Page 382 - Week 02 - Tuesday, 20 February 2018
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requirements, that two cases have to be proved before a jury beyond reasonable doubt, it is reasonable and it will provide some safeguards for the trauma that is revisited on the victim.
I will go to the issue of grooming. This is the one that I retain serious concerns about. The commission recommended:
To the extent they do not already have a broad grooming offence, each state and territory government should introduce legislation to amend its criminal legislation to adopt a broad grooming offence …
I support that intent—no question. Crucially, though, the report continues that the conduct in the offence must be:
… undertaken with the intention of grooming the child to be involved in a sexual offence.
That is very important. That is what this is all about:
… with the intention of grooming the child to be involved in a sexual offence.
However, the bill that has been drafted omits that. The clause that I have concerns about does not have the phrase “with the intention of grooming”. It is a very important and serious omission that makes, in my view and that of the Bar Association, this particular clause unworkable.
It might seem obvious that that was intended. We might say, “Clearly that is the case; that is what we meant.” But that is not the way we draft laws. You do not do it based on good intentions. It is not good enough to assume that that is the way the legislation will be read or be interpreted. In fact the courts may then say that if those words were deliberately omitted it may send a very different signal. They may think they have been omitted intentionally. That could lead to a series of outcomes that are not the intent of what we are trying to do here and not in the interests of justice.
The Bar Association has created a list of actions that would fall under this offence as it is currently drafted, for example, sex education, because you might show images of people having sex. There is nothing in this bill that says “with the intention of grooming”. So just showing those images could, as this bill has been drafted, lead to a teacher being charged with an offence under this act which carries a 10-year penalty. That is not the intent of the government, obviously. The other example I have used is a parent who allows their child to watch Game of Thrones. That is obviously not the intent of this legislation, but that is the way it is written and that is what this bill would allow.
The government, in an attempt to remedy this, is going to be moving an amendment to say that it is okay if you have got a reasonable excuse. But it does not actually have an amendment, as I wanted to see and others wanted to see, which makes it very clear that it must be for the purposes of grooming. It has not done that. What it has done is to say, “If you’ve got a reasonable excuse, don’t worry about.” That is manifestly inadequate. I will read from the Canberra Times today what the bar has got to say.
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