Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018

Ms WEBB (Nelson) – Mr President, I thank the Government for bringing this amendment bill forward and all the work that went into preparing it.

I regard the protection of children in our community as a shared responsibility of the highest importance for all citizens, most especially for those of us here who have the opportunity to create the most robust legislative protections and access to justice for our children and, in fact, all members of our community.

The royal commission has provided us with recommendations on how we might legislate not only to help protect our children and prevent abuse, but also to improve the investigation, prosecution and sentencing of perpetrators, and with respect and acknowledgement of all victims of child abuse, improve their access to justice and support.

I am pleased to see solid consensus on progressing this in Tasmania, across politicians from all parties and in both places. Today I add my support to this bill. First, I note that the amendments are not primarily designed to act as a prosecutorial tool, as we have been told, but to be protective of vulnerable children and to heighten protection, both for children who have already been victimised and also to avert abuse from the beginning.

In making these amendments, we are aiming to prevent abuse from occurring. That is really important, but it is also highly important to be able to act as quickly as possible to curtail abuse once it has occurred.

I will briefly mention some of the changes and additions I want to speak in support of, before talking in more detail about others. The creation of the new crime of failure to report, I believe, creates a more robust assurance that appropriate action will be taken when a disclosure is made. It better indicates the gravity with which we regard such a failure to be – its gravity and the expectation that it should never occur. Disclosure is made and a report is made and acted on. The main purpose of this new crime of failure to report is to protect children and to stop abuse continuing in the spirit of all these amendments.

The fact there is a reasonable belief requirement means it is not going to be taken lightly. I note there are other appropriate protections: in not applying to children who receive information; in not applying if the report is made by a victim who is now an adult and does not wish that disclosure to be made public; and in the fact that it must be actioned only under the Director of Public Prosecutions and requires a fairly high bar to be acted on. I support the creation of that new crime of failure to report.

The extension of grooming offences better catches those situations we know to exist in relation to grooming behaviour, and is an excellent addition. The targeting of family members as an avenue to obtaining access to a child is well documented and known, and being able to better capture that under the grooming offences is an excellent addition.

Likewise, the change made by strengthening evidence-giving measures, with pre-recorded audiovisual evidence to be used as a tool in all child sexual abuse trials, is highly sensible and compassionate, as a measure to minimise the trauma of multiple trials and multiple instances of having to give evidence. I think that is an excellent addition.

I am very pleased to see the inclusion of members of parliament as mandatory reporters. I see this as entirely appropriate. As a very new member, I have not yet been in a position to have to enact that sort of action, but my understanding from colleagues is that there may well be times when as members we are made aware of or encounter situations where child abuse may be occurring, and it is very important that we are included as mandatory reporters. With this new requirement I look forward to all of us in this Chamber being provided with guidance on the appropriate actions and process to undertake in those circumstances. I hope we can have that guidance provided.

I take comfort from the fact that the changes made in this amendment bill mean that Tasmania will have one of the most extensive lists of occupations requiring mandatory reporting in the country. That is an excellent point of progress for us. I note, interestingly, that the Northern Territory simply requires four adults to report, and I think there is merit in that approach also.

The point of more discussion on this issue in the public domain and here today is the inclusion of members of religious ministry as mandatory reporters, and in doing so, removing the seal of the confessional. I understand the sensitivity of this matter for some members of the Catholic Church – and indeed I too was raised in the Catholic Church, so I have an intimate understanding of it from my very earliest times. Even understanding that sensitivity, I believe fundamentally it is not incumbent on us, as secular legislators, to prioritise the preservation of a religious practice above our responsibility to act in the best interests of our community, especially in the best interests of vulnerable children.

I note there are a range of objections from the Catholic Church, nationally and also locally, including through the Tasmanian Catholic Archbishop. I note he has claimed the legislation could lead to disharmony between state and federal laws in the future. Clearly that is not the case. We know that many states and territories are already acting on this in a concerted way to legislate mandatory reporting laws and remove religious exemptions. We know the ACT has moved in that direction, as have Western Australia and Victoria, so we are one among many. In fact what we are doing is bringing ourselves into harmony with a concerted national approach and consensus.

However, it would be my assertion that even were other states not yet moving on this, I would wholeheartedly be in support of Tasmania taking the lead and acting on it as promptly as possible. There should not be an impediment to doing the right thing as early as possible when it comes to protecting vulnerable children by saying we do not want to be first. The sooner we act, the more opportunity we will have to offer better protection to our children.

Another objection raised by the Catholic Church is that these measures impinge upon religious freedom and the sanctity of the confessional. Despite national rhetoric around religious freedom at the moment, it has been pleasing to see both sides of the political divide and many independents in Tasmania join together to acknowledge that the protection of children is paramount. There are no exceptions to mandatory reporting, religious or otherwise.

