CRIMES AMENDMENT (PROTECTION OF CHILDREN) BILL 2014

Written on the 29 May 2014

Second reading. Debate resumed.

Mr D. R. J. O'BRIEN (Western Victoria) -- It is with great pleasure that I rise to speak on the Crimes Amendment (Protection of Children) Bill 2014. This is a very significant bill. It results from lots of work by many people over a number of years, including victims, other submitters and ultimately the committee, which involved parliamentarians, the secretariat and others who contributed to the production of the Family and Community Development Committee's report entitled Betrayal of Trust -- Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations.

As a member of the committee I was honoured to be part of that process. It was a difficult report for us all, as has been canvassed, but I proudly stand here now as a member of the Parliament as the government and the Parliament continue the process of implementing the recommendations. For that, I commend the Attorney-General's department and the government as whole, as well as the members of Parliament who have spoken to the bill in a heartfelt way in both houses. I include Ms Mikakos's contribution, although for reasons I will explain the government remains committed to the bill in the form it is in now. I understand that the concerns raised by many of the submitters that Ms Mikakos referred to are genuine concerns, and I will touch on that shortly. The spirit in which Ms Mikakos conducted the debate that we have just had again complements the work of the committee and the victims who reported to it. We have succeeded in conducting this debate in a civil manner and with decorum.

It is the Betrayal of Trust report that I initially wish to commend and go to.

Firstly, a part of the report that I did not see as a member of the committee was the chair's foreword. I note that the chair is in the chamber. Of the many people who have summed up the essential issues and the reasons these recommendations are so important, with great respect to the chair, she has put it as well as anyone. I will quote two paragraphs from the foreword to place it on the record and to remind the Parliament as we debate this bill what this legislation arose from. On page 4 the chair says:

The criminal abuse of children involves extremely serious breaches of the laws of our community. Those who engage in it, or are in positions of authority and conceal such offences, should be dealt with under the criminal law. Non-government organisations must be expected to adequately protect children in their care and respond to any allegations of criminal offences by reporting to the police and relevant authorities. Victims should have access to appropriate avenues to pursue justice for the harm they have suffered.

Our recommendations reflect these essential principles.
To inform our recommendations, we ensured we heard from individual victims and their families regarding their personal experiences, insights and suggestions for reform. We also wanted to provide a genuine opportunity for their experiences to be publicly acknowledged on behalf of the people of Victoria.

In that regard the committee heard from victims and their families, and the recommendations very much reflect our consideration of those contributions, hearing from other parties, including the institutions where in many instances the abuse had occurred under their cloth. It is of critical importance that many of those institutions involve significant family connections. It is not easy to separate a religious institution from the concept of family.

Religious institutions in their many guises, whether run according to the values of Christianity, Judaism, Jehovah's Witnesses or other religions, have extremely close connections with priests, rabbis, deacons, rectors or other elders who are members of families. You cannot necessarily simply say, 'Well, that was a report that related to child abuse just in non-government institutions, separate from child abuse as it affected the family.'

That is why, on the principal matter of debate, where in a sense the Labor Party has departed from the thrust of the recommendations of the committee in its Betrayal of Trust report, it is important to remember that child abuse is abhorrent and that mandatory reporting of child abuse needs to be urged wherever it occurs, including within the family, be that part of a non-government or religious organisation or be it in a secular or any other family.
That does not mean that there are not careful protections in the bill. The protections cover family violence, which is also abhorrent.

Other members of Parliament and I have spoken about that and supported the budgetary measures that this government has taken across the whole of government to say, as was outlined by the Minister for Community Services, the Attorney-General and others, that violence and so-called family violence -- or domestic violence or whatever you wish to call it -- are absolutely unacceptable. The debate on this bill, to the extent that there is a debate, calls on members of Parliament such as me, in considering the legislation, to reconcile and balance the need to protect vulnerable people in our community, be they children or victims of family violence and those in control of children. For the reasons I will go to and from what the Attorney-General has said in the Assembly, it is my clear belief that this bill has struck the right balance in providing that protection for children but, where necessary, also for people who are in a vulnerable situation in relation to reporting.

Turning to the bill, the two key provisions of the bill establish two new offences. The first is a failure by persons in authority to protect children from a sexual offence. Clause 3 inserts new section 49C in the Crimes Act 1958. The second new offence is a failure to disclose a sexual offence committed against a child under the age of 16 years, which is provided for by clause 4 inserting new section 327 in the Crimes Act 1958.
It is noted that the first offence -- failure by persons in authority to protect children from sexual offences -- is itself a significant measure and one that is not opposed. It has the strong support of even those persons who have concerns in relation to the other offence.

I note in this regard that I have been the recipient of a letter dated 23 March, co-addressed to Mr Drum and Mr Danny O'Brien, from various authors, including the Federation of Community Legal Centres, the Domestic Violence Resource Centre Victoria, Domestic Violence Victoria, the Aboriginal Family Violence Prevention and Legal Service Victoria, the Women's Domestic Violence Crisis Service of Victoria, inTouch Multicultural Centre against Family Violence, Women's Legal Service Victoria, Family Legal, No to Violence Men's Referral Service, Women With Disabilities, the Victorian Women's Trust and the Victorian Centres against Sexual Abuse forum.

I understand those groups wrote to us as members of The Nationals in this house. I wholeheartedly agree with the first part of the letter because it indicates support for clause 3 in its present form, being the very important provision to criminalise a failure by a person in authority to protect a child from child abuse. The groups take exception to clause 4.

In relation to the offence described in clause 3, the five-year maximum penalty for that offence is an important statement of the serious approach the government takes in regard to covering up offences that have occurred and moving paedophiles from one parish, or other place, to another.

Clause 3 is a significant clause. The definition of relevant organisations is broad. It includes churches, schools, sporting groups, government agencies, out-of-home care services and any organisation that cares for or has supervision over children. Another reason it is important is that it is a careful consideration of recommendation 23 of the Betrayal of Trust report. It will apply if the child was in Victoria at the time the substantial risk occurred or if the sexual offence, or some element of it, was at risk of occurring in Victoria. Importantly, national and international organisations that operate in Victoria will also be covered by the offence.

One of the significant leadership decisions that was taken by then Premier Baillieu to appoint the Family and Community Development Committee to conduct the inquiry that resulted in the Betrayal of Trust report -- a decision which was criticised at the time -- clearly demonstrates how Victoria has led the way against what are sometimes very powerful religious organisations. We have seen since then in Australia the commissioning of other reports in other states, including the royal commission, and also actions by the United Nations at the highest levels in relation to the Vatican and the Catholic Church.

