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TASMANIA
__________
CRIMINAL CODE AND RELATED LEGISLATION
AMENDMENT (CHILD ABUSE) BILL 2018
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - CHILDREN, YOUNG PERSONS AND THEIR FAMILIES
ACT 1997 AMENDED
3. Principal Act
4. Section 14 amended (Informing of concern about abuse or
neglect or certain behaviour)
5. Section 16 amended (Confidentiality of person informing of
knowledge, belief or suspicion of abuse or neglect or certain
behaviour)
PART 3 - CRIMINAL CODE ACT 1924 AMENDED
6. Principal Act
7. Schedule 1 amended (Criminal Code)
PART 4 - EVIDENCE (CHILDREN AND SPECIAL WITNESSES) ACT
2001 AMENDED
8. Principal Act
9. Section 3 amended (Interpretation)
10. Part 2: Heading amended
11. Section 6 amended (Application for order for special hearing)
[Bill 63]-VII
12. Section 6A amended (Special hearing to take and record affected
person's evidence in full)
13. Section 7A amended (Audio visual record of evidence given at
trial)
14. Section 7B amended (Audio visual record may be admitted into
evidence)
15. Section 7C amended (Possession or dealing in video-taped
evidence)
16. Section 7D inserted
7D. Viewing of video-taped evidence by law reform
body
17. Section 8 amended (Special witness)
18. Section 9A inserted
9A. Special hearing in proceedings for child sexual
offence
PART 5 - SENTENCING ACT 1997 AMENDED
19. Principal Act
20. Section 4 amended (Interpretation)
21. Section 11 amended (Court may impose single, general or mixed
sentence)
22. Section 11A amended (Matters to be taken or not taken into
account in sentencing certain sexual offenders)
PART 6 - REPEAL OF ACT
23. Repeal of Act
2
CRIMINAL CODE AND RELATED LEGISLATION
AMENDMENT (CHILD ABUSE) BILL 2018
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Children, Young Persons and Their
Families Act 1997, the Criminal Code Act 1924, the
Evidence (Children and Special Witnesses) Act 2001 and the
Sentencing Act 1997
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Criminal Code and
Related Legislation Amendment (Child Abuse)
Act 2018.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 63] 3
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 3 Part 2 - Children, Young Persons and Their Families Act 1997 Amended
PART 2 - CHILDREN, YOUNG PERSONS AND THEIR
FAMILIES ACT 1997 AMENDED
3. Principal Act
In this Part, the Children, Young Persons and
Their Families Act 1997* is referred to as the
Principal Act.
4. Section 14 amended (Informing of concern about
abuse or neglect or certain behaviour)
Section 14 of the Principal Act is amended as
follows:
(a) by inserting the following paragraphs
after paragraph (j) in the definition of
prescribed person in subsection (1):
(ja) a member of the clergy of any
church or religious denomination;
and
(jb) a member of the Parliament of
this State; and
(b) by omitting "persons." from paragraph (l)
of the definition of prescribed person in
subsection (1) and substituting
"persons;";
_______________________________________________________________
*No. 28 of 1997
4
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 2 - Children, Young Persons and Their Families Act 1997 Amended s. 5
(c) by inserting the following definition after
the definition of prescribed person in
subsection (1):
religious confession has the same
meaning as in section 127 of the
Evidence Act 2001.
(d) by inserting the following subsection
after subsection (6):
(7) Despite section 127 of the
Evidence Act 2001, a member of
the clergy of any church or
religious denomination is not
entitled to refuse to comply with
subsection (2) on the grounds that
he or she formed the belief or
suspicion or gained the
knowledge as a consequence of
information communicated to that
member of the clergy during a
religious confession.
