How you had YourSay:

This consultation is currently closed for comment. The consultation was from 22 March to 4 May 2018.

Your views are being used to help deliver criminal law reform recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.

We are looking at:

On behalf of all Australians, the Royal Commission heard evidence of shocking and appalling abuse perpetrated on children by the very people who were supposed to care for them. The Royal Commission also examined how survivors recount the trauma of abuse through criminal proceedings.

The final report presents a thorough evidence base to change criminal laws and procedures in the ACT criminal justice system.

By changing the criminal laws and procedures we will provide a fairer and more respectful trial for survivors of sexual abuse, witnesses and the people accused.

We are seeking feedback on five (5) areas:

• Failure to Report laws
• Failure to Protect laws
• The way vulnerable witnesses give evidence
• An intermediary scheme
• Other reforms to trial and sentencing procedures for sexual offences

Your views are being used to:

The submissions we received will be used to help us develop criminal law reforms recommended by the Royal Commission into Institutionalised Responses to Child Sexual Abuse.

KEY QUESTIONS

• Should the ACT create a new criminal offence for failing to report suspected child sexual abuse?
• Should laws criminalising failure to report be targeted at people working in institutions?
• Should there be any exceptions to a new criminal offence for failure to report?

WHAT THE ROYAL COMMISSION RECOMMENDS

The Royal Commission has recommended that all jurisdictions introduce a targeted offence for failing to report institutional child sexual abuse, which would apply only to adults working as part of an institution that provides services to children.9

WHAT’S THE ISSUE?

The Royal Commission into Institutional Responses to Child Sexual Abuse found that adults who become aware of sexual abuse involving a child do not always report it to police, nor do they always take steps to protect the child from abuse’.1 The Royal Commission also revealed systemic practices of hiding child sexual abuse within institutions.2 Failing to report, or concealing child sexual abuse, has left vulnerable victims without protection. In some cases that behaviour has allowed the offender to commit further offences against other children.3

WHAT’S THE CURRENT LAW IN THE ACT?

There is no blanket legislation that requires all people in the ACT to report child sexual abuse if they become aware of it, and there is no criminal penalty for all people who fail to report. Some sectors of the community are subject to mandatory reporting laws, which require professionals like teachers, doctors and police to report child sexual abuse allegations to child protection agencies. The ACT’s mandatory reporting laws carries a maximum penalty of six months’ imprisonment4 for failing to report. The ACT also has a Reportable Conduct Scheme, which places an obligation on employers in workplaces dealing with children to report certain types of misconduct, including sexual misconduct involving a child, to the ACT Ombudsman. The Reportable Conduct Scheme will include religious institutions by 1 July 2018.5 Investigations, via the Reportable Conduct Scheme or mandatory reporting, may lead to police involvement but neither requires that allegations be reported directly to police. A new criminal offence could compel reporting to the police6 , to put a clear ‘focus on catching, prosecuting and convicting offenders’.7

WHAT’S THE POSITION IN OTHER JURISDICTIONS?

Both NSW and Victoria have offences that apply to people who fail to report child sexual abuse. However, the Royal Commission has recommended that such offences should apply only to institutions, not to all people, saying this will ‘assist to overcome any conflict between the institutional representative’s duty to report and their interest in seeking to protect the reputation of the institution’.

1 Commonwealth, Royal Commission, Criminal Justice Report Parts III – VI (2017) 133. 2 Commonwealth, Royal Commission, Criminal Justice Report Parts III – VI (2017) 146. 3 Commonwealth, Royal Commission, Criminal Justice Report Parts III – VI (2017) 133. 4 Children and Young People Act 2008 (ACT) s 356. 5 Reportable Conduct Scheme Discussion Paper: Extending the Scope of the Scheme in the ACT to help organisations become more child safe and child friendly, Chief Minister, Treasury and Economic Development Directorate http://www.cmd.act.gov.au/policystrategic/reportab... 6 Royal Commission, Criminal Justice Report, Parts III – VI (2017) 176. 7 Ibid 176, quoting Victorian Parliament, Family and Community Development Committee, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and other Non-government Organisations (2013, vol 2) 486. 8 Royal Commission, Criminal Justice Report, Parts III – VI (2017) 210.9 Recommendation 33, Royal Commission, Criminal Justice Report.