The evidence that was heard and the admissions that were obtained by the committee from leaders of the Catholic Church have been widely heard. It is important to note that the majority of the committee's recommendations and findings, and certainly the ones relating to this legislation, were based on admissions that church leaders, sometimes reluctantly, ultimately made to the committee about the failings of their organisations. That is why cover-ups, which will be prevented by the introduction of this important clause in this bill, just cannot happen again. They were a betrayal of the victims, their families and the wider community. The Honourable Justice Marks said that child abuse is a degenerate crime against the whole of society.

Given the time and the fact that other members wish to speak on the bill I should to turn the offence described in clause 4. Where any person over 18 has information that leads them to form a reasonable belief that a sexual offence has been committed in Victoria against a child under 16 by another adult, the person will be guilty of the offence if they fail to disclose that information to the police as soon as possible, unless -- and this is the important part -- they have a reasonable excuse for not disclosing the information.

There are specific exemptions to the offence set out in the legislation which I intend to summarise and turn to. The most important is the reasonable excuse exemption for not disclosing the information. I should say at the outset that it is up to a court or jury to determine whether a person has a reasonable excuse. The bill provides some guidance. It provides that a person has a reasonable excuse under proposed section 327(3) if that person fears for the safety of any person other than the person reasonably believed to have committed or been involved in the sexual offence and where failure to disclose is a reasonable response in the circumstances, or if the person believes on reasonable grounds that the information has already been disclosed to the police by another person.

An important reminder to those figures in authority -- because defences have sometimes come to the failure to disclose -- the bill makes it clear that it is not a reasonable excuse to fail to disclose information only because the person is concerned for the perceived interests of any organisation or of the person reasonably believed to have committed or been involved in the offence.

This raises the concern that has been raised in the letter that the failure to disclose will capture mothers who are victims of family violence. Let it be said that this is not a matter on which Nationals MPs form a different view from our coalition partners. I am the government MP who has the honour of being the lead speaker for the government after the second-reading speech. I stand here as a proud member of the government, and I can say absolutely that The Nationals are 100 per cent behind this legislation, as are, I am sure, all other government members.

I witnessed the debates that occurred in the lower house, including the very considered and reasonable response that was put by the Attorney-General to the concerns that have been raised.

I have taken the time to consider those concerns, including the cases that have been cited. They include the cases of Campbell v. State in Wyoming in 2000 and State v. Williams in New Mexico in 1983. The concern is that the 'reasonable grounds' defence, although it exists in the bill, will not be applied under this legislation. With the greatest respect, I say to the authors of the letter that the American cases are different cases to the situation under the bill. They are obviously in American jurisdictions. Furthermore, they do not apply the same standards of proof that would be applicable to this defence as a defence at law to a criminal obligation.

It is a critical distinction because, contrary to what may have been the impression from the letter -- that is, that the victim will bear the onus of proof -- the legal onus will remain on the prosecution to prove all elements of the offence beyond reasonable doubt, including that the defence of fear on reasonable grounds is not present.

It is sometimes said that there is an evidentiary onus for those grounds to be raised. That will be clearly raised in circumstances involving the investigating police, the Director of Public Prosecutions when they consider the case and ultimately the courts and the judges who consider the case. The protections have been carefully considered and drafted by the Attorney-General in response to the situations genuinely raised by these groups I have listed in the letter and which were raised by Ms Mikakos in her contribution. They have been genuinely considered by this government.

Faced with the effect of the Labor Party's proposed amendment, which would be to remove the obligation to report at all, as has been said by the Attorney-General, we stand by this legislation, which is there to protect women, children and families. We stand by it because it places an obligation on all those who are aware of child abuse to report it as a crime to the police. The bill very carefully considers exemptions in a situation of so-called family violence where there is a genuine fear, including the sorts of circumstances that are set out in those American cases to which I referred.

I have considered not only the cases but an academic work by Heather Skinazi entitled Not Just a 'Conjured Afterthought' -- Using Duress as a Defense for Battered Women Who 'Fail to Protect', which was published in the Californian Law Review. It calls for the sorts of standards of proof that are in this legislation to protect against the situation in the American cases. Looking, for example, at the case of Campbell v.State, the situation there was effectively a common-law defence of duress for crimes that were said to have been committed by the defendant, who had legitimately raised battered woman syndrome, as it was called in that case. As stated on page 509 of my copy of the report on that case:
The burden of demonstrating the elements of such a defence is upon the defendant.

That is precisely the opposite situation to that provided for by this bill where the legal burden of proof remains on the prosecutor to prove all elements beyond reasonable doubt. For those reasons I stand here as a very proud former member of the Family and Community Development Committee, a very proud member of the government and as a Nationals member who is 100 per cent behind this bill.

As a member of the upper house, if I had genuine concerns about this legislation after considering the letters and the detailed cases, I would say so.

The absolute truth of the matter is that I do not have concerns. This is a very well-considered clause, and I do not have any desire to vote it down. I note that the Attorney-General said that if there were any reasonable amendments to the wording proposed by those on the other side, they may have been considered, but none came from the other side, which has chosen to try to vote down the whole clause. That would fail to protect children. It would betray the trust that was placed in the Family and Community Development Committee and in this Parliament. It would be an unacceptable outcome.

I hope I have explained my position clearly. I am happy to undertake any further discussions with anyone at any time about the differences between the American cases that were cited and the situation that applies here.
I commend Ms Crozier and other committee members involved in that inquiry: Mrs Coote, a member for Southern Metropolitan Region in this place, and Nick Wakeling, Frank McGuire and Bronwyn Halfpenny, the members for Ferntree Gully, Broadmeadows and Thomastown in the Assembly. Bronwyn Halfpenny's concerns in relation to this area are genuine, and they were made well known to committee members in her speech.

Nevertheless, I have absolute confidence in the Attorney-General's very considered legislation and am confident that those genuine concerns will be given effect to in the operation of this legislation. It is for the benefit of children and will protect our children. The bill will also protect vulnerable families and therefore deserves the support of the house. I commend it to the house.

 

 

Ms HARTLAND (Western Metropolitan) -- I rise to speak on behalf of the Greens on the Crimes Amendment (Protection of Children) Bill 2014.

This bill amends the Crimes Act 1958 by inserting two new offences in relation to sexual abuse of children. The first offence is failure by a person in authority to protect a child from sexual abuse, and the Greens wholeheartedly support this aspect. The second is failure to disclose a sexual offence committed against a child aged under 16 years. The Greens have significant concerns about this aspect, and in a moment I will outline the reason for those concerns.

