Legislative Assembly for the ACT: 2018 Week 06 Hansard (Thursday, 7 June 2018) . . Page.. 2167 ..
As failing to register is a criminal offence, these requirements have instead become an additional barrier to sex workers feeling safe and comfortable in accessing health and outreach services. Removing the registration requirements for sole operators will improve social inclusion for sex workers. These amendments will also uphold the government’s commitment to reducing red tape and remove regulatory burdens on sole operators.
Another key amendment in the bill is the amendment to change the offence of causing a child to provide commercial sexual services under section 20 of the act to absolute liability offences, no matter the age of the child. Currently, section 20 distinguishes between children over and under the age of 12. The offence against children over the age of 12 is currently a strict liability offence, whereas the offence relating to children under 12 is an absolute liability offence. The current strict liability status of the offence relating to children aged 12 years and over means that a defendant charged under this section could use the “mistake of fact” defence under section 36 of the Criminal Code 2002 to claim that they had a reasonable but mistaken belief that the child in question was 18 years old or over. This defence is not available where absolute liability applies to the offence.
A further defence currently exists under section 22 of the act. This section provides that it is a defence to an offence under section 20 if it is established that the defendant took reasonable steps to ascertain the age of the child concerned and believed on reasonable grounds that the child was 18 years old or over. This defence currently applies in respect of children both under 12 years and children who are 12 years and over.
The bill will amend section 20 of the act so that absolute liability will apply to an offence under that section regardless of the age of the child or young person. This will mean that the mistake of fact defence under the Criminal Code will not be available to someone who allows an underage person to provide commercial sexual services, regardless of the age of the young person. However, the defence currently under section 22 of the act will continue to apply to both offences under section 20, as it does now.
The practical effect of this change is that a defendant charged with the offence of causing, permitting, offering or procuring a child aged 12 years or over to provide commercial sexual services will no longer be able to rely on mistake of fact but could still rely on the defence in section 22 of the act of taking reasonable steps and reasonably believing that the child was 18 or over. “Reasonable steps” would be determined by the court in the case of a prosecution but may include, for example, sighting a drivers licence or other proof of age document that identified the child in question to be over the age of 18.
Under our Human Rights Act 2004, every child has the right to protection without distinction or discrimination of any kind. By changing the offence relating to children aged 12 years and over to an absolute liability offence, children of all ages are better protected from sexual exploitation.