KEY QUESTIONS

The Royal Commission recommended that all jurisdictions introduce a targeted offence of failure to protect a child against institutional child sexual abuse.3

WHAT’S THE ISSUE?

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that all jurisdictions introduce a targeted offence of failure to protect a child against institutional child sexual abuse.1 This recommendation from the Royal Commission is aimed at improving the prevention of child sexual abuse. Current reporting requirements, like mandatory reporting and Reportable Conduct, are reactive in that they require an action after instances of child sexual abuse have occurred, but do not require any action to prevent them from occurring. The Royal Commission noted that ‘[i]t is not and should not be thought to be sufficient to wait until abuse occurs and then inform the police’.2 The Royal Commission says a new criminal offence should be created to emphasise the responsibility of individuals within an institution to act to protect children from known risks.

WHAT’S THE CURRENT LAW IN THE ACT?

Currently, there is no ‘failure to protect’ offence under the ACT criminal law.

WHAT’S THE POSITION IN OTHER JURISDICTIONS?

Victoria has an offence that covers the failure to protect a child from the risk of sexual abuse. The Royal Commission has endorsed the Victorian offence as a useful precedent for other jurisdictions like the ACT. The Victorian law says a person has committed an offence: • if they work for, or with, a relevant organisation; • if there is substantial risk that any relevant child under the age of 16 will become a victim of a sexual offence committed by an adult also associated with the organisation; • if the person knows the risk exists and has the power or responsibility within that organisation to reduce or remove that risk; and • if they fail to do so.

1 Recommendation 36, Royal Commission, Criminal Justice Report. 2 Royal Commission, Criminal Justice Report, Parts III – VI (2017) 246. 3 Recommendation 36, Royal Commission, Criminal Justice Report.

KEY QUESTIONS

• Should the ACT introduce new legislation on pre-trial hearings and evidence, as part of an effort to strengthen protections for vulnerable witnesses and others in the criminal justice system?
• How should the Royal Commission’s evidence about vulnerable people be extended to vulnerable people who are accused of a crime?

WHAT THE ROYAL COMMISSION RECOMMENDS

The Royal Commission recommends that the availability of pre-trial hearings should be extended to adult victims of historic child sexual abuse and to other witnesses as the prosecution considers necessary, such as family members4 . The Royal Commission also recommends that where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure.5

WHAT’S THE ISSUE?

The Royal Commission into Institutional Responses to Child Sexual Abuse made a number of recommendations to ensure that all people are able to participate in the criminal justice system fairly. The recommendations about evidence, and the trial process, are based on the premise that procedures should be adjusted to recognise and respond to the vulnerabilities of children, survivors, and others who are involved in a court response to sexual abuse. These changes will have an impact on the way people who are accused of sexual offences defend themselves in court, and that impact will largely be to constrain and manage some of the avenues that have traditionally been open to test evidence and cross-examine witnesses. The Royal Commission’s work is aimed at creating a justice system that ensures the vulnerabilities that survivors, children, and others do not become an avenue for further trauma, or a barrier to achieving a just court outcome.

EXTENDING THE USE OF PRE-RECORDED EVIDENCE

Pre-trial hearings are a special measure that are available to all child witnesses (including complainants) in sexual offence proceedings. These child witnesses can have their evidence pre-recorded at a pre-trial hearing and then played at the trial. The Royal Commission found that pre-recording a witness’s evidence is likely to have clear benefits such as obtaining evidence earlier, avoiding stressful delays for vulnerable witnesses, and being able to use the evidence again in any retrials without re-traumatising the witness. For that reason, the Royal Commission proposed that those survivors should be eligible for a pre-trial hearing. The advantages that exist for the child pre-recording their evidence may be missed if other witnesses are not able to also pre-record evidence. Carers and family members are told not to discuss the abuse with their child until the court proceedings are finished, to ensure that there is no contamination of the evidence. However, this means that the discussion of the abuse, which may be essential to the child’s recovery, currently cannot take place until after the child’s parents have given evidence at the trial.

