Royal Commission Criminal Justice Legislation Amendment Act 2019 (ACT)

Case

Royal Commission Criminal Justice Legislation Amendment Act 2019

A2019-6

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Children and Young People Act 2008

4            Offence—mandatory reporting of abuseNew section 356 (1A)  3

5            Section 356 (2), definition of mandated reporter, new paragraph (oa)       3

6            Section 356 (2), new definition of religious confession  3

Part 3Crimes Act 1900

7New sections 66AA and 66AB 4

8            Sexual intercourse—people not to be presumed incapable by reason of ageNew section 68 (3)  7

9            New section 441B  7

10          New section 442A  8

Part 4Crimes (Sentencing) Act 2005

11          Victim impact statements—use in courtSection 52 (4)  9

Part 5Ombudsman Act 1989

12          Definitions—div 2.2ASection 17D, definitions of employee, head and reportable allegation     10

13          Meaning of designated entity—div 2.2ASection 17EA (2), definition of religious body and examples and note     10

14          New sections 17EAA to 17EAC  10

15          Expiry—pt 11Section 53  13

16          Dictionary, definition of employee  13

17          Dictionary, definition of head  13

18          Dictionary, definition of reportable allegation  14

Royal Commission Criminal Justice Legislation Amendment Act 2019

A2019-6

An Act to amend legislation about child sexual offences, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Royal Commission Criminal Justice Legislation Amendment Act 2019.

  2. Commencement

    (1)Section 15 commences on the day after this Act’s notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)The remaining provisions commence on a day fixed by the Minister by written notice.

    Note 1A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    Note 2If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

  3. Legislation amended

    This Act amends the following legislation:

    ·     Children and Young People Act 2008

    ·     Crimes Act 1900

    ·     Crimes (Sentencing) Act 2005

    ·     Ombudsman Act 1989.

Part 2Children and Young People Act 2008

  1. Offence—mandatory reporting of abuse
    New section 356 (1A)

    after the notes, insert

    (1A)A person who is or was a member of the clergy of a church or religious denomination is not entitled to refuse to make a mandatory report because it contains information communicated to the member during a religious confession.

  2. Section 356 (2), definition of mandated reporter, new paragraph (oa)

    insert

    (oa)a minister of religion, religious leader or member of the clergy of a church or religious denomination;

  3. Section 356 (2), new definition of religious confession

    insert

    religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the member’s church or religious denomination.

Part 3Crimes Act 1900

  1. New sections 66AA and 66AB

    before section 66A, insert

66AAFailure to report child sexual offence

(1)A person commits an offence if the person—

(a)is an adult; and

(b)obtains information that leads to the person reasonably believing that a sexual offence has been committed against a child; and

(c)does not, as soon as practicable after forming the belief, give the information to a police officer.

Maximum penalty:  imprisonment for 2 years.

(2)Subsection (1) does not apply if—

(a)the person—

(i)obtains the information when the alleged victim was no longer a child; and

(ii)reasonably believes the alleged victim does not want a police officer to be told about the person’s belief; or

(b)the person reasonably believes that giving the information to a police officer would endanger the safety of a person (other than a person reasonably believed to have committed the sexual offence); or

(c)the person reasonably believes a police officer already has the information; or

(d)the person—

(i)is a mandated reporter under the Children and Young People Act 2008, section 356 (2); and

(ii)has reported the information under that Act, division 11.1.2 (Reporting abuse and neglect of children and young people) or reasonably believes someone else has done so; or

(e)subject to subsection (3), giving the information to a police officer would disclose information in relation to which privilege may be claimed under a law in force in the Territory; or

(f)the information is generally available in the public domain; or

(g)the person has another reasonable excuse.

(3)A person who is or was a member of the clergy of a church or religious denomination is not entitled to refuse to give information under subsection (1) because the information was communicated to the member during a religious confession.

(4)The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section.

(5)If a person gives information mentioned in subsection (1) to a police officer honestly and without recklessness—

(a)giving the information is not a breach of—

(i)confidence; or

(ii)professional etiquette or ethics; or

(iii)a rule of professional conduct; and

(b)the person does not incur civil or criminal liability only because of giving the information.

(6)Subsection (5) does not apply if giving the information would be a breach of client legal privilege.

(7)This section applies to information obtained on or after the commencement of this section, including information about a sexual offence that occurred before the commencement of this section.

(8)In this section:

applied provisions—see the Criminal Code, section 10 (1).

religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the member’s church or religious denomination.

sexual offence means—

(a)an offence against—

(i)this part; or

(ii)any other provision prescribed by regulation; or

(b)an offence against a sexual offence provision of this Act previously in force.

66ABMaking false report about child sexual offence

(1)A person commits an offence if—

(a)the person gives information to a police officer about an alleged sexual offence against a child; and

(b)the information is false or misleading in a material particular; and

(c)the person knows that the information—

(i)is false or misleading in a material particular; or

(ii)omits something, without which, the information is false or misleading in a material particular.

Maximum penalty:  100 penalty units, imprisonment for 12 months or both.

(2)In this section:

sexual offence—see section 66AA (8).

  1. Sexual intercourse—people not to be presumed incapable by reason of age
    New section 68 (3)

    insert

    (3)This section applies whether the offence or alleged offence was committed before or after the commencement of this section.

