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Statutes Amendment (Attorney-General’s Portfolio) (No 2) Bill – Committee Stage & Third Reading

In committee.

Clause 1.

The Hon. M.C. PARNELL: I did not make a contribution on the second reading because I thought I would put some remarks in relation to this bill on the record at clause 1. At the outset I am going to say that I am unhappy with how this bill and a number of others have been dealt with. They are complicated bills but we get amendments late in the piece, and it seems now that invariably key stakeholders have not been consulted. It is a really poor way to legislate.

The Hon. Andrew McLachlan read onto the record some observations of the Bar Association, and they were talking about lazy prosecutors using this section 50 when, according to the Bar Association, they should have more rigorously used individual, specified offences rather than, if you like, a pattern-of-behaviour type of offence. However, I do not want to let the government off the hook with this approach, and I think this is probably the third criminal justice bill we have had where, for whatever reason—and I will explore these reasons later—the government comes in like Chicken Little saying, ‘The sky is falling, the sky is falling,’ and blackmails the Legislative Council, saying, ‘If you don’t support these amendments today this bad thing will happen in the future.’ It is a poor way to legislate, and it treats the Legislative Council very poorly.

However, then we have to reflect and ask, ‘Did the government have no choice? Was there nothing they could have done about it?’ That is when we start doing the old, ‘What did they know, when did they know it, and what did they do about it?’ As we saw the day before yesterday, when we were debating the fate of a 17-year-old boy, we discovered that no-one was consulted, that the submissions came in late. Then, part of my questioning of the government in relation to that is to put them to the test: do we really need to do this now? Is there a plan B? Is there an alternative way of approaching it that allows the parliament to do its job properly and to properly consider the legislation? Is there a plan B?

I was very grateful this morning to spend half an hour with the Director of Public Prosecutions, Mr Adam Kimber. I talked this issue through with him, and my first question was about a plan B. He pointed out, as the minister has, that there are three pending cases, all of which could be resolved in a potentially unsatisfactory manner if the government’s second set of amendments are not passed. So, my question to the DPP was, ‘If the first of these is next week on 24 October, can’t you just put that off?

Probably within a few seconds of asking the question I think I knew the answer: that it is not really appropriate for the Director of Public Prosecutions to be going to a judge and saying, ‘Judge, just hold this, will you, because we think the Legislative Council is about to change the law that’s going to ensure a harsher penalty on this defendant.’ It would probably be challenged successfully by the defence if they were to try to do that. The next question was, ‘Okay, that’s one. What about the other two?’ We discovered that they are listed for mid-October, so there would be a possibility for us to have a bit more time to scrutinise this bill properly here, from stakeholders.

However, then, as the DPP points out, if you were a defence counsel for one of these mid-November cases, you would be seeking to bring them forward to make sure that they were dealt with before the parliament messed with—to use the vernacular—the sentencing rules. So, that puts us in a difficult position, and we have to weigh up the criticisms that I and the Hon. Andrew McLachlan have delivered about the process. I will point out that this Chiro case was apparently some six weeks ago. Six weeks is a reasonable amount of time. I understand that it can take time for a Solicitor-General or whoever else to give advice. We know the wheels move slowly, but at the tail end of this process is the poor old Legislative Council that gets one or two days to think about the implications, when other organs of government have a month and a half to deal with it.

I come back to the question of whether we allow our disappointment—our outrage, if you like, at the poor process—to prevail over what the minister has put to us, which is whether we can, in good conscience, risk the outcome of potentially outrageously low sentences for serious offending. So, those are the two things we have to weigh up. The material that the minister read onto the record is incredibly complicated; it is detailed. As a lawyer, I pretty well understand most of it: that in the criminal law system you normally say, ‘This person did this on this event in this way,’ and you have these very specific offences.

However, you do not have to think too hard: we are talking about children and people who are traumatised beyond what many of us can imagine, and often the detail just is not there. It would not just be young children: I think the Bar Association suggested that mainly young children is why you have this offence of persistent sexual abuse of a child. I would not think that it is limited to young children; I think all children suffering the sort of abuse we are talking about would struggle to identify days and times and which bad thing happened on which day.

