Page 929 - Week 03 - Thursday, 28 February 2013
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oppose. On this point, we hold the contrary view to the government on how we should proceed. I believe that the proposed change breaches the fundamental right to the presumption of innocence. I will oppose this clause, and I call on other members of the Assembly to consider the impact this clause will have on human rights in the ACT. It is a clause that the human rights commissioner has expressed concern with. In fact, I believe there is a good chance that, if passed, a court will declare the law incompatible with our Human Rights Act. I will discuss this matter in detail in a moment.
Let me turn first to the parts of this bill the Greens do agree with. Regarding the sexual offence amendments, one of the key changes made in the bill is the addition of new sexual offences to the Crimes Act. The existing ACT criminal law establishes the age of consent as 16. The change proposed in this bill will extend criminality to people who have sexual contact with a person below the age of 18 who is in their special care. “Special care” essentially covers relationships where there is a significant power imbalance. These relationships are defined in the bill and cover circumstances such as a teacher at the school of a young person; a step-parent, foster carer, or legal guardian of the young person; and the employer of the young person.
This is a difficult area to legislate. This change will increase the age of consent for particular kinds of relationships. After careful reflection, I agree that this is an appropriate change, justified by the need to protect young people from a misuse of authority in relationships where there is a power imbalance. The change has been recommended for inclusion in the Model Criminal Code by the 1999 report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. It was also recommended in earlier reports, such as the final report of the New South Wales police royal commission in 1997. I note also that there were many submissions on the Model Criminal Code arguing that the potential for power imbalances in relationships is very significant and that a higher age of consent needs to apply.
Abuse of young people, and abuse within positions of trust and special care, is all too common—of course, it is something that should never occur—and I think there is a strong awareness in the community that it is something we need to take strong action against. For an unfortunate reminder of its prevalence, one just needs to look at the support groups that exist all over Australia advocating for the survivors of abuse from all manner of relationships, including with the clergy, doctors and therapists and legal guardians.
I am aware also that the ACT’s Director of Public Prosecutions has raised this issue specifically as an area needing reform, with reference to several cases in the ACT involving teachers and step-parents. I also note that other Australian jurisdictions have already introduced similar laws—including Victoria, New South Wales, South Australia, Western Australia, the Northern Territory and the commonwealth. The UK has a similar offence.
I will quickly flag that I had some concern, which I raised with Mr Corbell’s office, about the fact that the offence provides a list of positions of authority that is non-exhaustive. I note that the structure of the offence recommended by the Model
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