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Justice Miscellaneous (Royal Commission Amendments) Bill 2022

Cassy O'Connor MP  -  Thursday, 24 November 2022

Tags: Royal Commission, Justice, Legislation

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, we can all agree on the goal of making Tasmania the safest place in the country for children and young people, just as we can all agree that the state has a long way to go before we achieve that goal. This has been made clear to us through the vital work of the Commission of Inquiry, the witnesses who came forward, victims/survivors, whistleblowers, as well as the testimony of multiple state servants, some of them in very senior positions. There is a question mark over the capacity or will to protect children in some circumstances in the evidence that came before the Commission of Inquiry.

This legislation, the Justice Miscellaneous (Royal Commission Amendments) Bill 2022, has been a long time in the making. It is a recommendation made by the Royal Commission into Institutional Responses to Child Sexual Abuse back in 2016 17. We will be glad to support this bill. We recognise it is one part of a suite of legislative reforms being delivered by the Attorney-General. There are two more bills that should sit alongside this legislation: the Child Safe Standards Framework and the Reportable Conduct Scheme. It is a matter of regret that the House has not been able to deal with all those three bills in this sitting before we rise for the summer break.

The bill before us is the result of recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The bill primarily sets out to achieve six things. It removes the last remaining limitation periods in respect of child sexual abuse. It introduces an offence of penetrative sexual abuse of child or young person by person in position of authority. It introduces an offence of failure by a person in authority to protect a child from a sexual offence. It provides that the time during which the questioning or investigation of a subject is paused to facilitate the use of a witness intermediary is relevant to the reasonableness of a period of detention before bringing a person before the court.

I commend the Attorney-General on the Witness Intermediary Program and the excellent results it has achieved so far to support vulnerable victims who come before the courts.

The bill also reforms relevant tendency and coincidence provisions, including by not allowing the court to consider the possibility that the evidence may be the result of collusion, coercion or contamination when determining the probative value of this evidence. It extends the ability of audio-visual evidence to be used, which is so important to victims/survivors. And it allows for the court to use audio-visual evidence as a primary testimony. It also introduces a person being in a position of authority as an aggravating factor in sentencing.

The Greens support the removal of limitation periods, which is so important for victims because we know it can take many years to report. As we heard in the briefing yesterday - and we are thankful for the briefing, it takes on average more than 20 years for victim/survivors to be able to come forward and report.

These amendments, as we understand it, are the last remaining amendments needed to bring us into line with recommendation 30 of the Criminal Justice Report of the Royal Commission, which states:

State and territory governments should introduce legislation to remove any remaining limitation periods or any remaining immunities that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards.

During the briefing we asked if there was likely to be any attempts to contact people who had previously reported offending to Tasmania Police and who were advised that it could not be progressed to investigation and charge because limitation periods applied and had expired. I would like to test with the minister if she can advise the House whether Tasmania Police keep any records that would allow for this information to be collected and would enable contacting people who may now be able to have their case pursued. Are there any communication campaigns planned around this to let victims/survivors know they may soon be able to bring their cases forward for investigation?

The introduction of a failure to protect offence is very welcome and very much needed, particularly in light of some of the matters raised in the commission of inquiry. I go now to the closing address of the commission of inquiry from 13 September 2022 and Counsel Assisting Elizabeth Bennett in closing. She makes some very important observations and says:

Commissioners, we can see that an emerging theme this week is the significant impact on decision-making by senior leaders such as department secretaries in relation to protecting children when there is a failure to provide them with accurate and critical information, and whether or not this contributes to a culture of plausible deniability. These are serious matters, commissioners, which will require further consideration by you over the coming months, including as it relates to the individual responsibility of some.

A particular case I want to talk about is the former manager of the Ashley Youth Detention Centre, Patrick Ryan, whose matter came before the commission. Ms Bennett says in the closing address:

We explored with Mr Ryan his knowledge and role in a number of the events we explored in the course of the Ashley hearings, including information about Lester and how, after being the subject of an allegation of child sexual abuse he had been purportedly moved to a policy role, it appears he still had contact with children, including potentially the strip-searching of a child, whether there was minimisation in the understanding of or subsequent report of sexual abuse of Henry, or whether the reporting of those matters was misleading to his superiors.

It also covered the circumstances of how children were isolated or unit-bound in the response to the December 2009 roof incident, and whether this approach was contrary to the laws and policies designed to protect human rights.

Commissioners, these matters raise serious concerns about conduct, including the conduct of Mr Ryan, which you may wish to consider closely over the coming months.

Of course, Mr Deputy Speaker, that situation is salient to the legislation and the new charge of failing to protect that we are debating today.

There was also some quite shocking evidence given about the sequential failure to protect children at the Launceston General Hospital and questions over a number of senior state servants and managers, and those matters no doubt will be addressed by the commissioners in their report.