I understand that the previous or current version of section 50 makes sense. Whether the Bar Association is correct in that it is now the offence of choice, and that, as the Bar suggests, it is laziness on the part of the prosecutors, I do not know. I still think that, if you can, the best way to proceed is with highly identifiable offences.

As the minister has pointed out, if the offence that the person has been convicted of is one of persistent sexual abuse of a child and if the jury has not been asked—and I get why they would not be asked, because they have not needed to be asked until the Chiro case; now it appears they have to be asked—’Jury, which bits of this have you relied on to convict? Was it kissing, was it touching or was it something far more awful?’ Not that they are not bad—they are bad, they are illegal. As we have all accepted, there is a gradation of seriousness of these offences.

For me, the idea that, if the judge has not asked the jury that question, and the High Court has now suggested they should have, it is too late to bring the jury back; you cannot do that. Ultimately, I think this idea of sentencing the defendant in the best possible light might mean that some pretty, whilst still illegal, minor conduct results in a very light sentence when in fact there is some awful conduct, which in fact the jury may have relied on, which deserves a far more significant sentence.

The next line of inquiry—and I explored this with the DPP—is, in the criminal justice system, we tend to differentiate the finder of fact and then there is the finder of law and the sentencing body. But it would be wrong to suggest that judges do not do both jobs—they do. Not every case has a jury. Judges find facts as well as apply the law. I do not think the judges are incapable of determining which elements of behaviour should be taken into account in terms of the sentence.

They have been in the same court as the jurors. They have heard all the same evidence. Whilst they do not necessarily need to second-guess the jury and the judge saying, ‘I reckon the jury decided that it wasn’t the kissing, it wasn’t this, it was something else,’ they do not necessarily need to do that, but I am happy that the judge has heard all the evidence, the judge knows what the serious allegations were and what weight might be appropriate to attach to those.

When we put all that into the mix, whilst I am still very unhappy with the way the government has gone about this and the fact that it has happened to us three times now in two weeks with different bills, whilst I am unhappy with what they have done, the conscience that the minister urged us to rely on does prevail in this case for me.

It is a very longwinded way of saying that the Greens, whilst we are reluctant to curtail proper democratic processes and proper consultation with stakeholders, these are very serious matters. I would struggle if we stood on principle, insisted on proper process and a bad outcome resulted in these three cases. That is my way of informing the chamber that we will be supporting the government amendments, but we are not happy about the circumstances in which we are being asked to do it.

The Hon. K.J. MAHER: I thank the honourable member for his contribution. I take on board the process comments that are made. I can assure the honourable member it does not give me a lot of joy to come into this chamber and know I am bringing in something that will elicit such comments about, ‘We didn’t have time’ and ‘Process hasn’t been followed.’ It is not something I love to do either, but on this case, I could not in good conscience not have asked the chamber to pass this as soon as possible.

In terms of the time frames, I think it was 13 September—so almost five weeks ago to the day—that the High Court handed down the judgement in the Chiro case. I am advised that in the five weeks it was acting on the advice of the Solicitor-General to get this as correct as possible, which is why it has taken that time frame. In my legal experience, if it is five weeks to do something that is reasonably complicated, I do not think anyone has been dragging the chain on doing this.

I am advised it was about 4 October that it was realised that there was one of these cases in November that a verdict has been returned but sentencing had not taken place. I am advised it was only on Monday of this week that it was understood that there was a case coming up next week. So this is not a fake call for urgency. When the government became aware of the facts, we acted as quickly as possible, I am advised, to bring this to the chamber, as we knew the facts and became aware.

Again, I thank the honourable member for his contribution. This is not some esoteric debate, where we can stand up and talk about process and how the wrong thing has been done. This has a real-life impact. I agree with the honourable member. With a clear conscience, I do not think we could sit here and allow someone to face a relatively minor sentence when, at the time of trial, all involved in that trial understood how they thought this would play out, to allow them to receive a much lesser sentence than everyone understood at the trial for the mere fact that in the intervening period there has been a High Court decision that has meant a judge, on the view of the High Court, ought to have asked questions of the jury that they did not ask—but they did not know that they ought to have asked that—to allow what would be probably considered by all at the time a reasonable sentence to be imposed.