To begin with, I would like to talk about the broader context in which this bill has come forward. The 2012 Cummins inquiry identified concerns regarding criminal child abuse. Its report recommended that a formal investigation be conducted into the process by which religious organisations responded to criminal abuse of children by religious personnel within their organisations.

In response, the Victorian government announced a joint investigatory Family and Community Development Committee inquiry. As I said on the day that the parliamentary committee report was released, I think it is one of the finest reports that has been presented in this house. The work was excellent, and from having read the transcripts I can only imagine how difficult it was for the people who had to sit through that process, as well as for the victims and their families.

This inquiry investigated responses to criminal child abuse by all non-government organisations that interacted directly with children, including religious organisations and recreational, sporting, child-care, education, community and other child-related services and activities operated by non-government organisations. Through the course of this inquiry and the royal commission that is now under way we have heard appalling stories of abuse.

The people we should be able to trust most -- revered religious organisations and community leaders -- have betrayed the community beyond belief. It has been revealed that churches, most notably the Catholic Church, education institutions such as Yeshiva College and formerly highly respected organisations such as the Salvation Army have denied, hidden and failed to come forward with cases of abuse not just in the long-distant past but in recent years. As many members in this chamber have said, this behaviour is disturbing and indecent and must be criminalised. I can only imagine the shock, the horror and the despair that this abuse has caused within the community.

Many religious and non-religious communities have been stunned and outraged to find abuse has occurred within their own religious or community organisations -- communities they have been involved in and had great faith in. The experience of criminal child abuse has profound and lifelong consequences for the physical, psychological and emotional wellbeing of victims. For parents of children who were abused while in the care of a trusted organisation, it is a betrayal beyond comprehension.

Quite clearly the victims of this horrific abuse must have justice. The Betrayal of Trust report is the outline of the committee inquiry. In recent weeks the government has presented its formal response to the report. The government supports a range of recommendations and has outlined how it intends to implement its response. My concern is that there is a number of absolutely critical recommendations to which the government has given only in-principle support, and it has indicated it may wait for the outcome of the royal commission before acting upon them. Victims cannot be expected to wait for years for the report of the royal commission before they see action.

I suggest that we have to remember that the Irish Commission to Inquire into Child Abuse took some 10 years before it released its final report. I am concerned that critical actions in relation to redress have not been decided upon, and plans for moving forward and time lines associated with these have not been outlined. I am more than happy to be corrected by government speakers, but at this stage that is what I see.

Specifically in relation to recommendations 26.1 and 26.2, the government has provided no plan of action with respect to requiring religious organisations and other institutions to become incorporated legal structures capable of both having insurance and being sued by their victims. The government has not adequately responded to recommendation 26.4 in relation to amending the Wrongs Act 1958 to hold organisations accountable by placing a legal duty on them to take responsible care to prevent criminal child abuse.

It has not responded adequately to recommendation 27.1 in relation to specifying in the Victims of Crime Assistance Act 1996 that no time limits should apply to applications for assistance for victims of criminal abuse in organisational settings.

Lastly, I do not believe the government has adequately responded to recommendation 28.1 in relation to the functions of the Victims of Crime Assistance Tribunal.

All these recommendations relate to proper redress for victims. We need appropriate and decisive action in relation to redress. Those who have been abused should not be forced to wait for years to start progressing in this area. We owe it to them to act swiftly. I also think the government owes it to the people who did the work to bring forward this committee report to take seriously the incredible work that was done and the spirit in which it was done.

I call on the government to provide an outline of the actions it plans in relation to these recommendations and to bring forth legislation to address them.

I now move to the specific intention of this bill. This bill addresses recommendations 23.1 and 23.2 in the Betrayal of Trust report, namely, recommendation. As I earlier indicated, the Greens strongly support the provisions in this bill that criminalise the neglect or failure of persons of authority in organisations to reduce or remove substantial risk that a child will become a victim of sexual abuse. This is critical to the redress situations about which we have heard so often, where allegations or evidence of abuse are denied, ignored or responded to in the most unhelpful ways by organisations, such as moving abusive priests or workers to different locations only to have them reoffend at the next place.

The second objective of this bill is to criminalise failure to disclose child sex offences to the police. The penalty is three years imprisonment. The failure-to-disclose law could apply to anyone over the age of 18 years who is not exempt. This means that the non-abusing parent, who might also be the subject of abuse themselves, could be prosecuted under this law. In contrast, priests who hear confessions relating to abuse possibly perpetrated by their fellow priests will still be exempt from reporting it.

We have received submissions and letters from a range of expert organisations in relation to this section of the bill.

These organisations include the Women's Legal Service Victoria, the Federation of Community Legal Centres Victoria, the No to Violence Men's Referral Service, the Domestic Violence Resource Centre Victoria, Women with Disabilities Victoria, Domestic Violence Victoria, Women's Health West, Aboriginal Family Violence Prevention and Legal Service, inTouch Multicultural Centre against Family Violence, Family Law Legal Service and the Victorian Centres Against Sexual Assault. To say the least, this is a very eminent list of organisations that agree that the failure-to-protect laws will not protect children from violence and abuse.

I will outline the reasons for these organisations not supporting the failure-to-protect law. Firstly, there is no evidence to suggest that the failure-to-protect law is necessary or that it will lead to increased reporting of abuse. In fact it could have the opposite effect with less reporting by non-abusing parents or less seeking of help by non-abusing parents as they may fear being jailed themselves. This concern was also identified in the Cummins report. The Protecting Victoria's Vulnerable Children Inquiry identified a reduction of referrals to child protection services after similar laws were introduced in South Australia and the UK.

Secondly, there are likely to be unintended consequences of the failure-to-protect law. It has the potential to unintentionally cause more harm to children -- for instance, by incarcerating the non-abusing mother for failure to protect the child and by leaving the child in the care of the perpetrator or the state.Thirdly, these expert organisations believe the law is misconceived, as it does not adequately recognise the dynamics and complexities of family violence and it could be detrimental to women and children experiencing family violence.

In particular, the legislation fails to take account of the powerful barriers to women leaving an abusive relationship or reporting that abuse. I remind the government that last year alone 29 women died as a result of family violence, and there were some 60 000 cases of family violence reported to police. The number of unreported cases is unknown, but that number gives us an idea of just how prevalent family violence is. Those women need our protection, not punishment.
Fourthly, these organisations argue that the failure-to-protect law will have a disproportionate and discriminatory impact on women who are themselves the victims of family violence. The discriminatory effect of the proposed law will be further exacerbated for women with disabilities, Indigenous women and women from culturally and linguistically diverse communities, who face additional barriers to reporting.

