a communication need if the quality or clarity of evidence given by the witness may be significantly diminished by the witness's ability to understand process or express information.

Beyond a language challenge, which is provided for in this clause, that is if someone is from a culturally and linguistically diverse background, this clause -

applies regardless of whether the witness's communication need is temporary, permanent or recurring; the degree of severity, the witness's communication need changes over time or due to circumstances, or the witness's communication need is caused by disability, illness, injury, trauma, or some other cause.

That final subclause provides very significant scope in the determination of whether a witness will be assessed and designated as a prescribed witness who is able to have the support of a witness intermediary.

My question to the Attorney-General is, if someone has been so traumatised by what they have been through that they have difficulty articulating what happened to them, can you confirm that, within the scope of this clause, that trauma of itself can provide the grounds for inclusion to be a prescribed witness under this provision?

We can recognise that a witness maybe prescribed because they are a child, they may have a cognitive impairment, there may be a developmental issue, but my understanding from that briefing is that this section will capture people with a specific mental health need. For people who carry within them the deep trauma and scars of child sexual abuse, I would hope that that of itself is enough to allow the judge to make an assessment that a witness can have that support. I note that in the assessment report, section 7I, the judge is not compelled on the basis of an assessment of the report to make an order if they are satisfied it is unnecessary or inappropriate to make the order or the witness does not wish the order to be made, or the making of the order would be contrary to the interests of justice. This is where, as I understand it, minister, the respect for the rights of a child come in to have a say in whether they want that witness intermediary assistance during an evidence-giving process.

For those of us who followed the royal commission and a number of its hearings and read as much as we could of the testimony and the subsequent recommendations, we recognise that this journey towards making sure that children are safe in institutions and our communities is a long way from over. While governments are progressively giving effect to the recommendations of the royal commission, in many ways there is only so much the law can do to keep children safe and it becomes a whole-of-community responsibility. I am certain that this parliament will see other legislation come before it to give effect to other aspects of the royal commission's work or to improve legislation we have already enacted.

Before I wind up I acknowledge that the Minister for Education and Training has initiated an independent inquiry into how the Department of Education responds to the risk of abuse in public education facilities, including TasTAFE. I am going to talk to the minister about this at some point this week, but I had a briefing last week. I share the concerns of survivors about how the scope of this inquiry could be narrowed where it will become forward-looking, because there is a very real risk here that if we do not make sure the independent reviewer is given the greatest possible scope to invite survivors, family and other members of school communities who may have important information to come forward about historical abuse, we run the very real risk of retraumatising people, because the royal commission did not deal with the public education system.

The royal commission's work was focused on institutions such as the Catholic Church, the Anglican Church, the Salvation Army and a number of other institutions where for periods the abuse and harm of children was rife and systemic. The royal commission did not deal with Tasmania's Department of Education, for example, and we know that there were children who were harmed by employees of the Tasmanian Education department historically. We have to make sure that those survivors or family members of victims are invited to give testimony to the independent inquiry process because unless you confront what happened historically, not only are you potentially depriving survivors of justice, but it is very difficult to map a clear safe path forward in our schools and other public educational institutions.

I know that the Minister for Education and Training feels passionately about the safety and wellbeing of children. I simply encourage him to make sure that he gives that independent reviewer, whoever they are, the greatest possible authority to conduct that review process in a way that is sensitive and rigorous, and that Tasmanians who experienced abuse in a public education setting historically are respected and invited to be heard. It will be that knowledge and testimony which will help us as Tasmanians - this parliament, the minister and the department - to make sure that our outstanding Department of Education has the most robust child-focused, trauma-informed responses in place for every child who goes through the education system in a public setting in Tasmania.

With those few words, I am very glad to say the Greens will be supporting this legislation.