The Hon. K.L. VINCENT: I just wanted to place on the record that the Dignity Party also agrees that this is not an ideal situation to be in. Usually, we adhere to process in this place, and ultimately that is because adhering to process helps us to get the best outcome for everybody in the state. Usually, we take time to pass bills, because it takes time to consider them and to consult with people, and to reach the right verdict considering everyone’s perspectives, but in this case we do not have that luxury. Ultimately, although the reason that we are here might not be perfect and it might not be preferable, I think the best outcome we can achieve would be to pass this legislation quickly to ensure that we do get the appropriate action for these very serious offenders and we do not have more children at risk.

Having said that, though, I would like to place on the record that I do take umbrage at comments that were made by the Attorney-General in the other place on ABC radio this morning. I am paraphrasing him, so I hope I am not doing him any great injustice. They were along the lines of, ‘You know, we’d like to pass this bill as soon as possible, but gosh only knows what will happen in the Legislative Council. I can’t control what happens there,’ more or less implying that it is the Legislative Council, and only the Legislative Council, that ever holds up legislation. I think those comments are particularly offensive, given that in recent times we have passed three bills and in fact, this will be the second one this week, by my count, that we have agreed to pass expeditiously to ensure the best outcome for the state.

As I have said, given that the procedures are there and the usual processes are there to allow us to reach the best outcome, in this case, in this situation, as imperfect as it may be, the right thing to do and the best outcome to reach is for this legislation to pass, to make sure that offenders do not get away or do not have a lesser offence for their very serious crimes, and that the children and young people are sent a very serious message, and a very genuine message, that we are willing to do all we can in this place to keep them safe. We support the speedy passage of this bill.

The Hon. A.L. McLACHLAN: I might just make a couple of comments on the delay, and then we will move on to the bill, probably to the relief of the minister. The delay issue will probably be circulated more in the other chamber, between the Attorney and the shadow attorney. I am not questioning the minister’s assertions, but five weeks for the Solicitor-General I think personally is a tad long, given that it has been a model that we are adopting from the criminal justice report of the royal commission. I will leave it there, and those issues have been articulated in the media, anyway, at length.

I thank the minister for his second reading summing-up. There is a lot of information there. For the benefit of Hansard, I want to break down a little of that. Obviously, we are not seeking to amend this bill, so it is not for the purposes of justifying any form of amendment. Let’s put the retrospective provisions aside for a moment. Can we just go through again a case where there is a series of allegations to which a jury has made a finding of guilt. This is how it would operate, as enacted, with the new law applying.

The Hon. K.J. Maher interjecting:

The Hon. A.L. McLACHLAN: This is the law applying as if we passed the amendments in this bill.

The Hon. K.J. MAHER: Pre Chiro?

The Hon. A.L. McLACHLAN: No, not pre: on the passage of this bill. I am just trying to tease out how it operates in practice. We have a series of events. The charge has been proved. Some events are less serious; some are in the higher range. As I understand, it is a conviction for the one offence. What then happens during the sentencing process? This is not under the retrospective amendments. The jury does not have to agree on which ones they accept brings them to the finding of guilt. How does the judge then decide which ones have been proven, or does the judge not have to and just sentences on the collective?

The Hon. K.J. MAHER: I am sure, as I am speaking, if I am getting this at all wrong, I will get a tug on my jacket to tell me. As I am advised, it is the one offence the trial of fact finds the accused guilty on, but I think the question is in terms of what part or what particular acts you are to be sentenced on. As I am advised, that part remains the same as, effectively, the pre Chiro situation. What this bill seeks to do is keep that situation; that is, it is up to the sentencing judge, who has heard all the facts and all the evidence, to make a decision as to which of the particular acts, in the sentencing judge’s view, has been proved beyond reasonable doubt to then form the basis for sentencing.

