Page 381 - Week 02 - Tuesday, 20 February 2018
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More specifically, it has picked up on a number of the key recommendations of the committee, in particular making the offences of persistent child sexual abuse and maintaining an unlawful sexual relationship more effective, to reflect how complainants experience and remember repeated child sex abuse; expanding grooming offences to include any communication or conduct with a child undertaken with the intention of grooming the child to be involved in sexual abuse, and to cover grooming of persons other than the child, such as parents and carers; and excluding good character as a mitigating factor in sentencing for child sexual abuse offences where that good character actually in the first place facilitated the offending.
They are important elements and we support the intent. However, it needs to be done very carefully. In our consideration of the bill, and in consultation with the legal profession, we have found three areas of concern. The bill is going to be amended by the Attorney-General in response to some of those concerns. I foreshadow that I think some of those amendments do the job of fixing up the problems that have been identified. Other amendments do not, to be frank. These are serious issues. They go to human rights and they go to retrospectivity of offences. In fact the Bar Association went as far as saying that they would appeal the clause to the Supreme Court if amendments were not made. I will go through each of the elements of concern that I have.
The first, and this has been raised by the Bar Association, is the issue of maintaining a sexual relationship. The bill now allows for the prosecution of maintaining a sexual relationship, rather than having to prosecute each specific incident. We have listened to the concerns from the bar, we have looked at this issue and we have looked at it on balance with the findings of the royal commission.
The royal commission showed a number of things. The current adversarial process requires highly detailed specific memories of individual events that can then be cross-examined in an attempt to discredit the testimony as a whole, and that, as you can imagine, causes significant trauma for the witness. Secondly, the process itself can cause poor recollection, as you can imagine. This is people 30 years on, maybe, from an event trying to recall specific incidents. The royal commission went to the way that memory works. Memory does not always prove true when it comes to specific technical details: “What was the date? What was the time? What were you wearing?” I will not go through all the detail, but the royal commission does provide technical, specific evidence about memory.
Given that understanding of how children in particular process and access memory, memories of offences, and particularly of repeated offences, can be used now as a whole, based on the way the bill is structured. The bar has raised concerns about this. But I make the point, and it is an important one, that the person must not be convicted of a crime unless a crime is proved beyond reasonable doubt. That is important. This bill requires that two specific occasions must still be proved, so that remains the case—which is, I think, important—and that a jury is convinced beyond reasonable doubt. What it does mean is that a child or a child survivor is not put through the distress of recalling every single incident in what could have been a prolonged series of sexual offences. So we note the bar’s concerns but I think that with those particular
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