By Paul Gregoire and Ugur Nedim
A range of tough new laws to combat child sexual abuse in NSW came into effect on 1 December, which complete one of the most comprehensive overhauls of the state’s criminal laws in history. The recently enacted laws follow a number other child sex reforms which commenced in late August.
Passed by both houses on 20 June this year, the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 provided an overhaul of child sexual abuse laws in response to the 409 recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The five year long inquiry into the sexual abuse of children in Australian institutions tabled its final report in December last year. The commissioners were told about 3,489 institutions across the country where child sexual abuse had occurred.
“The NSW government is putting the safety of children front and centre and fixing shortcomings in the law identified by the Royal Commission,” NSW attorney general Mark Speakman said in a media release on the first of this month.
However, while the Liberal and Nationals government’s changes to the state’s criminal laws have reflected the majority of the recommendations made by the Royal Commission, the reforms have fallen short of requiring priests to report child sexual abuse cases revealed during confession.
The recent changes to the Crimes Act 1900 (the Act) include the broadening of the offence of child grooming under section 66EB(3), so that it’s now a crime to offer a child material or financial benefit to engage in sexual activity, whereas this had only applied to intoxicating substances or indecent material.
Newly inserted section 66EC of the Act creates the new offence of grooming the parent or carer of a child with the intention of engaging in sexual activity by offering financial or other material benefits. This new offence is punishable by up to 6 years imprisonment.
The offence of persistent sexual abuse of a child, under section 66EA of the Act, has been strengthened, so it now applies to an adult who engages in two or more unlawful sexual acts with a person under 16. And the maximum penalty for this offence has increased to life imprisonment.
New section 293 of the Criminal Procedure Act 1986 will allow a judge to explain to a jury that past evidence shows that due to trauma caused to child abuse victims it’s common for inconsistencies to occur when a person is recalling sexual offences that have been perpetrated upon them.
“Previously courts often required significant details about each individual incident, which could be difficult for victims to recall,” NSW attorney general Mark Speakman explained, “particularly when the incidents occurred many years ago and were persistent.”
And an amendment has been made to section 21A(6) of the Crimes (Sentencing Procedure) Act 1999, so that in historical child sexual abuse cases, an offender’s prior good behaviour cannot be a mitigating factor in sentencing if that behaviour assisted them in perpetrating the crime.
Protections for children
A similar age defence for teenagers is contained under new section 80AG of the Act. It provides that teens over the age of 14 cannot be prosecuted for their sexual behaviour with another teenager whose difference in age is no more than two years.
While a new sexting provision has been created under section 91HAA of the Act, which provides that a person under 18 does not commit a child abuse material crime if the nature of the material in their possession seems reasonable due to the nature of the relationship of those involved.
As the attorney general pointed out in the second reading speech of the amendment bill, some offences have been renamed to address the outdated use of the term “indecency”. Indecent assault is now referred to as sexual touching, while an act of indecency has become a sexual act.
And the new offence of sexual touching of a young person between 16 and 18 under special care is contained in section 73A of the Act. It can see individuals such as teachers and health care professionals imprisoned for up to 4 years in the case of a 16-year-old and 2 years for a 17-year-old.
Earlier enacted laws
A number of other new child sexual abuse laws came into force on 31 August. These included the failure to report offence, under section 316A of the Act. This law requires all adults to report child sexual abuse and failing to do so can lead to prison time of 2 years.
Section 43B of the Act contains the new failure to protect offence. It applies to individuals carrying out child-related work, who are aware of a child abuse risk and have to power to do something about it. If a person fails to reduce or remove this risk, they can be gaoled for up to 2 years.
And section 25AA was inserted into the Sentencing Procedure Act. It stipulates that for an historical child sex crime an offender must be sentenced under current laws and not those in place at the time the offence. As well, the court must consider the trauma sexual abuse has on children.
The seal of confession remains
While the majority of the Royal Commission’s recommendations are reflected in the suite of new laws, the Berejiklian government failed to deliver on one of the key recommendations, which was that priests be required to report on any child sexual abuse information divulged during confession.
The Royal Commission heard evidence that related to 4,444 alleged incidents of child sexual abuse involving 93 Catholic Church authorities over the period 1980 to 2015. During the six decades since 1950, 7 percent of Australian Catholic priests were accused of abusing children.
Currently, under section 127 of the Evidence Act 1995, members of the clergy are entitled to refuse to disclose any information they’ve heard during a confession. A NSW Greens amendment to the child sex abuse bill that would have removed this provision in regard to child abuse was voted down.
The NSW government said in June that the issue over reporting confessional information should be dealt with at the federal level. This is despite South Australia now having such a law in place and the ACT having passed this law, while the Tasmanian government is currently considering it as well.