Page 4473 - Week 14 - Thursday, 28 November 2013
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Probably the most notable change in this bill is that it would retrospectively remove a historical limitation on the ability to prosecute certain sexual offences against children. The limitation exists for offences that occurred between 1951 and 1985.
The change in this bill will ensure that these offences can be prosecuted. This is an issue that has attracted some discussion in the media recently. It is a change I agree with, and I am quite sure that it is a change that the wider community agrees with. The change comes midway through the national inquiry into child sexual abuse. That inquiry has not only brought to light this archaic limitation on the ability to prosecute child sexual abuse in certain circumstances, but also it is likely to uncover old offences which could now be brought to criminal trial. I think it would be a serious injustice if these could not be prosecuted.
I understand that a limitation period was put in place over 50 years ago, and there is little information existing about its rationale. I think it is fair to say that whatever the thinking was at that time, modern society accepts that it is not appropriate to put a two-year limitation period on the ability to bring a prosecution for sexual offences against children. It is well understood that, unfortunately, it can take many years for these tragic crimes to manifest. Often, it only occurs when the victim is an adult.
It is important to consider the human rights dimension to this change. Of course, that is an important consideration in all criminal offences, with their serious implications for the accused. The scrutiny of bills committee provided a comprehensive analysis on this matter which I have considered. My office also discussed the matter with the Human Rights Commission, which added a helpful perspective.
On one hand there is a question raised as to whether the rights of the defendant are unreasonably affected by the retrospective removal of the limitation period. In this case I think the change is quite justifiable, reasonable and does not unreasonably limit human rights.
The change does not retrospectively criminalise behaviour; it only retrospectively removes a limitation period. In my view, issues that may arise in relation to the length of time between a prosecution and offence can be dealt with adequately by existing laws of evidence. As I said, the change is an important one for the protection of children and for ensuring justice can be done.
Regarding the change in the bill which allows serious offenders to be brought before the court for the hearing of a forensic procedure order application, I note that this issue also invites some human rights discussion. This is dealt with well in the explanatory statement, and I also point out that the new clause contains safeguards for an offender who is a child or an incapable person by allowing them to have an interview friend.
I also mention the change in this bill relating to the Criminal Code. The bill amends the default application date in chapter 2 of the Criminal Code to 1 July 2017. This is essentially because the ACT is still in the process of progressively implementing the model code. This is taking some time, partly because there is a large amount of ACT
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