GROUND RULES HEARINGS

A ground rules hearing is a pre-trial proceeding where rules for questioning vulnerable witnesses are established. Examples can include rules about the way questions are asked, what sorts of things need to be put to a witness, and whether breaks or other support measures are necessary for the witness. This is fundamentally about ensuring that the Court process is sensitive to the vulnerabilities of people giving testimony in a sexual offence case.

Ground rules provide for a less stressful experience for the witness, and may narrow the issues to be taken by the parties, thus improving the efficiency of the trial. 1 The Royal Commission recommended that state and territory governments, in conjunction with courts administration, should ensure that ground rules hearings are held in order to discuss how prosecution witnesses will be questioned.2 This should occur at a pre-trial stage in proceedings.

There are significant implications in changes to trial proceedings for the rights of people to mount a defence against sexual offence charges, and it is important to recognise that people accused can also be vulnerable. One suggestion put to the Royal Commission was that ground rules hearings be available in relation to the questioning of a vulnerable accused.3

The principle behind the ACT’s consideration of these changes will be to ensure that the Court process is focused on a fair and truthful outcome, and that necessarily requires measures to ensure that a defence can be heard.

WHAT’S THE CURRENT LAW IN THE ACT?

To reduce trauma and to capture quality evidence for the court, the ACT has a broad range of ‘special measures’ to support victims and witnesses. Pre-recorded evidence can be used in sexual offence, domestic and family violence cases and the ACT has been a leader in that respect. The foundations of using pre-recorded evidence were introduced in the ACT in 2008. Another example of support for vulnerable people is the ACT’s system of permitting all complainants of sexual offences and children to give evidence from a remote room, to have the police interview played as the evidence instead of having to give evidence again, and to have a support person with them in the remote room or in court. Adopting the Royal Commission’s recommendations about pre-trial procedures would take the ACT further in terms of protections for vulnerable witnesses, and it would place further restrictions on the way criminal defences are conducted.

WHAT’S THE POSITION IN OTHER JURISDICTIONS?

The special measures available in other jurisdictions vary, and are under development. The Royal Commission looked closely at models in England and Wales, and there are evaluations underway across Australia that will offer an evidence base for future reforms. New South Wales, for example, is conducting a child sex offence pilot program that tests many procedures considered by the Royal Commission, including “ground rules” hearings. The Child Sexual Offence Evidence Pilot in NSW began in 2016 for a 3 year term, and while still underway, submissions to the Royal Commission about its beneficial impact on children in the court process show promise for broader adoption. Further detail can be found in the fact sheet on Intermediaries.

1 Royal Commission, Criminal Justice Report, Parts VII - X and Appendices (2017) 99. 2 Recommendation 60, Royal Commission, Criminal Justice Report. 3 Victoria Legal Aid, Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation paper: Criminal justice, 2016, p 10.4 Royal Commission, Criminal Justice Report, Parts VII - X and Appendices (2017) 90. . 5 Recommendation 54, Royal Commission, Criminal Justice Report

KEY QUESTIONS

• Should an intermediary scheme be introduced in the ACT?

WHAT THE ROYAL COMMISSION RECOMMENDS

The Royal Commission has recommended that state and territory governments establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales2and identified the following important features of the scheme:

• Intermediaries should have relevant professional qualifications to assist in communicating with vulnerable witnesses.
• Intermediaries should be provided with training in their role and understand that their duty is to assist the court to communicate with the witness and to be impartial.
• Intermediaries should be available at both the police interview stage and trial stage.
• Intermediaries should be able to provide recommendations to police and the court on how best to communicate with the witness and be able to intervene in an interview or examination where they observe a communication breakdown.3

WHAT’S THE ISSUE?

A key theme of the Royal Commission’s work on trial procedures is the recognition that vulnerable people need special consideration and attention to ensure their voices are heard. That consideration and attention is not properly part of an effort to prosecute or defend, as it should be focused on the vulnerable person, rather than adversarial.

There are numerous models internationally for a role in the Court process that is impartial, and in England and Wales that role is called an intermediary.

