Page 383 - Week 02 - Tuesday, 20 February 2018
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The title of the article this morning, and many of you will no doubt have read it, is “Anti-grooming bill still a ‘shocker’ despite government changes, ACT Bar Association says”. The particular relevant element is quoting Ken Archer, who is the president of the Bar Association. He says that it makes the bill:
… “worse than before”.
“It’s a shocker. They’ve left the drafting as it was before, which captured innocent behaviour, but added this preamble ‘without reasonable excuse’,” Mr Archer said.
“Legally it’s now up to the accused person to bring forward evidence to prove they’re not guilty of the offence. They are of the view it makes it better [but] it captures behaviour regardless of consent.”
I agree. It is going to leave significant ambiguity in the law and will potentially make what is quite innocent behaviour and normal behaviour a crime.
In this law, if a child watches a sexual act then that adult, teacher, big brother, big sister, parent or uncle, is potentially liable to 10 years in jail. If it was for the intent of sexual gratification of that adult, 100 per cent that should be a crime; they should be prosecuted. But let us put that in the law. Let us put in the law that that was the intent, because at the moment that is not there. Basically if a child sees a sexual act, now you as the parent, the teacher or the adult have to come up with an excuse, and that excuse is not defined. Then it is up to the courts, the police and the prosecutors to determine what is a reasonable excuse or not. The law is silent on what is an excuse and what is not an excuse.
I note on the example I have used of the Game of Thrones scenario that the government in its now amended explanatory statement has specified that as an area that would not be prosecuted. But that is just one example that I used. The government has sought to remedy that with the amended explanatory statement. But it should not be left for someone to be charged, to end up in the courts, to work out what that excuse is. That is our job in this place: to specify what is a crime and what is not a crime, not to leave it hanging for people to be prosecuted and then hope that their excuse meets the moral judgment of the time.
As I said, the explanatory statement has attempted to address this issue. But it says it has got to be in step with community expectations. It says:
Police discretion to charge and the additional scrutiny of whether charges should proceed in the public interest by the DPP, are critical features of the ACT criminal justice system which provide additional protection against charges being prosecuted in circumstances that are out of step with community expectations.
But that shifts all the time. Community expectations? Look at the #MeToo campaign and what has happened in Hollywood. Ask Mr Joyce what is happening on the hill. Community expectations change all the time. We should not be writing laws that can land you in jail for 10 years based on the community expectation of the time. That is
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