The Hon. A.L. McLACHLAN: I have a couple of questions. Rather than trawl through the bill, we may as well deal with them as general issues. That is what I thought my understanding was. I hope the minister appreciates that I have had an equally limited amount of time to consume the technicalities of this bill. So, once the verdict of guilty has come in, the judge then, according to what the minister has said, contemplates, post the verdict of guilt, the allegations of the particular incidences—I am just asking for a correction on this—then makes a personal finding as to which ones have been proved beyond reasonable doubt and sentences accordingly.

The Hon. K.J. MAHER: That is correct. That is how it is intended to operate under what we are being asked to pass today. That is how it operated and how everyone has understood it to operate pre the Chiro High Court decision, yes.

The Hon. A.L. McLACHLAN: So, the government’s justification for the bill, which I am not challenging, is that, in effect, it is clarifying and crystallising best practice, which would have occurred by asking for specialist verdicts. In effect, it is providing a framework for a process that the government previously thought was being carried out; is that fair?

The Hon. K.J. MAHER: I will give the answer, and that might reflect whether I understood the question properly. I think it is the case that this regularises what everyone—I think all participants in proceedings—had understood the way the legislation had previously worked before. In that respect, in terms of what the judge sentences upon, it reverts back to the understanding all participants in proceedings would have had before the Chiro High Court case.

The Hon. A.L. McLACHLAN: It clarifies and provides a framework, in my reading, of how it was expected to be done and, therefore, that is the justification the government gives for the retrospective provisions because, as I understand from the summing up of your second reading, that is the justification. I am not challenging it. I am just trying to draw it out onto Hansard.

The Hon. K.J. MAHER: Often the quite reasonable objection to retrospectivity in relation to criminal law is that humans base their behaviour on how they understand the law operates and what the punishment for behaviours will be, whereas this in that sense is applying how everybody thought the law operated before the High Court case. So, in that respect, it is not retrospectively fitting what people would have had no way of knowing were penalties for behaviour, which is most commonly the basis for objection to this type of retrospectivity, particularly when it comes to what the potential punishments for offences are.

The Hon. A.L. McLACHLAN: Can I move on to a slightly different topic? The minister mentioned in his second reading summing-up—and there was a lot of information there, so I just want to go back to it. If I understood correctly, and I am now on the retrospective provisions, if they apply to you, there was some protection on penalty or there was some trade-off on penalty on the maximums or minimums. Did I completely misunderstand that, or does it just operate as normal? There was some commentary.

The Hon. K.J. MAHER: I think this is the question. The royal commission recommended 25 years as a maximum penalty. The maximum penalty under the existing legislation was life imprisonment, so we have not downgraded that one in effect to what the royal commission’s recommendations were. We have left the maximum penalty at life imprisonment.

The Hon. A.L. McLACHLAN: As to the person who is awaiting sentence and to whom the retrospective provision applies, will they face the same sentence as they would have otherwise?

The Hon. K.J. MAHER: Yes, my advice is that if we take it pre Chiro—so, what operated for this offence prior to that—if this bill passes, the maximum penalty going forward will not change. My advice is that there is not a greater penalty for this bill now than there was to what everyone thought was the case before this. Again, I think that goes to what I talked about: the biggest objection usually to anything that is seen as retrospective is that it is not a different punishment for what was the same set of behaviours in the past.

The Hon. A.L. McLACHLAN: I thank the minister. There was a lot of information in his second reading and it was not entirely clear to me. I would like to go through for the sake of completeness just to tease out why not all aspects of the royal commission’s recommendations were adopted. There is a paragraph at the end of the Attorney’s letter to me, dated 17 October, at the end of page 2:

Finally, not all aspects of the Royal Commission recommendations have been adopted. There are minor deviations from the recommended model provisions, aimed at preserving the existing South Australian provisions where it makes sense to do so.

I would like to understand the concept of ‘makes sense to do so’. And:

These deviations include retaining the existing South Australian maximum penalty for the offence—

which the minister has already addressed—

retaining ‘under 17’ in the definition of ‘child’…, and retaining several definitions used to establish a ‘position of authority offence’.

That does not sound significant but I just want to be assured that that is really the use of a drafting technique and fitting it into the existing legislation rather than a new policy endeavour.