An intermediary is someone who can help with communication when victims, witnesses and people accused of a crime are engaging with the justice system both pre-trial and throughout the process. They are independent, and do not prosecute nor defend the case. Their role is to ensure that the needs and vulnerabilities of a witness are clearly communicated to the Court, and taken into account at every step during the course of a trial.

Witnesses who may benefit from the support of an intermediary could include children and people with a disability. The role of the intermediary does involve significant changes to the way that people accused may put on a defence. In practice, it would mean much more detail about the questions a person accused of a sexual offence will have to be disclosed before they are asked. Details of the case an accused person plans to put before a jury would be disclosed to a greater degree than at present.

WHAT’S THE CURRENT LAW IN THE ACT?

Victims Support ACT, the Director of Public Prosecutions, and ACT Policing all have support services available for victims and witnesses to help in preparing for court cases and with staying informed. Intermediaries differ from victims and witness support programs available currently in the ACT because they would be directly involved in the investigation of complaints and the conduct of a trial.

WHAT’S THE POSITION IN OTHER JURISDICTIONS?

The Royal Commission drew heavily in its recommendations on the experiences of England and Wales in operating their system of registered intermediaries. Since 2008, professionals with expertise in assisting vulnerable witnesses have been engaged as intermediaries there.

Intermediaries are registered, and can be called on by police to assist when an investigation into a sexual offence begins. They assist vulnerable witnesses throughout the criminal justice process. The intermediary can intervene in court proceedings where a communication breakdown with a vulnerable person is likely, including by suggesting issues with questions going to a witness.

In England and Wales, intermediaries are available to all people under 18 and to adults with communication disorders. There are Australian experiences and pilots to draw on in considering an intermediary scheme as there are with ground rules hearings.

A three-year pilot scheme providing for the pre-recording of evidence and witness intermediaries for child complainants started in Newcastle and Sydney on 31 March 2016 under the administration of Victims Services (Department of Justice). In the first
12 months of the pilot, 762 complainants and witnesses participated, with most receiving assistance during police interviews and testimony for the court. Almost 60 court evidence hearings were pre-recorded. A process evaluation was recently conducted which showed strong support for the pilot and no significant barriers to implementation were identified.1

In addition to the NSW pilot scheme, South Australia and Western Australia both have schemes to assist with communication. The Western Australian scheme is available only to children and there is no limitation on who can perform intermediary tasks or what type of proceedings they may assist in. The South Australian intermediaries are approved volunteers who can be appointed by the Minister or the court, while the NSW intermediaries are paid professionals managed by NSW Victims Services.

1 Judy Cashmore, Ilan Katz, Rita Shackel and Kylie Valentine, 2017, Evaluation of the Child Sexual Offence Evidence Pilot: Process Evaluation report, Social Policy Research Centre, UNSW Australia http://www.victimsservices.justice.nsw.gov.au/Docu...2 Recommendation 59, Royal Commission, Criminal Justice Report. 3 Recommendation 59, Royal Commission, Criminal Justice Report.

KEY QUESTIONS

Should ACT laws about evidence, and how evidence is considered by Courts and juries, be reformed with a focus on ensuring outcomes that match evidence about survivor testimony, even where this means evidence that wouldn’t normally be admitted to court gets considered?

WHAT THE ROYAL COMMISSION RECOMMENDS

The Royal Commission made a series of technical recommendations about how to reform trial procedures to ensure accurate fact finding and fairness. These recommendations involved a detailed analysis of the fundamentals of the criminal justice system and how the right of an accused person to a fair trial intersects with the pursuit of truth, and the equally important rights of survivors of sexual abuse to a fair trial.

How evidence is presented of the circumstances of abuse, how courts give direction to juries in considering that evidence, and how decisions are made about sentencing were all thoroughly considered. The ACT Government’s work to implement the
Royal Commission will be focused on engagement with legal practitioners, both prosecuting and defending, and the community to ensure that the rules in place for trials reflect best practice in terms of arriving at a fair, impartial outcome in criminal trials.

OTHER REFORMS

• Reform of Tendency and Coincidence
• Reform of Judicial Directions and Warnings
• Sentencing Standards in Historical Cases

To read the background on each of these reforms, please read the Other Reforms to Trial and Sentencing Procedures for Sexual Offences Information Sheet.