Page 3785 - Week 13 - Wednesday, 16 October 1991
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It is not the purpose of this amendment Bill to suggest to the Director of Public Prosecutions that all cases should be brought to trial. Where a decision is properly taken to pursue an offender in the courts, this proposed amendment to the law will overcome the legal difficulty highlighted by the High Court decision in S v. the Queen and which was further exemplified, though not on exactly the same grounds, in Podirsky v. the Queen, reported in 1990 Western Australia Reports, page 128, where the High Court's decision referred to earlier was applied.
We are aware that the National Association for the Prevention of Child Abuse and Neglect, known as NAPCAN, has been pressing for a response to the High Court's decision. There can be no justification for a delay by any legislature in rectifying this problem. Accordingly, we commend this Bill to the house, and draw members' attention to the fact that the provision has some aspects which excite the attention of jurists.
In particular, it is a criminal provision which may have limited retrospective effect. Many of us are inured to the view that no-one should be put to their trial for acts which did not constitute a criminal offence at the time they were committed. That view suffered, to some extent, during the bottom of the harbour changes to tax laws, and there has been widespread debate again in relation to war crime trials.
Putting those matters aside, I advise the house that the Bill provides for retrospective commencement back to when Part IIIA of the Crimes Act commenced, namely, 28 November 1985. This is convenient from a drafting point of view, because the definition of "particular sexual offence" in proposed section 92EA subsection (1) refers to an offence under another provision of that part. The Bill, therefore, contains a commencement clause, rather than providing that the offence applies to acts occurring, whether before or after the date of commencement.
There would be drafting difficulties, on my advice, in simply providing that the new offence applies to acts occurring "whether before or after the date of commencement". This is because the offence and the defences allowed each contain temporal elements.
I accept that there are some technicalities about this provision; but, in round terms, I am prepared to accommodate limited retrospectivity in a provision relating to an offence which in any enlightened regime would require a guilty intent, although, in point of law, not a criminal guilty intent. Acts of incest are an abomination, and I fail to see why, subject to proper discretion and guidelines of the Director of Public Prosecutions, they should not have retrospectivity for six years in the context of this Act.
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