Freedom of religion has been raised; there has been discussion from the member for Murchison and others of the sections of the Tasmanian Constitution and our national laws that relate to that. I believe that the matter of religious freedom has been well prosecuted and has been shown to be not an argument to defend the secrecy of the confessional. I fully recognise the thorough coverage given to this by the Attorney-General in her summing up of the debate in the other place as to why this argument holds no water. I am not repeating that here other than to add my support to those arguments.

Something we may bear in mind is that the intent of these amendments in this bill are not primarily designed to act as a prosecutorial tool, but to protect vulnerable children. My understanding is that the evidence from the royal commission indicates that historically the secrecy of the confessional, rather than providing an avenue to curtail sexual abuse of children, has served to enable its continuation, in many cases for decades. That is, despite multiple instances of the perpetrators receiving the sacrament of confession, their abuse of children continued and in many cases was enabled because of the comfort provided by the sacrament of confession. This is highly relevant in my mind on whether this is a defensible position to claim the continuance of secrecy when it comes to the confessional.

A range of other points were raised by the Catholic Church on this matter. They have talked about, and the member for Murchison went into some detail on this, the Catholic Church taking its own measures in regard to safeguarding and coming out with guidelines. That is good, but it is not good enough. There is nothing satisfactory for us as secular legislators in our own justice system; there is nothing satisfactory about internal measures being taken and safeguards being taken within the Catholic Church. It was not good enough in times past; it is not good enough now and it holds no water for our arguments here.

Another point put forward is that confidentiality is essential for the sanctity of the sacrament of confession. This is entirely immaterial for our purposes as legislators in a secular society. It is not for us as legislators to maintain any aspect of any religious practice in this country.

It has also been said that confidentiality within the confessional process is comparable to other professions that have a client confidentiality arrangement. The example put forward is lawyers. That is certainly the one that has been put to us in the briefings and the situations I have attended.

We could quite rightly note that doctors are not used as an example here because we know that the patient-doctor confidentiality is absolutely trumped by mandatory reporting. Doctors are mandatory reporters. They cannot claim confidentiality as a reason not to report. The church cannot use doctors as an example, and it does not. They use lawyers instead. However, the lawyer-client confidentiality is not absolute either. It has clear parameters. It extends as far as information received for the purposes of obtaining legal advice and does not extend beyond that. There is no comfort there for the Church to try to compare itself to lawyers or other professions. Also, quite frankly, lawyers operate within a secular system we have set up to enable a justice system that operates to enforce the laws of our community. It is entirely a secular process. It is not comparable to a religion that has set up its own practices and applies to a small group of people in a voluntary manner.

Another matter raised with us by the Catholic Church relates to the fact that the purpose of confession is, on its assertion, to get a person to change their behaviour. I would state categorically it is immaterial for our purposes here as legislators as to the intent of confession as a practice – entirely irrelevant. It is immaterial for our purposes as legislators whether the act of confession is successful or otherwise in its stated intent.

We have had significant questions raised for us through the royal commission process and otherwise as to whether the level of success in confession in getting people to change their behaviour is even worth discussing but for us it is actually immaterial. It is immaterial for our purposes as legislators whether people would be deterred from engaging in confession by removing the seal of secrecy, which has been put to us as a reason not to do it. We should not remove that seal of secrecy because then people might not come to confession and, by their logic, not have an avenue to change. It is immaterial to our purposes. Our focus is on secular laws relating to the prioritisation of vulnerable children and their protection and nothing to do with a religious practice trumps that, or should be put above that.

A further objection raised by the Archbishop of Tasmania was that priests cannot comply with the law as it would require them to violate their vows to a higher authority. We have also heard that this week from Victoria and the archbishop there.

Again, and let me state quite clearly, it is our role to make appropriate laws in the best interests of our community and it is not required that we make these laws in alignment with, or support of, any particular religious belief or practice.

I would be interested to hear from the Leader what implementation strategies, if any, could help us ensure priests do not ignore these laws. That could be helpful to consider going forward but neither the argument that priests may not comply nor the argument that this will provide a barrier to people accessing the sacrament of confession offer compelling reasons for us to give a continued exemption from mandatory reporting to the situation of the confessional.

Let me just repeat: while I understand the sensitivity of this for people of the Catholic faith who see this as a sacrament in their faith, I believe fundamentally it is not incumbent on us as secular legislators to prioritise the preservation of their religious practice above our responsibility to act in the best interests of our community and especially in the best interests of vulnerable children. For all those reasons and because I believe it is excellent progress in that protection of vulnerable children, I support this bill and thank the Government for bringing it to us.