Finally, these organisations argue that the failure-to-protect law incorrectly allocates responsibility. It fails to place emphasis and direct law reform on ensuring that the perpetrator, not the victim, bears the responsibility for violence. This may have a negative impact on recent family violence reforms. In particular, it is inconsistent with the Victoria Police family violence code. It may also be inconsistent with Australia's National Plan to Reduce Violence against Women and Their Children, to which Victoria is a signatory.

All these points were contained in a submission provided to the government as early as 2011. The submission provides detailed evidence to back up these concerns. I will not go into this evidence as I know all parties have received this submission.

The Greens agree with the concerns outlined by these expert organisations.

We do not support the failure-to-protect law due to the risk that it will only worsen the impact of abuse on mothers and children. The government has attempted to reduce the negative impact of the failure-to-disclose law by providing that a person may have a reasonable excuse for failing to comply -- that is, if the person fears on reasonable grounds for the safety of any person, and this is a reasonable response in the circumstances. However, we do not feel that this provides adequate protection for non-abusing mothers.

There is evidence from other jurisdictions to suggest that because a reasonable excuse is a subjective notion to be defined by a jury, some non-abusing mothers have been imprisoned as a result of such laws. Even if a mother is not convicted, the emotional stress of having to endure such a court case would be immense and would impact on any child in her care. Allowing for a reasonable excuse does not negate the arguments presented against the failure-to-protect law.

While this bill was a response on behalf of the government to the Betrayal of Trust report, the terms of reference of the inquiry related to organisations not individuals. Thus the intention of the relevant recommendations, which do not specify whether they apply to organisations or individuals, are not entirely clear and the Greens do not support the government's interpretation of them.

Importantly, the Greens note that the Report of the Protecting Victoria's Vulnerable Children Inquiry, the Cummins report, expressed clear concerns about the risks and adverse consequences that could arise if a failure-to-protect law were introduced. As a consequence, while recommendation 47 of that report called for a new reporting duty within the criminal justice framework, it proposed that such a duty be restricted to a minister of religion or a person who holds an office within an organisation that has regular contact with children and young people.

For all these reasons, the Greens do not support clause 4 of the bill which relates to persons failing to disclose sex abuse.

Furthermore, I must express my deep concern that despite the government being aware since 2011 of the concern and opposition of expert organisations to failure-to-protect laws, and despite it being aware since 2012 of the concerns expressed by the Protecting Victoria's Vulnerable Children Inquiry, it has proceeded with this provision. It is also deeply concerning that the government did not consult with opposition parties on the drafting of the bill; it only provided a briefing to stakeholders after the bill was first read.

A number of the organisations I have been referring to have given me a long chronology regarding this issue around consultation. I am not going to read it into the record, but their evidence that they were not consulted about this bill is quite convincing. When you consider that these organisations work on the front line of family violence every day, you would think that the government would seek advice from them. There was no opportunity for the organisations that work on family violence and child abuse cases on a daily basis to provide their opinion in respect of the provisions as they are laid out in the bill. This is despite those organisations having written to the government on numerous occasions since 2011, including in December 2013 -- three months before the bill was introduced.

This is an incredibly important piece of legislation. Unfortunately it is damaged, as I have just outlined.

I would like to see the recommendations in this wonderful report taken up and implemented by the government, because that is the only way we can pay respect to the people who have been damaged over many years due to institutional abuse.

 

Mr EIDEH (Western Metropolitan) -- I rise to make a contribution to the debate on the Crimes Amendment (Protection of Children) Bill 2014, a bill which takes an extremely important step towards protecting those who are most vulnerable in our state. It is our duty as elected representatives in this Parliament to ensure that we take the lead in ridding our communities of abhorrent child abuse. That is why I was happy to speak on the Crimes Amendment (Grooming) Bill 2013 and why I am happy to speak on this legislation. In my opinion, these are very positive steps towards protecting children against abuse. I thank my parliamentary colleagues in the Assembly for their contributions to the debate on the bill and for expressing their views about clause 4.

The bill amends the Crimes Act 1958 by inserting two new offences in relation to the sexual abuse of children, including failure by a person in authority to protect a child from sexual abuse, which is inserted by clause 3, and failure to disclose a sexual offence committed against a child under 16 years, which is inserted by clause 4. Whilst we on this side of the house do not oppose the bill, we propose an amendment to clause 4.

Clause 3 of the bill makes it an offence for a person in a position of authority in an organisation that has children in its care, supervision or authority to fail to protect a child from sexual abuse. A person is considered to have authority if the position he or she occupies in an organisation has the power to protect children by reducing or removing any risk that may be facing the child. Organisations can include churches, out-of-home care services, sporting clubs, schools, government agencies et cetera.

The offence also extends to persons in positions of authority who may be aware of any risk of a person in their organisation committing an act of abuse towards a child -- for example, a person may be charged with this offence if they knowingly move a person who poses a risk to children to another area within their organisation. The bill makes it law that persons in authority have a responsibility to ensure the safety of children in their care, and their failure to provide that care can lead to a maximum penalty of five years imprisonment. We support this. We believe in protecting children, and we believe that it is not okay for an organisation to turn a blind eye to child abuse.

Clause 4 targets any person over the age of 18 who is aware of or has a reasonable belief that a sexual offence has been committed against a child. The clause makes it mandatory for them to disclose that information to a member of the police force as soon as humanly possible unless they have a reasonable excuse for not reporting.

Failure to do so will result in a three-year prison sentence.

We on this side of the house are very concerned about the impact of clause 4, particularly because many stakeholders have called for it to be redrafted to target only organisations and those in positions of authority within them, as was suggested in the Cummins report. These stakeholders have raised their concerns about the failure to protect in the context of family violence and/or sexual abuse. These people confront these terrible and damaging situations every day, and the government has overlooked these very real and very serious considerations. The concerns include a woman's fear of being prosecuted, sent to jail or, even worse, having her children removed from her care if she reports. We must amend this clause to ensure that these women feel supported and protected when they come forward and report and not experience more fear than they may already be confronting.

We on this side of the house support measures that seek to protect the safety and wellbeing of children, as I am positive every single member of this Parliament does. But we will be guided by the experts and those who have experienced these devastating crimes to ensure that we know the very best ways to achieve our mission. Clause 4 is not the best way to protect children from abuse and should be withdrawn. I hope the government consults with these groups to make these very important changes.