5. Section 16 amended (Confidentiality of person
informing of knowledge, belief or suspicion of abuse
or neglect or certain behaviour)
Section 16 of the Principal Act is amended as
follows:
(a) by inserting the following definition
before the definition of notifier in
subsection (1):
5
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 5 Part 2 - Children, Young Persons and Their Families Act 1997 Amended
law enforcement agency means -
(a) the Police Service or the
police force of another
State or a Territory or of
an overseas jurisdiction;
or
(b) any other authority or
person responsible for the
investigation or
prosecution of offences
against the laws of the
State or of the
Commonwealth, another
State or a Territory or an
overseas jurisdiction;
(b) by omitting from subsection (2)(c)
"subsection (3)." and substituting
"subsection (3); or";
(c) by inserting the following paragraph after
paragraph (c) in subsection (2):
(d) is made to a law enforcement
agency.
6
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 3 - Criminal Code Act 1924 Amended s. 6
PART 3 - CRIMINAL CODE ACT 1924 AMENDED
6. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
7. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following section after
section 105:
105A. Failing to report the abuse of a child
(1) In this section -
abuse offence means the
following:
(a) an offence against
section 124, 125,
125A, 125B, 125C
125D, 126, 127,
129, 130, 130A,
133, 157, 158,
159, 165A, 166,
170, 172, 175,
176, 177, 178,
178A or 178B;
_______________________________________________________________
*No. 69 of 1924
7
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 7 Part 3 - Criminal Code Act 1924 Amended
(b) an offence under
chapter XIX or
XX;
(c) an offence of
attempting to
commit an offence
referred to in
paragraph (a) or
(b);
(d) an offence under a
previous
enactment that is
substantially
similar to an
offence referred to
in paragraph (a),
(b) or (c);
child means a person under the
age of 18 years;
proper authority has the same
meaning as in section
162A;
religious confession has the
same meaning as in
section 127 of the
Evidence Act 2001.
(2) A person is guilty of a crime if
the person -
8
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 3 - Criminal Code Act 1924 Amended s. 7
(a) has information that leads
the person to form a
reasonable belief that an
abuse offence has been
committed against another
person who was a child at
the time of the alleged
offence; and
(b) fails without reasonable
excuse to disclose that
information to a police
officer as soon as
practicable.
Charge: Failing to report the abuse
of a child.
(3) A person is not guilty of an
offence under subsection (2) if -
(a) the information was
obtained by that person
when he or she was a
child; or
(b) the alleged victim of the
offence to which the
information relates had
attained the age of 18
years at the time the
information was obtained
by the person and the
person believes on
reasonable grounds that
9
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 7 Part 3 - Criminal Code Act 1924 Amended
the alleged victim does
not wish the information
to be reported to a police
officer.
(4) Without limiting the matters that
may constitute a reasonable
excuse for the purposes of
subsection (2), a person has a
reasonable excuse for failing to
comply with that subsection if -
(a) the person fears on
reasonable grounds that
disclosing the information
would endanger the safety
of any person (other than
the person reasonably
believed to have
committed, or to have
been involved in, the
child abuse offence); or
(b) subject to subsection (5),
reporting the information
would disclose
information in respect of
which there is a lawful
claim or right of privilege;
or
(c) the person believes on
reasonable grounds that -
10
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 3 - Criminal Code Act 1924 Amended s. 7
(i) another person has
already reported
the information to
a proper authority;
or
(ii) a proper authority
already has the
information; or
(d) the information is
generally available to
members of the public.
(5) Despite section 127 of the
Evidence Act 2001, a member of
the clergy of any church or
religious denomination is not
entitled to refuse to disclose
information under subsection (2)
on the grounds that the
information was communicated
to that member of the clergy
during a religious confession.
(6) A prosecution for an offence
against subsection (2) is not to be
commenced without the written
authority of the Director of Public
Prosecutions.
(b) by inserting in section 125D(1) ", and to
any person," after "means";
(c) by inserting in section 125D(3) ", and to
any person," after "means";
11
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 7 Part 3 - Criminal Code Act 1924 Amended
(d) by omitting subsection (5) from section
125D and substituting the following
subsection:
(5) It is a defence to a charge under
this section to prove that the
person whom the accused person
intended to procure to engage in
an unlawful sexual act or to
expose to indecent material -
(a) was of or above the age of
15 years and the accused
person was not more than
5 years older than that
person; or
(b) was of or above the age of
12 years and the accused
person was not more than
3 years older than that
person.
