ACT Introduces Legislation Responding to Royal Commission Into Child Sexual Abuse

Friday 1 March 2019 @ 1.20 p.m. | Crime | Legal Research

On 21 February 2019, the Royal Commission Criminal Justice Legislation Amendment Bill 2019  (the Bill) was presented in the ACT Legislative Assembly by the Attorney-General, Gordon Ramsay MLA. The Bill is part of the ACT Government's official response to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). According to the Attorney-General, the Bill "makes a number of substantive and positive changes to the ACT legislation, following the Royal Commission into Institutional Responses to Child Sexual Abuse", and is the third bill to implement criminal justice recommendations from the royal commission. It continues the establishment of a "legal framework for the protection of people, primarily children, from sexual abuse". The Bill implements eight recommendations from the Royal Commission. The key policy objectives of the Bill are described in the Explanatory Statement to the Bill as being:

  • to implement a number of recommendations made by the Royal Commission in its Criminal Justice Report; and
  • to make related amendments to the mandatory reporting and reportable conduct schemes to enhance the protection of children from abuse more broadly.

About the Royal Commission

The Royal Commission was established in January 2013 by the Commonwealth Government to investigate institutions that have failed to protect children or respond to allegations of child sexual abuse. The Royal Commission showed that countless children have been sexually abused in many institutions in Australia, and that society’s institutions have failed to protect them and hold perpetrators to account. In presenting the Bill, the Attorney-General stated:

"We must acknowledge our collective failures to protect children in the past and take responsibility for protecting them in the future. Today’s Bill is an acknowledgment of our responsibility and it represents our ongoing
commitment to taking action."

The ACT Government has already implemented a number of recommendations from the royal commission, some of which were "non-legislative" and some "legislative". The ACT Legislative Assembly has previously passed the Crimes Legislation Amendment Bill in February 2018 and the Royal Commission Criminal Justice Legislation Amendment Bill in December 2018. This Bill will be the third legislative implementation of the royal commission’s criminal justice recommendations and will be followed by further reforms both through future Bills and non-legislative reforms.

The Royal Commission Recommendations Addressed 

According to the Explanatory Statement the Bill will address the following recommendations of the Royal Commission:

  • Recommendation 33 which recommends the creation of a new offence of failure to report child sexual abuse;
  • Recommendation 34 which reommends amendments to ensure reports of child sexual abuse made through the mandatory reporting and reportable conduct schemes are referred to police, and to avoid duplication of reporting under these schemes and the failure to report offence;
  • Recommendation 35 which recommends the application of the failure to report offence to information disclosed in, or in connection with, a religious confession;
  • Recommendation 7.3(e) which recommends amendment of mandatory reporting legislation to include people in religious ministry as mandated reporters;
  • Recommendation 7.4 which recommends the amendment of mandatory reporting legislation so that religious ministers are not exempt from making reports about child abuse disclosures made during confession;
  • Recommendation 30 which recommends the removal of any remaining limitation periods or immunity for child sexual offences;
  • Recommendation 78 which recommends that special measures available to witnesses in proceedings are extended to victims making victim impact statements; and
  • Recommendation 83 which recommends the repeal of the presumption that a male under 14 years is "incapable" of having sexual intercourse.

Key Measures in the Bill

The key measures in the Bill as outlined in the Explanatory Statement are:

  • The addition of ministers of religion to the list of mandated reporters contained in the Children and Young People Act 2008 (ACT) section 356(2);

As indicated by the Attorney-General in his presentation speech, this measure requires ministers of religion, religious leaders and members of the clergy to report physical and sexual abuse to child and youth protective services. The amendments are said to recognise that "ministers of religion are likely to be the recipients of information relating both to the sexual and physical abuse of children." The new failure to report offence and the new obligations under the mandatory reporting scheme are to apply to information disclosed in the confessional seal, which recognises the primary importance of protecting children’s safety.

  • Creation of a new offence in the Crimes Act 1900 (ACT) of  ". . . failure to report a sexual offence committed against a child";

A new section 66AA creates a new offence for failing to report child sexual abuse to a police officer and implements recommendations 33 and 35 of the Royal Commission, taking into consideration the advice on the implementation of these recommendations in the Analysis Report provided by The Hon. Justice Julie Dodds-Streeton. Essentially, this reform makes clear that all adults have a duty to report child sexual abuse to the police. 

  • Amendment of the Crimes Act 1900 (ACT) to remove the presumption that, prior to 1985, a male under 14 years was "incapable" of having sexual intercourse;

This measure retrospectively repeals an outdated and anachronistic common-law presumption that a male under 14 years was incapable of sexual intercourse. This presumption was abolished in the ACT in 1985, but it was not abolished retrospectively, with the effect that there is a potential to cause real injustice to a victim. Removing the presumption facilitates access to justice for historic victims of child sexual abuse who were abused by male perpetrators under the age of 14.

  • Retrospective amendment of the Crimes Act 1900 (ACT) section 70 ;

The Bill will retrospectively amend section 70 to rectify a technical inconsistency in the availability of alternative verdicts for child sexual abuse.

  • Amendment of the Crimes (Sentencing) Act 2005 (ACT) to extend the special measures available to witnesses in proceedings, to a person making a victim impact statement;

The Bill proposes to amend the Crimes (Sentencing) Act 2005 (ACT) to implement recommendation 78 of the Royal Commission, that the special measures available to witnesses in proceedings are extended to victims making victim impact statements. Further, the Crimes (Sentencing) Act 2005 (ACT) section 52 currently allows a victim impact statement to be read by audiovisual link if  the maker of the statement was eligible to give evidence in the proceeding to which the statement relates by audiovisual link under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMPA). The Bill extends the application of the EMPA to victim impact statements to give effect to the Royal Commission recommendation.

  • Amendment of the Ombudsman Act 1989 (ACT) to clarify the application of the reportable conduct scheme to information disclosed in a religious confession; and minor technical amendments 

The proposed amendments to the Ombudsman Act 1989 align with the new failure to report offence and the mandatory reporting scheme. In particular, the proposed amendments seek to clarify the extent to which information disclosed in a religious confession must be reported under the Reportable Conduct Scheme. This part also makes some minor amendments to clarify definitions in the Reportable Conduct Scheme that apply to religious bodies.

In his presentation speech the Attorney-General indicates that overall in the view of the ACT Government:

". . . this bill will improve the way society protects children from child sexual abuse. It will enhance the effectiveness of the ACT’s justice system in holding perpetrators accountable and it will improve access to justice for victims. It does this by turning there commendations of the royal commission into concrete changes in our legislation." 

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