 

Ms CROZIER (Southern Metropolitan) -- I am very pleased to rise and speak in the debate on the Crimes Amendment (Protection of Children) Bill 2014.

I want to acknowledge and thank all those members who have contributed to the debate so far because, as has been highlighted, this is an incredibly important bill. I would like to acknowledge the contributions of my fellow former Family and Community Development Committee members Mr O'Brien and Mrs Coote, who I note is in the chamber and will also be speaking in this debate. I thank them most sincerely for the enormous contributions they made to the work we conducted over 18 months, culminating in the report I tabled in this place last November. At the time I tabled the report I said:

From the evidence we heard, the devastating effects of the crime of child abuse were clearly evident, in many instances with life-altering implications. The criminal abuse of children is a fundamental breach of the values of our community. It involves unlawful physical assaults, sexual abuse offences and the criminal neglect of children.

The legislation we are debating today is a direct response to the recommendations the committee put forward. I thank Ms Hartland for her acknowledgement of the committee's work. However, I was incredibly heartened by the swift action of the Attorney-General, who within a month of me tabling the report on behalf of the committee introduced a new offence of grooming, so the suggestion that the government has not acted quickly enough in relation to these important matters needs to be corrected. Can I also say that we did look into the considerable concerns that were put before the committee throughout the entire process, and we heard from hundreds and hundreds of people, whether they came before us in public hearings or through written submissions. In many instances they were family members of children who had been abused.

This bill contains two new offences relating to the failure to protect a child from a sexual offence and the failure to disclose a sexual offence against a child to police. On page 496 of our report we make our position pretty clear.
Under the heading 'Universal responsibility to report a serious crime' the report states:

The committee takes the view that every member of society has a moral and ethical responsibility to report to police any knowledge they have about serious crimes committed against children.

We go on further in this chapter to talk about the implications of this and why we made the recommendation to amend the Crimes Act 1958 to create an offence of failing to report a serious crime.

The first part of this bill deals with the failure by a person in authority to protect a child from a sexual offence. We heard of many instances where that had occurred, and I am very pleased that the Attorney-General has, I think, got the balance right in relation to this issue.

He has also got it right in the next part of the bill, which deals with the failure to disclose a sexual offence committed against a child under the age of 16 years. Again I go back to the point in the report where we say that 'every member of society has a moral and ethical responsibility'. We need to be sending a very clear message to the community that crimes against children are completely unacceptable. We need to be sending that message very clearly and very strongly, and I think we are endeavouring to do that through the introduction of this legislation.

I note that some concerns have been expressed by various members of the community in relation to instances of domestic violence and those women who fear for their own safety or that of their children. I think this bill understands and respects those concerns. Again I say that I think the Attorney-General has got it right.

The bill contains provisions relating to reasonable grounds, if you like -- that is, the government expects that the reasonableness of a person's actions will be carefully and fairly assessed. Therefore if someone thinks that they or a child is at risk, they would not be committing a crime by failing to disclose.

I think that is pretty well laid out, but I do understand that there are members of the community who are very concerned about the rise in domestic violence. I would like to place on the record at this point in time the work of the Minister for Community Services, Mary Wooldridge, in relation to this issue throughout the term of this government.

In relation to that issue, more than $95 million has been allocated in the 2014-15 budget to support the action plan to address violence against women and children.
This was launched in October 2012, and since 2011 more than 6000 mainstream and family violence specialist workers have been trained under the Family Violence Risk Assessment and Risk Management Framework, which provides a standardised, transparent approach to identify family violence and manage associated risk factors.

More than $15 million has been dedicated to supporting the community crime prevention program, including $2.4 million for early intervention and prevention of violence against women and children in Koori communities. There has been spending of $3 million to double the number of places in court-directed men's behaviour change programs and the creation of 1000 new places in men's behaviour change programs with $2.1 million in funding across four years to break cycles of violence and reduce recidivism.

They are just a handful of actions the minister has taken. I note the calls from the opposition. Unfortunately I did not hear Ms Mikakos's contribution to this bill because I was engaged in another important event in the Parliament. However, I heard her call for a royal commission into domestic violence. When the committee inquiry was announced, the then Leader of the Opposition in the Assembly, Daniel Andrews, was caught saying that it was the wrong sort of inquiry and that it should be a royal commission. Mr Andrews admitted that he got it very wrong -- and rightly so.

I know the Minister for Community Services, Mary Wooldridge, has been speaking with people in the sector, and I am sure she is aware of most of the groups that Ms Hartland was referring to.

She said that not once while she has been minister has anyone suggested to her that we need a royal commission, and quite rightly so, because a royal commission costs tens of millions of dollars. Surely to goodness it is more effective to put that money directly into services to deal with this issue. The minister has been very proactive and has done a tremendous job in carefully considering the issue. As I said, she has put a significant amount of funding into Victoria's action plan to address violence against women and children as well as investing in other necessary front-line services.

This legislation is strengthening our laws to protect children. I know other members of the government are very serious about the protection of children, and they are the most vulnerable members of our community in many instances. I am very proud to be part of a government that had the courage to undertake an inquiry of such significance.

At the time it was not viewed as being such a courageous and wise decision, but I think in hindsight everybody has understood the work we undertook and the enormous impact we have had in exposing the issue to the Victorian and Australian community.

I commend the Minister for Community Services, the Attorney-General and others for their work on this piece of legislation. It will further protect children and send a very strong message to the Victorian community that sexual abuse against children is a crime which should not be and will not be tolerated. That is what this legislation is doing. I commend the bill to the house.

 

Mrs COOTE (Southern Metropolitan) -- It is very rare in this place that all parties make a profound difference to a piece of legislation; that they speak on it with compassion and understanding, recognising and respecting the differences in opinion. That is the debate we are having here today.

I acknowledge the contributions from Ms Mikakos and appreciate and thank her for her understanding. In fact she said that she hoped this would be a debate full of respect and understanding. I obviously dispute her amendments, but I respect her for the thought she has put into them.

It is likewise with Ms Hartland. I know how much thought she has put into this legislation. She understands the work that was done by the committee and the importance of what we are dealing with here today. I understand also that she has listened to the various aspects raised by the community sector, and as part of my contribution to the debate I will explain why we came to the decisions we came to.

We have just heard from the chair of the Family and Community Development Committee's inquiry into the handling of child abuse by religious and other non-government organisations, Ms Crozier.

