New laws miss opportunity

8 September 2020

By Dr Lee-Anne Perry AM

The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill currently before the Queensland Parliament offers many opportunities to improve the way we protect the most vulnerable in our community but it also represents a lost opportunity to protect some young people from predatory behaviour by those in positions of authority.

While our Criminal Code provides that consent is not freely given if obtained by exercise of authority, this provision only applies to serious offences such as rape.

In Queensland it remains legal for a teacher or sports coach (or people in similar school roles) to enter into a consensual relationship with a student above the age of 16.

These situations are rare but not unknown and are well outside what most of us would expect from our children’s teachers or school staff.

While such cases may lead to disciplinary action against the adult, the behaviour does not constitute a criminal offence.

This would leave most Queensland parents rightly feeling that the adult had used their position of authority to develop the relationship and had breached the trust placed in them by the student, their family and the school.

The Royal Commission into Institutional Responses to Child Sexual Abuse recognised the risks posed to young people by these situations and concluded that our response as a community needs to be stronger.

It recommended that jurisdictions, such as Queensland introduce Position of Authority offences in legislation.

Adults who work in schools have a relationship of special care over students that makes it inappropriate for them to engage in intimate relationships with a 16 or 17-year-old in any circumstances.

While the existing disciplinary pathway for dealing with these matters may seem sufficient, the inability to pursue criminal offences means no complaint is ever made to police, no charge ever laid, and no case prosecuted.

When offending behaviour occurs, the adult can simply resign, leaving no trail in the legal system.  They are free to move on to the next school or sports club or other organisation and engage in the same behaviour without any pattern of wrongdoing being established.

This limits the ability of professional associations and regulatory bodies like Blue Card Services from taking any action in the context of employment screening processes.

Other jurisdictions including New South Wales and the Australian Capital Territory have already recognised the need to legislate to make it illegal for anyone in a relationship of special care to engage in a sexual relationship with someone in their care regardless of consent.

It is curious then that Queensland Government has chosen not to include Position of Authority offences in a bill currently before Parliament aimed at implementing other Royal Commission recommendations.

The Government has not ruled out introducing such legislation in the future, but the question is why not now when the opportunity is right in front of us?

It is hard to see how anyone other than those engaged in inappropriate relationships would be worse off if the Government acted now to implement this recommendation of the Royal Commission.

For young people to flourish in their education they need to be able to engage freely in learning and not be hampered by the complexities of relationships forced on them by those in positions of authority.

Similarly, those whose job it is to care for and support young people should know that if they misuse their authority there will be consequences that come with the full force of the law.

It is to be hoped that the next Queensland Government will see the merits of this added level of protection for our young people and introduce legislation.

We have, however, by omitting Position of Authority offences from the bill, lost an opportunity to act now in the best interests of young Queenslanders.

 

Dr Lee-Anne Perry is Executive Director of the Queensland Catholic Education Commission and a former school principal.