Late last night, the parliament of NSW passed one of the most comprehensive criminal justice reform packages in state history. The state’s attorney general Mark Speakman introduced the legislation designed to crackdown on child sexual predators into state parliament on June 6.
The Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 was the Berejiklian government’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Established in 2013, the inquiry into the sexual abuse of children in Australian institutions tabled its final report in December last year. The commission made 409 recommendations aimed at improving institutional responses to child sexual abuse.
The legislation “makes a suite of reforms, including new offences, improved offences and procedural amendments,” Mr Speakman explained during the second reading speech on the reform bill. He added that “many are based on specific recommendations of the Royal Commission.”
Along with creating new offences, the Child Sexual Abuse Bill also restructures the sexual offences contained in division 10 of the Crimes Act 1900.
However, a last minute Greens amendment that would have ensured that priests and other members of the clergy had to report any information regarding cases of child sexual abuse obtained in their professional capacity was knocked back.
The new offences
The bill inserts section 43B into the Crimes Act, which has created the new offence of failing to reduce or remove a risk of a child becoming a victim of child abuse. This offence applies to adults performing child-related work, who knowingly fail to report another adult who poses a risk.
The maximum penalty for this new offence is two years imprisonment. Child-related work is defined in the Child Protection (Working with Children) Act 2012. And it includes child protection services, educational institutions and religious organisations.
Another key offence the bill creates is failing to report a child abuse offence. Contained in the new section 316A of the Crimes Act, this law requires all adults to report information to police if they know, believe or reasonably ought to know that a child is being abused.
An individual who fails to report such information will be liable to up to two years imprisonment. And if it’s found the individual accepted a benefit in return for keeping quiet about an incident of child abuse, they can be sent away for up to five years.
This offence covers both serious physical abuse, as well as sexual abuse.
The seal of confession remains
NSW Greens MLC David Shoebridge has condemned the state government and opposition for not supporting an amendment to the legislation that would have removed the special protections from priests and other members of the clergy who fail to report incidents of child sexual abuse.
The Greens amendment would have added two subsections to section 316A that specified child abuse information obtained by clergy members in their professional capacity must be reported to police and that prior approval didn’t have to be sought to prosecute clergy members for failing to do so.
Mr Speakman claimed during his introductory speech that the offence of failing to report child abuse does apply to clergy members. However, section 127 of the Evidence Act, which stipulates that clergy members are not required to report information that’s divulged during confessions still stands.
“Abolishing the sanctity of the confessional is important to send an unambiguous message that no religion will be put before the safety of children,” Mr Shoebridge said. “This was a missed opportunity to implement one of the most symbolic recommendations from the Royal Commission.”
Indeed, just a few days ago, Father Michael Whelan, the parish priest at St Patrick’s Church Hill in Sydney, told the ABC that if state laws required Catholic priests to report on child sex abuse information disclosed during confession, they’d rather go to prison than do so.
However, Mr Shoebridge did welcome one last minute amendment to the bill that now requires the NSW Director of Public Prosecutions to decide whether a member of the clergy will be prosecuted for concealment, rather than the attorney general as originally recommended.
Broadening the reach
But while the chance to act on the Royal Commission’s recommendation to require child sexual abuse confessions be reported has been lost, more substantial improvements to the state’s child abuse laws were passed.
Section 66EA of the Crimes Act has been amended to more clearly define the offence of persistent sexual abuse of a child. The maximum penalty for the offence that involves an adult who engages in two or more sexual acts with a child under the age of 16 has been increased to life imprisonment.
The offence of grooming a child, under section 66EB(3) of the Act, has been broadened, so it now includes offering a child material or financial benefit in order to engage in sexual activity. Prior to the amendment, the offence only applied to offering intoxicating substances to a child or providing them with indecent material.
And the legislation also creates another new offence, that of grooming the parents or carers of a child. Under section 66EC, benefiting an adult in order to gain access to a child can see an offender imprisoned for six years in the case of a child under 14, or five years when the child is 14 or 15.
Sentencing procedural changes
The bill has amended section 21A(6) of the Crimes (Sentencing Procedure) Act 1999, so that in the case of historical child sexual abuse, an offender’s prior good behaviour cannot be taken into account as a mitigating factor when determining a sentence.
While section 25A of the Sentencing Procedure Act has also been amended, so that a court must sentence an offender in accordance with present day sentencing practices, rather than those that were followed at the time the offending.
The bill has retrospectively revoked a time limit previously set out in section 78 of the Crimes Act. This provided that certain sexual offences perpetrated against a 14 or 15-year-old had to be reported within 12 months.
This section of the Act was repealed in 1992, which effectively abolished the limitation from that time onwards, but it didn’t do so for offences carried out before then. This meant that until now the time limitation has prevented individuals from being prosecuted for offences perpetrated in the past.
And section 293A has been inserted into the Criminal Procedure Act 1986, which now allows trial judges to provide juries with educative information outlining that experience shows it’s common for inconsistencies to occur when people recount sexual offences against them.
New defences and exceptions
The legislation has also created a number of reforms with the aim of reducing the criminalisation of children.
Section 80AG has been inserted into the Crimes Act to provide a similar age defence, which protects children from prosecution for their sexual behaviour, when a voluntary sexual act involves an individual of 14 years or older and another who is no more than two years older than them.
And a sexting provision has also been made to the Act, under new section 91HAA, that allows for an individual under the age of 18 to avoid prosecution for being in possession of material the content of which seems reasonable due to the nature of the relationship of those involved.
The Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 passed through both houses of parliament on Wednesday evening, and the reforms will be reviewed five years after they’ve been operating to ensure they’re meeting their objectives.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.