I think everyone would acknowledge her leadership and the professionalism she displayed in conducting that committee. It will go down in the annals of the Parliament as one of the better pieces of work we have seen. I also acknowledge my parliamentary colleague, David O'Brien, who was on that committee with me. It was very difficult, but it has been very pleasing to come out the other side and see the legislation implemented.

I remind the chamber of what we have done. As has been pointed out today by Ms Hartland, there are 15 recommendations in the committee's report. Of those 15 recommendations, 3 have already been put into law because of the work we have done. I remind members what they are. There is a new grooming law which prohibits any communication with a child or the child's parents or carers which is intended to facilitate engaging the child in a sexual offence.

There is a new offence for people who hold a position of responsibility who fail to protect the child from sexual abuse when they know someone associated with their organisation poses a risk of sexually abusing children, and a new offence for individuals who fail to inform police if they know that a child has been sexually abused.

I am concerned about the views of the Greens and the Labor Party on this bill, which does two things. Clause 3 inserts new section 49C entitled 'Failure by person in authority to protect child from sexual offence' into the Crimes Act 1958, and clause 4 inserts new section 327 entitled 'Failure to disclose sexual offence committed against child under the age of 16 years' into the same act.

Both the Greens and the Labor Party have taken a glass half full approach to this, which is a great pity because I think we have come a long way. As the chair of our committee, Georgie Crozier, said in her contribution, there has been a swift reply from the government. The government considered the report and all its recommendations, and it supported them all within a very quick time frame, which is very pleasing.

However, I want to talk about the issue of a welfare versus criminal approach. We spent a lot of time debating whether this was a welfare or a criminal issue. The Cummins report talked about this very issue. Philip Cummins said it needed to be looked at and discussed. I can assure the chamber that that is precisely what we did. It was a question of whether child abuse should be an issue that is dealt with through the Department of Human Services (DHS), with support in place and a welfare-type approach, or whether it warranted a criminal approach. We came down very heavily in favour of it warranting a criminal approach.

This is very important and is reflected in the legislation we are debating today.

I turn now to mandatory reporting. We heard from various people that mandatory reporting was okay and all we needed to do was extend it. However, we found that mandatory reporting is not a clear-cut scheme. People do not appreciate what mandatory reporting is and the extent to which it protects people. On page 486 of our report, Betrayal of Trust, we say:

The committee received evidence that shows there is a great deal of confusion about mandatory reporting laws in Victoria and how these laws might operate to protect children from criminal child abuse in an organisational setting. Much of the confusion seems to stem from the fact that mandatory reporting to child protection authorities is often confused with compulsory reporting of a crime to police.
We spent a lot of time looking at this issue.

I remind the chamber about Daniel Valerio. Daniel Valerio was a little boy; I think he was 18 months old. His face haunts us all -- I see Ms Hartland nodding. Daniel Valerio was bashed to death by his mother's partner. I still see the little face that appeared on the front pages of all our newspapers day after day, the great big brown eyes and huge bruises. People knew that Daniel had come to the attention of the authorities because of his bruises, but there was no formal reporting mechanism in place at that time. In 1993 the then Kennett government made changes to the Children and Young Persons Act 1989, which made reporting by prescribed professionals to child protection services mandatory if they suspected a child was being abused.

That little face haunted all of us and became the face of mandatory reporting.

At the time I was working for the Minister for Community Services and we were inundated with people reporting child abuse. We had no idea it was as widespread as it was. Yes, I would agree that some of it was vexatious, but on the whole there was a lot of merit in what was being reported. However, mandatory reporting in 1993 versus what we are dealing with in 2014 shows that as a community we have all come a very long way. The legislation we are putting in place clarifies these issues and deals with us as a community. It is a community responsibility, make no mistake. It is not a welfare issue; it is a criminal issue. It must be reported to the police. This bill makes that very clear. There will be no misunderstanding once this legislation passes today. It is very important that the community knows that child abuse is unacceptable. It is a criminal offence, and it has to be dealt with.
We give an enormous amount of support to families in crisis.

I too praise the Minister for Community Services, Mary Wooldridge, and the Attorney-General for taking a whole-of-government approach to family violence. It is an issue on which this government can proudly hold its head high, because family violence is of concern to us all. The current Chief Commissioner of Police, Ken Lay, has made this his own cause. But we need to give police the tools to make certain that it happens properly and that our community is accountable -- and that is precisely what we are doing today.

I know other speakers wish to make a contribution to the debate. Once again I say what an honour it was to have worked on a committee such as the Family and Community Development Committee and to have had responsibility for the development of the Betrayal of Trust report. Those of us in this chamber and in the Legislative Assembly are the legislators. We are the ones who can make a difference in the future. I commend the bill.

 

Mr D. D. O'BRIEN (Eastern Victoria) -- I rise to make a very brief contribution to the debate on this bill. I endorse wholeheartedly the comments made by Mrs Coote in her very good contribution to this debate, and in many ways I endorse her comments about Ms Mikakos and Ms Hartland and all our colleagues in the other place. The protection of children is one of the fundamental reasons we exist as legislators. If our society cannot protect its most vulnerable residents -- that is, children -- then we are in a difficult place. I strongly support this bill.
The main reason I rise to speak on this bill is to respond to a letter that my colleague David O'Brien referred to earlier. He, the Honourable Damian Drum and I received a letter from a number of domestic violence groups in Victoria raising concerns about clause 4 in particular. I place on the record that I have noted those concerns and I reiterate some of the things that David O'Brien spoke about in his contribution. In short, these groups, and there are a number of them -- Domestic Violence Victoria, Women's Domestic Violence Crisis Service, the Victorian Centres Against Sexual Abuse forum -- have written to us asking that we oppose this bill. I will not be doing so, because although I acknowledge their concerns, on reflection and after having looked at the bill I do not think that those concerns are valid. They particularly relate to the issue of women who are also the victims of family violence. Concerns have been raised, and raised by previous speakers as well, that a person who is a victim of family violence may be prosecuted under this legislation.I make it clear that there is no obligation to report the abuse of children where it would not be reasonable for a person to do so because of a fear for their own or another person's safety. If a person who is prosecuted raises fears for their safety as the reason for not reporting, the burden will be on the prosecution to prove beyond reasonable doubt that this was not the case.
I note, as David O'Brien mentioned earlier, the examples that were given of similar situations in the United States. I do not believe they are valid, in particular because of the requirement for the prosecution to prove beyond reasonable doubt that there were no fears for that person's life. I acknowledge the concerns that have been raised with us by these groups and by the opposition and the Greens. I understand where they are coming from and I do not question their motives for raising these fears, but I believe, as Mrs Coote has outlined, that it is critically important that we in this Parliament protect as best as we possibly can the most vulnerable people in our society -- that is, children.
As Mrs Coote mentioned, the story of Daniel Valerio is one that is sadly etched in the memories of us all. Sadly, there are numerous other children that we are equally concerned about. It is those little faces and very sad lives that we are legislating for.
It is critically important that the government respond to the Betrayal of Trust report. As has been said, excellent work was done by the committee chair, Ms Georgie Crozier, my colleague Mr David O'Brien and the other members of the committee. This is one of the best things the Parliament has done, as everyone before me has said. Obviously it was before my time in this place. This bill is one part of the response to that report.
I certainly support the bill, and I support clause 4. Knowing and understanding the motivations behind the amendments that have been proposed, I will not be supporting them.
It is important for us to continue to support and protect the most vulnerable in our community. I will be supporting the bill as it stands, and I commend the bill to the house.
Motion agreed to. Read second time.
Committed.