The Hon. K.J. MAHER: I thank the honourable member for his questions. As he said, not all aspects of the royal commission recommendations have been adopted exactly. It will not take long to briefly explain the four areas where there are slight deviations. The first one we have covered in terms of the maximum penalty. The maximum penalty recommended by the royal commission recommendations was 25 years. Ours, as it previously applied, was life imprisonment and that will continue, so we have not adopted that particular measure that would have, in effect, downgraded our charge.

The model provisions define a child as a person under the age of 16; the current SA position is under the age of 17. We are retaining that higher age of 17, so in effect, again, we are not downgrading it from what is already there in line with what would be effectively downgrading it by adopting the model provisions. The model provisions suggest that jurisdictions should define sexual offences by reference to their own existing offences. The existing definition in section 50 is appropriate and has been retained.

Finally, the model provisions refer to ‘special care’ whereas the existing South Australian terminology refers to ‘positions of authority’. That existing South Australian terminology of positions of authority is retained. There are also differences in the context of the definitions of the roles or relationships that comprise a person who holds a position of authority. In essence, where the model provisions are broader they have been adopted but where the model provisions are narrower or weaken or downgrade what the existing provisions are, we have preferred those and have retained them.

The Hon. A.L. McLACHLAN: I do not have any further questions, and I am not seeking to amend any other part of the bill during the committee stage.

Clause passed.

Clause 2 passed.

New clauses 2A, 2B, 2C, 2D, 2E, 2F, 2G.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–2]—

Page 2, after line 8—After clause 2 insert:

Part 1A—Amendment of Child Sex Offenders Registration Act 2006

2A—Amendment of Schedule 1—Class 1 and 2 offences

Schedule 1, clause 2(ea)—delete paragraph (ea) and substitute:

(ea) an offence against section 50 of the Criminal Law Consolidation Act 1935 (persistent sexual abuse of a child);

(eab) an offence of persistent sexual exploitation of a child (see section 50 of the Criminal Law Consolidation Act 1935 as in force before the commencement of Part 1C of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017);

Part 1B—Amendment of Correctional Services Act 1982

2B—Amendment of section 4—Interpretation

(1) Section 4(1), definition of child sexual offence, (ba)—delete paragraph (ba) and substitute:

(ba) persistent sexual abuse of a child;

(2) Section 4(1), definition of sexual offence, (ba)—delete paragraph (ba) and substitute:

(ba) persistent sexual abuse of a child;

Part 1C—Amendment of Criminal Law Consolidation Act 1935

2C—Amendment of section 49—Unlawful sexual intercourse

(1) Section 49(5a)—delete subsection (5a)

(2) Section 49—after subsection (8) insert:

(9) For the purposes of this section, a person is in a position of authority in relation to a person under the age of 18 years (the child) if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment or to terminate the child’s employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2D—Substitution of section 50

Section 50—delete the section and substitute:

50—Persistent sexual abuse of child

(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

Maximum penalty: Imprisonment for life.

(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.

(4) However—

(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and

(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts; and

(c) if the trier of fact is a jury, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(5) The prosecution is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(6) This section extends to a relationship that existed wholly or partly before the commencement of this section and to unlawful sexual acts that occurred before the commencement of this section.

(7) A person may be charged on a single indictment with, and convicted of and punished for, both—

(a) an offence of maintaining an unlawful sexual relationship with a child; and

(b) 1 or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.

(8) Except as provided by subsection (7)—

(a) a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence; and

(b) a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.

(9) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.

(10) For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.

(11) A court sentencing a person for an offence against this section is to sentence the person consistently with the verdict of the trier of fact but having regard to the general nature or character of the unlawful sexual acts determined by the sentencing court to have been proved beyond a reasonable doubt (and, for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining the general nature or character of the unlawful sexual acts determined by the trier of fact found to be proved beyond a reasonable doubt).