(e) by inserting the following subsection
after subsection (2) in section 461:
(3) The omission of section 18(3) to
this Act by the amending Act is
to be taken to have effect from
4 April 1924.
(f) by inserting the following section after
section 461:
12
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 3 - Criminal Code Act 1924 Amended s. 7
462. Application of Criminal Code and
Related Legislation Amendment (Child
Abuse) Act 2018
Section 105A, as inserted by the
Criminal Code and Related
Legislation Amendment (Child
Abuse) Act 2018, applies in
respect of information obtained
on or after the commencement of
that Act, including if that
information relates to a child
abuse offence that occurred or
may have occurred before the
commencement of that Act.
13
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 8 Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended
PART 4 - EVIDENCE (CHILDREN AND SPECIAL
WITNESSES) ACT 2001 AMENDED
8. Principal Act
In this Part, the Evidence (Children and Special
Witnesses) Act 2001* is referred to as the
Principal Act.
9. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by omitting paragraph (ba) from the
definition of affected child;
(b) by inserting the following paragraphs
after paragraph (c) in the definition of
affected child:
(ca) who has witnessed the following:
(i) a crime referred to in
paragraph (b)(i);
(ii) a crime under section 158
or 159 of the Criminal
Code; or
(cb) who is giving, or is to give,
evidence in respect of a child
sexual offence;
_______________________________________________________________
*No. 79 of 2001
14
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended s. 10
(c) by inserting the following definition after
the definition of affected child:
affected person means the following:
(a) an affected child;
(b) a person who has attained
the age of 18 years upon,
or in respect of whom, a
child sexual offence was
committed, or is alleged
to have been committed,
when the person was a
child;
(d) by inserting the following definition after
the definition of child:
child sexual offence means an
offence, committed in relation to
a child, against section 124, 125,
125A, 125B, 125C, 125D, 126,
127, 129, 130, 130A, 133 or 185
of the Criminal Code;
10. Part 2: Heading amended
Part 2 of the Principal Act is amended by
omitting "EVIDENCE OF CHILDREN AND
SPECIAL WITNESSES" from the heading to
that Part and substituting "EVIDENCE OF
AFFECTED PERSONS AND SPECIAL
WITNESSES".
15
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 11 Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended
11. Section 6 amended (Application for order for
special hearing)
Section 6(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a) "child's"
and substituting "person's";
(b) by omitting from paragraph (b) "child"
and substituting "person".
12. Section 6A amended (Special hearing to take and
record affected person's evidence in full)
Section 6A of the Principal Act is amended by
omitting "a child's" and substituting "an affected
person's".
13. Section 7A amended (Audio visual record of
evidence given at trial)
Section 7A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "child"
and substituting "person";
(b) by omitting from subsection (1) "child's"
and substituting "person's";
(c) by omitting from subsection (2) "child"
and substituting "person".
16
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended s. 14
14. Section 7B amended (Audio visual record may be
admitted into evidence)
Section 7B of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) A judge is to admit an audio visual
record made under this Part into evidence
in a later civil or criminal proceedings if
the judge is satisfied that -
(a) the audio visual record is relevant
to the later proceeding; and
(b) admission of the evidence would
not be contrary to the interests of
justice.
15. Section 7C amended (Possession or dealing in video-
taped evidence)
Section 7C(3) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) in the case of a police officer, or any
other person as authorised by the
Commissioner of Police, for a purpose
connected with the training and
evaluation of a police officer who was
involved in the making of the audio
visual recording; or
17
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 16 Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended
16. Section 7D inserted
After section 7C of the Principal Act, the
following section is inserted in Part 2:
7D. Viewing of video-taped evidence by law
reform body
(1) In this section -
law reform body means a body or
organisation prescribed for the
purposes of this definition.
