Page 431 - Week 02 - Tuesday, 20 February 2018
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This is not a new offence in the territory. Section 66 was first brought before the Assembly in 2001. The Bar Association raised a concern about this bill that is equally applicable to the existing legislation—that, on its face, it is broad. The amendments in this bill purposely keep the ACT’s existing grooming language while expanding its application beyond online conduct. The clarifying amendments I will move later today will not change that, but they will include a provision that responds directly to the concerns of the Bar Association. This government will work with the legal profession wherever possible to resolve concerns.
I also met with the President of the Bar Association regarding the amendments to section 56 of the Crimes Act. The issue here relates to special care offences. Mr Hanson earlier today gave the example of a soccer coach who is 19 and a student who is 17. I note that the special care provisions exclude relationships between people who are not more than two years apart in age. The cases that will be covered by this law are far from innocent teenage relationships. A better example of the kind of relationship criminalised by the ACT’s special care offences is where a 30-year-old foster carer engages in a sexual relationship with a 17-year-old in their care.
In 2013 the ACT government passed laws to categorically recognise that this behaviour is an abuse of trust that invalidates a young person’s consent. Since that time it has been impossible to argue that the abuse of trust was not sexual assault based on the consent of the victim. Prior to that law the prosecution had to show that a relationship of authority invalidated what was apparent consent on behalf of the victim. The debate here is about the application of that automatic presumption—that being a foster carer or a teacher or a youth group leader invalidates consent to engaging in sex on behalf of the children in their care. It is a technical point about the kinds of offences that can make up the crime of maintaining a sexual relationship with a child.
To portray this law as unfairly targeting hypothetical happy families that might result from relationships between teachers and students or coaches and their underage players is trivialising the sexual abuse of minors, contrary to the royal commission’s work and contrary to this community’s clear expectations about our treatment of young people. This legislation has been drafted in accordance with the principle that conduct which was previously legal should not become criminal. I will be moving amendments later today to provide even more certainty and clarity that we are implementing change as recommended by the royal commission.
One further amendment in this bill follows out of the royal commission. Section 34 of the Crimes (Sentencing) Act 2005 will be amended to make it explicitly clear that if an offender’s good character was the reason people trusted them with children, that good character cannot be used to mitigate a sentence. This amendment speaks for itself.
As a package, the responses to the royal commission in this bill are clearly supported by the evidence. They will ensure that police, prosecutors and judges are able to hold to account offenders responsible for the abuse of children, and they are just the beginning of our work to ensure that the important lessons and the recommendations of the royal commission are implemented here in the ACT.
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