  2. New section 441B

    insert

441BRetrospective application of repealed alternative verdict provision for carnal knowledge

(1)This section applies to section 70 (the repealed provision) as in force at any time before the commencement of the Crimes (Amendment) Ordinance (No 2) 1984.

NoteThe ordinance became an ACT Act (the Crimes (Amendment) Ordinance (No 2) 1984) on 11 May 1989 (see Australian Capital Territory (Self‑Government) Act 1988 (Cwlth) s 34 (4)).

(2)The repealed provision is taken to have been amended by omitting paragraph (a) and substituting it with the following:

“(a)she was of or above that age but under the age of sixteen years; and”.

  1. New section 442A

    insert

442AReview of operation of child sexual abuse reporting offence

(1)The Minister must review the operation of section 66AA (Failure to report child sexual offence) as soon as practicable after it has been in operation for 2 years.

(2)The Minister must present a report of the review to the Legislative Assembly within 6 months after the day the review is started.

(3)This section expires 3 years after the day it commences.

Part 4Crimes (Sentencing) Act 2005

  1. Victim impact statements—use in court
    Section 52 (4)

    substitute

    (4)Subsection (5) applies to a maker of a statement, if a special requirement for giving evidence—

    (a)applied to the maker giving evidence in the proceeding to which the statement relates; or

    (b)would have applied to the maker had the maker given evidence in the proceeding.

    (5)If the maker of the statement wishes, the special requirement applies to the maker reading out the maker’s statement in court as if the maker were a witness giving evidence in the proceeding.

    (6)In this section:

    special requirement, for giving evidence, means any of the following provisions under the Evidence (Miscellaneous Provisions) Act 1991:

    (a)part 2.2 (Evidence of children—audiovisual links);

    (b)division 4.3.2 (Special requirements—general); 

    (c)division 4.3.5 (Giving evidence by audiovisual link);

    (d)section 101 (Child or witness with disability may have support person in court);

    (e)section 102 (Witness with vulnerability may give evidence in closed court).

Part 5Ombudsman Act 1989

  1. Definitions—div 2.2A
    Section 17D, definitions of employee, head and reportable allegation

    omit

  2. Meaning of designated entity—div 2.2A
    Section 17EA (2), definition of religious body and examples and note

    relocate to section 17D

  3. New sections 17EAA to 17EAC

    insert

17EAAMeaning of head of a designated entity—div 2.2A

(1)In this division:

head, of a designated entity, means—

(a)for an administrative unit—the director‑general of the administrative unit; or

(b)for a religious body—the individual nominated under subsection (2) or (3); or

(c)for any other designated entity—

(i)if a regulation prescribes the head of the entity—the prescribed head of the entity; or

(ii)in any other case—the individual primarily in charge of the management of the entity.

(2)A religious body must—

(a)nominate an individual as the head of the body for this division; and

(b)give the nomination to the ombudsman.

(3)If a religious body does not make a nomination under subsection (2), the ombudsman may, in writing, nominate an individual as the head of the body for this division.

17EABMeaning of reportable allegation—div 2.2A

(1)For this division, a reportable allegation is an express assertion that reportable conduct has happened.

(2)However, if an express assertion that reportable conduct has happened was made as a religious confession, the assertion is a reportable allegation if, and only if, it relates to—

(a)sexual abuse against a child; or

(b)non-accidental physical injury to a child.

(3)A person who is or was a member of the clergy of a church or religious denomination is not entitled to refuse to report a reportable allegation because it contains information communicated to the member during a religious confession.

(4)In this section:

religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the member’s church or religious denomination.

17EACMeaning of employee—div 2.2A

(1)In this division:

employee, of a designated entity—

(a)means a person who is engaged—

(i)under a contract of employment with the designated entity; or

(ii)by the designated entity to provide services to children (other than under a contract of employment); or

Examples

·out-of-home carer

·volunteer

(iii)by another entity (whether or not under a contract of employment) to provide services to children on behalf of the designated entity; and

Example

subcontractor

(b)for a designated entity that, in accordance with the Children and Young People Act 2008, authorises an out-of-home carer to exercise daily care responsibility or long-term care responsibility for a child—includes an adult who stays for at least 21 days at premises provided by the authorised out‑of‑home carer for the child to live.

(2)However, for a designated entity that is a religious body, employee—

(a)means—

(i)a minister of religion, a religious leader or an officer of the religious body; or

(ii)a person who is engaged under a contract of employment with the religious body; or

(iii)a person who is engaged by the religious body to provide services (other than under a contract of employment) whether or not the services are provided to children; but

(b)does not include a person only because the person participates in worship.

  1. Expiry—pt 11
    Section 53

    omit

    31 March 2019

    substitute

    the commencement of the Royal Commission Criminal Justice Legislation Amendment Act 2019, section 14

  2. Dictionary, definition of employee

    omit

    section 17D

    substitute

    section 17EAC

  3. Dictionary, definition of head

    omit

    section 17D

    substitute

    section 17EAA

  4. Dictionary, definition of reportable allegation

    omit

    section 17D

    substitute

    section 17EAB

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 21 February 2019.

  2. Notification

    Notified under the Legislation Act on 27 March 2019.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Royal Commission Criminal Justice Legislation Amendment Bill 2019, which was passed by the Legislative Assembly on 19 March 2019.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2019

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