Committee
Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- I seek leave for Mr David O'Brien to join me at the table.
Leave granted.
 

 

The ACTING PRESIDENT (Mr Elasmar) -- Order! My understanding is that Ms Mikakos is proposing a number of amendments to the bill. They all relate to the proposed omission of clause 4, concerning a new offence of failure to disclose a sexual offence committed against a child under the age of 16. Ms Mikakos has proposed minor consequential amendments to earlier clauses. I understand that Ms Mikakos is seeking to postpone consideration of clauses 1 to 3 to enable her to speak to her substantial amendment 6 to clause 4. Clauses 1 to 3 postponed.
 

 

Clause 4

Ms MIKAKOS (Northern Metropolitan) -- The amendment is straightforward; it simply seeks to omit clause 4 from the bill. All the other amendments are consequential to this.

I thank the government and the Greens for agreeing to this process, the same process as was undertaken in the other place. It is essentially designed to ensure that we have a discussion and a vote to test what is effectively the substantive amendment standing in my name today rather than having the testing of the amendments occur on the inconsequential and minor addition of one word, as would have otherwise been the case by virtue of amendment 1 standing in my name. I am grateful to the other parties for agreeing to this. I also express my appreciation for the respectful way this debate has been conducted in this place today. I believe we are all striving to act in the best interests of children and the wider community, but we have a difference in point of view when it comes to this fundamental issue.

I do not want to go over all the issues I have raised in my contribution to the second-reading debate. Suffice it to say that in his significant report on protecting vulnerable children Justice Cummins identified significant difficulties with failure-to-protect laws in the context of family violence. He noted that efforts to acknowledge that for victims, putting an end to family violence is not as simple as walking away could be undermined by laws that criminalise non-protective behaviour by vulnerable parents.

We also had a significant number of expert organisations that work in the family violence and sexual abuse areas write a joint submission to the government indicating their serious concerns that the clause would be counterproductive in that it would drive reporting underground.

That is the last thing we on this side of the house want to see. We want to ensure that if we have legislation like this, it does what it is intended to do and that it does not make the situation worse in practice. This is what we are concerned about here.

In the Betrayal of Trust report members of the Family and Community Development Committee stressed that their recommendations needed to be considered against any unintended implications for other groups and individuals. We are concerned that that is exactly what is going to happen -- that there will be the unintended consequence of mothers being fearful of having their children taken away from them and of being prosecuted and that this will actually mean that there will be less rather than more reporting of abuse.

Some very strong points of view have been put to us by these expert organisations that have concerns that women will not be inclined to come forward. We think it is important that women be supported to come forward and report abuse and that they not fear that they themselves will be prosecuted, sent to jail or have their child removed from their care. We have come to the view that if the government is not prepared to consult further with the expert stakeholders, we are left with no recourse other than to seek to remove this clause, which we are concerned would do more harm than good.

With those words I encourage members to reflect on this amendment. I understand that the government is very determined to proceed with this bill, but I hope it will give some thought to reviewing the operation of this clause in due course. If the clause has the unintended consequences that are very much feared, I hope those opposite will further reflect on it and come back to this Parliament in the future to address those issues.

 

Ms HARTLAND (Western Metropolitan) -- The Greens will be supporting Ms Mikakos.
For all the reasons I have already outlined in my contribution I think it is an important move to make, and Ms Mikakos has summed up very well why we need to do this.

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- Let me begin by echoing the comments made by Ms Mikakos and thanking contributors to this debate. It is a very challenging area, and it follows the release of the Betrayal of Trust report by chair Georgie Crozier and the other members of the Family and Community Development Committee. They did an outstanding job. The clause we are dealing with implements a recommendation made in that report.

As Ms Mikakos flagged, the government will not be supporting her proposition. The government believes clause 4 should stand part of the bill.

In today's debate we are informed in a more detailed way than we sometimes are during the second-reading debate or consideration by the committee of the whole. If members review Hansard from the other place and read the contributions from the member for Lyndhurst and other members of the opposition along with contributions from the Minister for Mental Health, Ms Wooldridge, the Attorney-General, Mr Clark, and other members of the government, they will see the very clear perspectives of the opposition and the government. I note the perspective of the Greens, as articulated by Ms Hartland in her contribution to the second-reading debate.

In her contribution to debate on clause 4 Ms Wooldridge spoke about coming from the perspective of the child. She summed up the perspective of the government articulately and clearly.

I note her comments and the comments of the Attorney-General about the consultation they have personally had with some of the stakeholders and experts Ms Mikakos referred to who work in the area of family violence and sexual assault. Whilst we in government respect the views of the opposition and those stakeholders, we believe that clause 4 should stand part of this bill, and appropriate qualifications through the reasonable grounds test have been built into clause 4.
In response to the final point made by Ms Mikakos, I believe Minister Wooldridge addressed this point in her contribution in the other place. Once a law is passed the government always stands prepared to consider its implementation and feedback about its operability. We often see legislation in this place designed to improve the operation of a particular statute once the learnings from its operation in practice are available. I draw members' attention to Minister Wooldridge's contribution on that point and to the debate that took place in the Assembly around these matters.

The government is coming from the perspective of the child -- the victim. Based on that and the reasonable grounds test that is built into clause 4, we believe the balance is appropriate and therefore that clause 4 should stand part of this bill.
Mr D. R. J. O'BRIEN (Western Victoria) -- I wish to make a quick contribution on another matter relating to clause 4.