(2) The Attorney General may, on
application by a law reform body,
approve the viewing of an audio visual
recording of evidence by members of
that body for the purposes of a review
into the laws of evidence by that body.
(3) An approval under subsection (2) may be
subject to such conditions as the
Attorney-General considers appropriate.
(4) If a person has authority to possess and
use an audio visual recording of evidence
under section 7C, that person also has
authority to play that recording to a
member of a law reform body if -
(a) the playing of the audio visual
recording of evidence is in
accordance with an approval
under subsection (2); and
18
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended s. 17
(b) all legal proceedings in relation to
the evidence given in the audio
visual recording have been
concluded; and
(c) the witness giving evidence in the
audio visual recording has-
(i) been de-identified in the
audio visual recording; or
(ii) in the case of a witness
who has attained the age
of 18 years, consented to
the use of the recording
by the law reform body.
17. Section 8 amended (Special witness)
Section 8(2)(b)(iib) of the Principal Act is
amended by omitting "child" and substituting
"person".
18. Section 9A inserted
After section 9 of the Principal Act, the
following section is inserted in Part 5:
9A. Special hearing in proceedings for child
sexual offence
(1) In a proceeding for a child sexual
offence, a judge may make any one or
more of the following orders in relation
19
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 18 Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended
to a witness if the judge is satisfied that it
is in the interests of justice to do so:
(a) an order that a special hearing be
held to take and record evidence
as if the witness were an affected
person in respect of whom
section 6 applies;
(b) if an order is made under
paragraph (a), an order that the
witness not be present at the trial.
(2) Without limiting the matters that may be
taken into account in determining the
interests of justice under subsection (1),
the following matters are to be taken into
account for that purpose:
(a) whether the unavailability of the
witness to give evidence in the
ordinary manner would cause
undue delay in prosecution;
(b) whether the giving of evidence in
the ordinary manner by a witness
might, because of the
relationship between that witness
and another witness, cause that
witness or the other witness
emotional trauma or distress.
(3) An order made under subsection (1) may
be made on the application of the
prosecutor.
20
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 4 - Evidence (Children and Special Witnesses) Act 2001 Amended s. 18
(4) The defendant is to be served with a copy
of, and is entitled to be heard on, an
application for an order under
subsection (1).
21
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 19 Part 5 - Sentencing Act 1997 Amended
PART 5 - SENTENCING ACT 1997 AMENDED
19. Principal Act
In this Part, the Sentencing Act 1997* is referred
to as the Principal Act.
20. Section 4 amended (Interpretation)
Section 4 of the Principal Act is amended by
inserting after the definition of Chief Forensic
Psychiatrist the following definition:
child sexual offence means an offence,
committed in relation to a person under
the age of 17 years, against section 124,
125, 125A, 125B, 125C, 125D, 126, 127,
129, 130, 130A, 133 or 185 of the
Criminal Code;
21. Section 11 amended (Court may impose single,
general or mixed sentence)
Section 11 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(3) If a court imposes a single sentence on an
offender for more than one child sexual
offence, the court is to identify the
sentence that would have been imposed
_______________________________________________________________
*No. 59 of 1997
22
Criminal Code and Related Legislation Amendment (Child Abuse)
Act 2018
Act No. of 2018
Part 5 - Sentencing Act 1997 Amended s. 22
for each child sexual offence, had
separate sentences been imposed.
22. Section 11A amended (Matters to be taken or not
taken into account in sentencing certain sexual
offenders)
Section 11A of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(3) In determining the appropriate sentence
for an offender convicted of a child
sexual offence, the court is to take into
account the sentencing patterns and
practices at the time of sentencing.
23
Criminal Code and Related Legislation Amendment (Child
Abuse) Act 2018
Act No. of 2018
s. 23 Part 6 - Repeal of Act
PART 6 - REPEAL OF ACT
23. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
24 Government Printer, Tasmania