(12) In this section—

adult means a person of or over the age of 18 years;

child means—

(a) a person who is under 17 years of age; or

(b) a person who is under 18 years of age if, during the period of the relationship that is the subject of the alleged unlawful sexual relationship offence, the adult in the relationship is in a position of authority in relation to the person who is under 18 years of age;

predecessor offence means an offence of persistent sexual exploitation of a child, or of persistent sexual abuse of a child, as in force under a previous enactment;

unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence;

sexual offence means—

(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

(b) an attempt to commit, or assault with intent to commit, any of those offences; or

(c) a substantially similar offence against a previous enactment;

unlawful sexual relationship offence means an offence against subsection (1).

(13) For the purposes of this section, a person is in a position of authority in relation to a child if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment or to terminate the child’s employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2E—Amendment of section 57—Consent no defence in certain cases

Section 57(4)—delete subsection (4) and substitute:

(4) For the purposes of subsection (1), a person is in a position of authority in relation to a person under the age of 18 years (the child) if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment or to terminate the child’s employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2F—Amendment of section 63B—Procuring child to commit indecent act etc

Section 63B(6)—delete subsection (6) and substitute:

(6) For the purposes of this section, a person is in a position of authority in relation to a child if—

(a) the person is a teacher and the child is a pupil of the teacher or of a school at which the teacher works; or

(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or

(c) the person provides religious, sporting, musical or other instruction to the child; or

(d) the person is a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) in a religious or spiritual group attended by the child; or

(e) the person is a health professional or social worker providing professional services to the child; or

(f) the person is responsible for the care of the child and the child has a cognitive impairment; or

(g) the person is employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or is a person engaged in the administration of those Acts, acting in the course of the person’s duties in relation to the child; or

(h) the person is an employer of the child or other person who has the authority to determine significant aspects of the child’s terms and conditions of employment or to terminate the child’s employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

2G—Sentencing for offences under previous law

(1) A sentence imposed on a person, before the commencement of this section, in respect of an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 2D of this Act) is taken to be, and always to have been, not affected by error or otherwise manifestly excessive merely because—

(a) the trial judge did not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and the person was not sentenced on the view of the facts most favourable to the person; and

(b) the sentencing court sentenced the person consistently with the verdict of the trier of fact but having regard to the acts of sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt.

(2) Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 2D of this Act) the following provisions apply:

(a) a verdict of guilt handed down by the trier of fact in relation to the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information;

(b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt;

(c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person.

(3) This section does not apply in relation to the particular matter that was the subject of the determination in Chiro v The Queen [2017] HCA 37 (13 September 2017).

Note—

Except as provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37 (13 September 2017).

I will not speak at length to them. I think we have agitated quite thoroughly the issues in those amendments already in the committee stage.

New clauses inserted.

Clauses 3 to 6 passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Employment–2]—

Page 4, lines 1 to 6—Delete Part 5 and substitute:

Part 5—Amendment of Summary Procedure Act 1921

7—Amendment of section 4—Interpretation Section 4(1), definition of sexual offence, (ba)—after ‘child’ insert: ‘or persistent sexual abuse of a child’

7A—Amendment of section 99AAC—Child protection restraining orders

Section 99AAC(8), definition of child sexual offence—after paragraph (d) insert:

(daa) an offence of persistent sexual abuse of a child under section 50 of the Criminal Law Consolidation Act 1935;

Part 6—Amendment of Surveillance Devices Act 2016

7B—Amendment of section 3—Interpretation

Section 3(1), definition of review agency, (a)—delete ‘the Police Ombudsman’ and substitute:

the reviewer under Schedule 4 of the Independent Commissioner Against Corruption Act 2012

Amendment carried; clause 7 as amended passed; new clauses 7A and 7B inserted.

Title.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Employment–2]—

Page 1—Delete ‘various Acts within the portfolio of the Attorney-General’ and substitute:

the Child Sex Offenders Registration Act 2006; the Correctional Services Act 1982; the Criminal Law Consolidation Act 1935; the Cross-border Justice Act 2009; the Justices of the Peace (Miscellaneous) Amendment Act 2016; the Real Property Act 1886; the South Australian Employment Tribunal Act 2014; the Summary Procedure Act 1921; and the Surveillance Devices Act 2016

Amendment carried; title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:51): I move:

That this bill be now read a third time.

Bill read a third time and passed.

See full session on Hansard