Page 218 - Week 01 - Thursday, 10 February 2022
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In addition, the bill extends protections of counselling communications that are already available to sexual offence victims, to family violence offence victims. These protections include that relevant counselling communications must not be disclosed for a criminal proceeding unless the court gives leave. In granting leave, the court must be satisfied that there is a legitimate forensic purpose and that the public interest in fairness outweighs the public interest in preserving the confidentiality of the communications. The amendments in the bill will help ensure that disclosures made by family violence offence victims during the counselling process remain confidential.
As a result, the amendments will help prevent victims from being deterred from seeking professional support or from talking freely and honestly with their counsellor. These protections may also improve the safety of family violence victims by preventing an accused person from using counselling information as a means of further intimidating or humiliating the victim.
The bill also clarifies that the definition of family violence includes the harmful use of, or interference with, technology—for example, using an electronic device or social media to publish intimate images of a family member without consent. The legislative definition of family violence is relevant to applications for family violence orders under the Family Violence Act, as well as for the new aggravated offence scheme that is also introduced by this bill. By clarifying that family violence can include technology-facilitated abuse, the amendment ensures that protections such as family violence orders are available to victims of behaviour such as another family member electronically tracking their whereabouts and that these perpetrators face higher maximum penalties for their behaviour.
In addition, this bill amends the name of the offence in section 56 of the Crimes Act from “sexual relationship with child or young person under special care” to “persistent sexual abuse of child or young person under special care”. In speaking to this amendment, I would first like to specifically thank Grace Tame, who came to speak to the meeting of Attorneys-General in November 2021 and advocated for this change.
This change is being made because the term “relationship” in the name of the offence fails to recognise that a child cannot give consent to the sexual acts which must be established to make out the offence, and the term “relationship” carries connotations of “consent”. While I am sure that we all realise this upon detailed consideration, it is clear that it is not everybody’s first thought. The offence is absolutely abhorrent and allowing offenders to be described in a way that could allow the very real harm of their abuse to be minimised through the word “relationship” should end.
Renaming the offence in ACT legislation is also a move towards national consistency in the language that is used to describe child sex offences. To be clear, the elements of the offence will not be changed by this amendment and “engaging in a relationship” will remain an element of the offence, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. However, the offence will now accurately be named in a way that reflects its inherent abuse.
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