In the closing address, Counsel Assisting Bennett talked about the LGH's response to the disclosures of sexual assault from Zoe Duncan. This response was led by Dr Peter Renshaw. We heard from Dr Renshaw of the steps he did and did not take when Mr and Mrs Duncan reported their concerns that a doctor at the hospital had abused Zoe. Dr Renshaw recognised that a complaint made by Ms Duncan in May 2001 was a professional boundary violation which could have been connected with child sexual abuse. Dr Renshaw accepted that he ought to have mandatorily reported the abuse of Zoe Duncan earlier, but otherwise appeared in our submission by his demeanour and attempted contextualisation of the actions of Dr Tim, to have failed to grasp the gravity of the allegations made by Zoe Duncan. She said:

While we welcome Dr Renshaw's apology for his speculation about whether Zoe Duncan was abused, commissioners, you may find his evidence demonstrated a lack of insight into his role and the impact of his comments that is astonishing of a person who has held a senior role in a hospital for 35 years.

In the context of Dr Renshaw's evidence, it is open to question the LGH's ability to establish and embed a culture of reporting concerns.

That is exactly why we need structural law reform that brings in a child-safe framework, a reportable conduct scheme and these two key new charges, but particularly in this context, the failure to protect events.

Then we have the talk of a lack of transparency accountability in the response by Dr Renshaw, which eroded staff and community trust in the LGH's response. We heard in evidence, and it was again highlighted by Counsel Assisting Bennett, that Dr Renshaw was not aware of any marked changes to systems and processes at the LGH in response to Mr Griffin's offending - and the House does not need reminding, but for the record we are talking about paedophile nurse James Griffin - could not identify how he could now be satisfied as to the safety of children at the hospital.

While he did not embrace the finding, Dr Renshaw accepted it was open to the commission to find that the leadership at the hospital was dysfunctional following the death of Griffin. She says:

Commissioners, the two health days raised serious matters in relation to the conduct of some individuals, which you may wish to carefully consider over the coming months.

In her contribution on the closing address, president, Commissioner Marcia Neave, said this:

The commission has heard horrifying evidence about failures in existing systems and cultures. While some of these failures occurred many years ago, others are very recent. Many contemporary failures have been shown to have echoes of or direct links to past failings. Problems in systems and cultures have included - and this is not a comprehensive list - some institutional leaders showing limited concern and curiosity about the risks of abuse, including failing to ask questions about warning signs of abuse; limited understanding of child sexual abuse and harmful sexual behaviours; flawed systems which discourage children, young people, their families and whistleblowers from coming forward; failures to hear the voices of people who have already had difficulty in being heard, particularly Aboriginal people whose children are over represented in Tasmanian children.

A final quote from Commissioner Neave:

We have heard evidence that responsibility for past failings has not been solely the responsibility of one person, one department or one government. Rather, we have heard that collectively Tasmanian governments, past and present, have failed to adequately prioritise the safety of children and the wellbeing of victims/survivors.

The commission of inquiry will hand down its final report and recommendations in May next year. However, the bill we are debating today is a very important part of that suite of legislative, policy and funding reforms that are required to achieve that goal of making Tasmania the safest place in Australia for children and young people, as it should be.

The failure to protect events reflects recommendation 36 of the Criminal Justice Report of the royal commission that states:


36. State and territory governments should introduce legislation to create a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution as follows:

a. The offence should apply where:

i. an adult person knows that there is a substantial risk that another adult person associated with the institution will commit a sexual offence against:

• a child under 16

• a child of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child

ii. the person has the power or responsibility to reduce or remove the risk

iii. the person negligently fails to reduce or remove the risk.

b. The offence should not be able to be committed by individual foster carers or kinship carers.

c. Relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship care services should be included, but individual foster carers and kinship carers should not be included. Facilities and services provided by religious institutions, and any service or functions performed by persons in religious ministry, should be included

d. State and territory governments should consider the Victorian offence in section 49C of the Crimes Act 1958 (Vic) as a useful precedent, with an extension to include children of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child.

The bill also establishes a new offence of penetrative sexual abuse of a child or young person by a person in position of authority. The Royal Commission into Institutional Responses to Child Sexual Abuse had three key recommendations in relation to this offence and this bill captures two of those three recommendations. The 27th recommendation of the Criminal Justice report was state and territory governments should review any position of authority offences applying in circumstances where the victim is 16 or 17 years of age and the offender is in a position of authority however described in relation to the victim. If the offences require more that the existence of the relationship of authority, for example, that it be abused or exercised, states and territories should introduce legislation to amend the offences so that the existence of the relationship is sufficient.

