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Legislative Assembly for the ACT: 2018 Week 02 Hansard (Tuesday, 20 February 2018) . . Page.. 437 ..

While I acknowledge that the Bar Association and members of the opposition want this amendment to go further, the government’s bill was always intended as a reform to existing section 66, not an entirely new offence. Section 66 has been on the statute book since 2001, but it has been limited to online conduct. The bill that we are debating today removes that limitation and applies the statute to all forms of conduct and communication with a child. It does not change what sort of exposure to acts of a sexual nature is required to make out the change.

As introduced in 2001, and as will be the case with these amendments, this offence is purposely broad. Mr Hanson earlier today talked about linking this offence to intent to obtain sexual gratification or engage in sexual offences. But grooming by its very nature is about behaviours that are not sexual and do not necessarily involve sexual experiences. Grooming is about access and vulnerability. It can occur in many contexts. Watching a television show can indeed be part of a pattern of grooming. The facts and the circumstances of a case must be considered in charging and prosecuting the behaviour.

The starting point for the offence will be a charge that a person encouraged a child to commit or take part in an act of a sexual nature, or to watch someone else committing or taking part in an act of a sexual nature. These amendments require that such behaviour occurs without reasonable excuse. In the context of these provisions, reasonable excuse may include parents exercising their daily care responsibilities under the Children and Young People Act 2008. Under section 19(1) of that act a parent has the responsibility to make care decisions about education. This would obviously include sex education and permitting a child to watch certain TV shows, and also health practitioners prescribing contraceptives to young people under 16 years in accordance with their legal obligations.

Procedurally, a person accused is required to raise this defence, but the overall burden of proof remains with the prosecution. This means that if a person claims to have been innocently watching a show or trying to provide education, the prosecution will have to disprove that claim beyond a reasonable doubt. This is a fair outcome that ensures that grooming conduct can be prosecuted and that people who have a legitimate reason for exposing children to sexual content cannot be convicted.

The royal commission explicitly considered the risks of broad grooming offences being used to charge innocent conduct and found that risk to be low. Based on the existing legislation, and with this amendment, the government is confident that this change will support holding people to account for grooming behaviour while ensuring procedural fairness.

The amendments were drafted following consultation with the local legal profession. They do not change the intent or the purpose. The government is committed to working with the community to ensure that these offences do not erode an accused’s right to a fair trial. At the same time, the government will not back away from the need to act on the royal commission recommendations and to protect vulnerable children. I commend the amendment to the Assembly.

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