Page 384 - Week 02 - Tuesday, 20 February 2018
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wrong. If you are going to be prosecuted as a child sex offender, the law needs to be explicit, and it is not. It cannot be based on ambiguity and shifting community expectation. It needs to make it clear.
As I said, the government has sought to fix this up. It does not even have “reasonable excuse” in the law at the moment. “Reasonable excuse” is the amendment that is going to be put in by the government. I do not think that that necessarily helps. The expanded explanatory statement tries to unpick all this. It tries to make some sort of sense of it all. And I think the fact that you have got such a verbose expanded new explanatory statement makes it clear how problematic the law is. When you need a long explanatory statement to explain what you are trying to do in this law, it probably means you have got a problem with the law. It should be clear. A reading of the law should be clear, and the explanatory statement should just provide some amplification. It should not be that the law is ambiguous, that it is open to wide interpretation and you have got to try to sort it all out with an explanatory statement.
My real concern is fundamentally that this shifts the way our legal system works. The way our legal system works is that you are innocent until proven guilty. That is the way it should work. This goes some way towards saying, “No, you’re guilty. Now you come up with an excuse. You tell us what your excuse is.” That is not the way the law should operate. It should be very clear what a crime is and what a crime is not.
I will not be supporting that clause. I will support the amendment that will be brought forward by the government, because the explanatory statement does try to unravel some of it, but it will leave the clause entirely problematic.
The final area is the retrospective application of these laws. That is a significant issue. The bill as it is written basically means that people who committed an act that was not unlawful before 1984 would now have that act criminalised. That is the way the law is set out. Again, Mr Archer, from the Bar Association raised these issues:
“The offences set out in the Bill are alarming and cannot possibly be enacted in the form in which they have been presented,” …
“Further, the amendments will have retrospective effect. Conduct that was previously legal will now be subject to criminal sanction. That outcome is intolerable in any community.”
I agree. The government is going to bring forward an amendment to try to basically add a note that says, “If it wasn’t a crime at the time, then you cannot be prosecuted.” That is good. But we should never have arrived at this situation where, 24 hours before, we are trying to provide some clarification around retrospective laws.
The example that could be used is that of a 19-year-old and a 17-year-old who were in a relationship when he was the soccer coach or she was the soccer coach. They were in a relationship that everybody knew about, everybody understood and no-one had a problem with. The way the law is written now—and they might be married with four kids—someone could knock on the door and say, “You’re a child sex offender under this law.” So I am glad that that has been amended, but we should not have arrived in this situation. We will support that amendment.
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