The 28th recommendation of the report is state and territory governments should review any provisions allowing consent to be negatived in the event of sexual contact between a victim of 16 or 17 years of age and an offender who is in a position of authority however described in relation to a victim. If the provisions require more than the existence of the relationship of authority, for example, that it be abused or exercised, state and territory governments should introduce legislation to amend the provisions so that the existence of the relationship is sufficient. These two recommendations appear to covered by this bill. Our concern is that recommendation 29 is not addressed in this bill. Recommendation 29 of the Criminal Justice report reads:

29. If there is a concern that one or more categories of persons in a position of authority (however described) may be too broad and may catch sexual contact which should not be criminalised when it is engaged in by such persons with children above the age of consent, state and territory governments could consider introducing legislation to establish defences such as a similar-age consent defence. [OK]

Instead of similar-age provisions the only defence to this new offence in the bill we are debating today is marriage. We argue marriage is not an appropriate contemporary benchmark for a legitimate relationship. This offence establishes that:

Any person who is 18 years of age or older is guilty of a crime if that person is in a position of authority in relation to a child, any person under the age of 18, and that person has sexual intercourse with that child. (TBC)

It is presumed that a person in these circumstances cannot give consent. A charge under this offence is penetrative sexual abuse of a child or a young person by a person in a position of authority. One of the matters that makes this distinct from other sexual offences towards children or young people is that it is not subject to the age gap provision contained in section 1433 of the Criminal Code that sets out:

(a) That person was of or above the age of 15 years and the accused person was not more than five years older than that person; or

(b) that person was of or above the age of 12 years and the accused person was not more than three years older than that person. (TBC)

In this offence it is a strict assessment of whether one party is over the age of 18 and one party is under the age of 18. As far as we can determine they could be merely a day apart in age. It would be helpful if you could confirm this, Attorney-General.

Another key element of this offence is that a person has to be in a position of authority. The definition of a person in a position of authority is a non-exhaustive list that includes, for example, a teacher/pupil relationship; a parent or a parent's partner; a person who provides religious, sporting, musical or any other instruction to the person; a religious official or spiritual leader in relation to a group attended by the person; a health or social worker providing services to the person; an employer or person in position of authority with respect to the employment conditions or status of a person. It is our understanding that this offence means that if any of this non-exhaustive list applies and one party is over the age of 18 and the other is below the age of 18, there is no ability to give consent for the purposes of this offence.

Finally, the only defence provided for is if the people are married. Attorney-General, we have several concerns we ask you to address. We are concerned that two people of a similar age, perhaps only one day apart in age, could be deemed unable to have a consensual sexual relationship on the grounds of, for example, one of them is tutoring the other, one of them is a manager at McDonalds and the other works there, one of them is a coach for a similar-ages sports team. It is our understanding that any of these relationships between an 18 and 17 year old could see the 18 year old convicted of an offence that essentially labels them a pedophile and rapist. Can you confirm this?

I would also like to address the defence of marriage. Our understanding that this is here to prevent the criminalisation of legitimate relationships. I have to say, this is an antiquated measure of the legitimacy of relationships, even though we know under the Relationships Act a de facto relationship has the same standing as a traditional marriage. We do have some questions about this. Take the example of a 17- and an 18 year old in a sexual relationship where one of them is a tutor or a manager at a fast food venue where they both work. Attorney General, can you confirm, if they are married, the 18 year old is safe from prosecution, but if they are not married they could be charged and convicted of penetrative sexual abuse of a child or young person by a person in a position of authority, essentially labelling them a paedophile and rapist for the rest of their life and they would have no avenue of defence open to them? The defence of marriage suggests there is an acknowledgement that legitimate relationships can exist in these circumstances. The problem is marriage is not an effective or appropriate measure of legitimacy of a sexual relationship.

During our briefing it was put to us the prosecutors would be unlikely to bring charges in certain situations. Attorney-General, do you believe that it is reasonable or safe for such extreme discretion to be provided to prosecutors? Surely you do not believe it is okay for people who are not engaging in unethical conduct to be potentially guilty of very serious offences under the criminal code, and for the only safeguard that prevents them from being convicted and being labelled as a paedophile and rapist, no doubt causing significant damage to them for the rest of their lives, is to be left to the whim of prosecutors?

The reason these sorts of discretions are not good enough is that however highly someone might think of the people who wield them, there is no guarantee that over the next 5, 10, or 15 years no-one will ever make the wrong call. That is why it is so important that we do get the letter of the law right. This being the case, why has a similar-age defence not been provided, as is recommended by recommendation 29 of the Criminal Justice Report, and which exists in other similar criminal code offences.

I can indicate, Mr Deputy Speaker, that contingent on the Attorney-General's answers, we do not have any amendments for this bill, and do not necessarily see the need to go into committee, but we would like to have some clarity on that specific legal question and circumstance that we have raised.

In closing, I thank the officers from the department and Ms Archer's office who provided the briefing yesterday. It was very helpful, and I know it was all done at short notice but that is the way it is on a last sitting week. I also acknowledge that we can disagree on some things or even many things on any given day, Ms Archer, but I commend you and the people who you are working with, people like Amber, who have been critical in making sure that we bring legislation into this place that reflects the recommendations of the royal commission, and equally importantly puts in place the legal structures and the legal frameworks to keep children safe.