It is an important matter that needs to be placed on the record. It relates to an issue that has been raised in the wider debate involving the role of the confessional. It should be noted that, as per the committee's recommendations, the operation of the confessional is not presently sacrosanct in that every single confession is inviolate from scrutiny. The Family and Community Development Committee made this clear at page 501 of volume 2 of its report. Section 127(1) of the Evidence Act 2008 says:

A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy. That is the exemption, but subsection (2) says:

Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.

The report says:
The committee considers that the current exemption in s.127(2) of the Evidence Act 2008 provides an appropriate check on the potential abuse of any communication in a religious confessional setting made for a criminal purpose. The operational effect would be that where a religious confession of criminal child abuse is made for the purposes of seeking assistance in concealing that crime, the exemption will not apply.
Then on page 9 of the bill, proposed section 327 says:

(7) A person does not contravene subsection (2) if:
(b) the information referred to in subsection (2) would be privileged under Part 3.10 of Chapter 3 of the Evidence Act 2008 ...
I note that the public debate that has occurred in some quarters has been, in a sense, misinformed by the failure of the present exemptions in relation to the confessional to be placed on the public record and in the debate. Because it is a matter of much importance to me as a former member of the Family and Community Development Committee, I wanted to confirm that it was the committee's view that the present confessional exemptions in section 127 of the Evidence Act work well because purported confessions made for the purpose of seeking assistance with a crime will not be privileged. I thank the committee for that indulgence.

Ms HARTLAND (Western Metropolitan) -- I am quite confused by what has just been said, because during our briefing on this legislation we asked specifically about this matter, and we were told that the confessional was exempt.
I am not sure whether that is what Mr O'Brien did or did not just say.

Mr D. R. J. O'BRIEN (Western Victoria) -- The confessional is exempt except if the confession is made for a criminal purpose. That is the current law, which will remain in place after this bill is passed. That is why I wanted it placed on the record. I am not sure what happened in Ms Hartland's briefing, but I thought it was important that those matters be placed on the record. It is section 127 of the Evidence Act as it is presently drafted. The bill does not change that.
The ACTING PRESIDENT (Mr Elasmar) -- Order! Any related question should be addressed to the minister, and the minister should answer.
Ms HARTLAND (Western Metropolitan) -- Am I clear on this -- the confessional has not been exempted?
Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- The present exemptions, as currently detailed in the Evidence Act, are unchanged by this legislation.
Ms HARTLAND (Western Metropolitan) -- So the confessional is not exempt?
Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- There is an exemption in section 127 of the Evidence Act.

Let me read out the section:
127 Religious confessions
(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.
(2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.
There is a carve out to the general exemption when the confession is made for a criminal purpose. That is the existing legislation, and if this legislation passes the house, these new criminal offences will apply to subsection (2).
Ms HARTLAND (Western Metropolitan) -- I have just one more question. I am sorry; it is just that this is not what we were told in our briefing, and that is why we spoke to it in the debate. If a priest goes to another priest and divulges in confession that they have abused a child, that information that is related to the confessional priest can be used, so that priest should report that abuse?
 

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- I was not in the briefing provided by the department, but I presume that the advice Ms Hartland was provided with detailed that the legislation that is before the house today does not change section 127 of the Evidence Act and that the general rule, as articulated and as I stated before, has a carve out in subsection (2) where the privilege relating to religious confessions does not apply if the communication involved in the religious confession was made for a criminal purpose. Without going into specific examples, because they are hypothetical, each case will turn on its own facts. If the confession were made for a criminal purpose, then that exemption articulated in section 127(1) of the Evidence Act may not apply.

Ms HARTLAND (Western Metropolitan) -- I am going to try one more time. A priest goes to another priest in the confessional and divulges that he has abused a child.
Would that priest then be required to report that abuse of the child?

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- The test as it currently stands in the Evidence Act is unchanged by this bill, but of course these new criminal offences will also apply to the consideration of the exemption. The case Ms Hartland cites depends upon section 127(2) of the Evidence Act, which says, for the sake of repetition:
Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.

For a court determining the situation Ms Hartland poses today the question would be, 'Was the confession made for a criminal purpose?'. Of course I cannot provide a blanket yes or no answer to Ms Hartland's question, because that would be a matter for determination by a court.

As I say, this section of the Evidence Act is not being changed by this legislation, but we are creating new criminal offences to which section 127 would apply.

Ms HARTLAND (Western Metropolitan) -- I am going to try one more time. Is the minister telling me that if a priest goes to another priest in confession and admits that he has abused a child, that priest does not have to report that abuse?
Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- Ms Hartland is seeking a yes or no answer from me. I cannot provide that because the test as it currently exists in the Evidence Act would apply. Each situation would turn on its own facts, and a court would have to determine whether subsection (2) applies.

If the court determines that it does -- in other words, that the confession was made for a criminal purpose -- then maybe the shield of the confessional would not apply, but again I cannot give a yes or no answer to the question posed because it is hypothetical and would turn on the facts of each and every particular case. Again, I make the point that the Evidence Act as it currently applies will also apply to these new criminal offences.
Ms HARTLAND (Western Metropolitan) -- So a woman who does not report abuse and who is in an abusive situation may end up in jail for not reporting that abuse, but a priest who receives this evidence in the confessional may be exempted from being charged if that priest has not reported it to the police?

Hon. E. J. O'DONOHUE (Minister for Liquor and Gaming Regulation) -- Again, the situation that Ms Hartland proposes is hypothetical.

As has been stated by numerous government members during the second-reading debate, and as I said in response to Ms Mikakos regarding clause 4, the government believes that with the reasonable grounds carve-out that is provided we have an appropriate balance.
In relation to priests and the confessional, I can only reiterate what section 127 of the Evidence Act 2008 says, which I have read into Hansard on several occasions.
 

 

Committee divided on clause:

Ayes, 19
Atkinson, Millar, Coote, O'Brien, Crozier, O'Brien, Dalla-Riva, O'Donohue, Davis, Ondarchie, Elsbury, Peulich, Finn, Ramsay, Guy, Rich-Phillips, Koch, Ronalds, Lovell,
Noes, 15
Barber, Mikakos, Eideh, Pennicuik, Elasmar, Pulford, Hartland, Scheffer, Jennings, Somyurek, Leane, Tee, Lenders, Tierney, Melhem,

Pairs: Drum, ALP Vacancy. Kronberg, Viney.

 

Clause agreed to.
Postponed clauses 1 to 3 agreed to; clauses 5 to 9 agreed to.
Reported to house without amendment.
Report adopted.

Third reading
Motion agreed to.
Read third time.