The Justice Legislation Amendment Bill 2018 (the Bill) was passed by the NSW Parliament on 7 March 2018. Buried in the Bill is an amendment to the Crimes Act 1900 (NSW) (the Act) which closes a legal loophole that potentially enabled teachers to engage in a sexual relationship with a student, and avoid conviction, if they were not teaching the student at the time of the relationship. We reported on the Bill in a previous edition of School Governance.

The Bill is currently awaiting assent, after which it will become law.

The Original Offence: Pupil is Key

Currently under section 73 of the Act, it is an offence for an individual to have sexual intercourse with a person aged between 16 and 18 and who is under that individual’s “special care”. An individual who attempts to commit this offence will be liable for the same penalty for the offence.

The victim is taken to be under the special care of the offender if the offender is a school teacher and the victim is a pupil of the offender. Other categories of special care include where the offender:

• is the step-parent, guardian or foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim
• has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim
• is a custodial officer of an institution of which the victim is an inmate
• is a health professional and the victim is a patient of the health professional.

In December 2017, the NSW Criminal Court of Appeal (the Court) ruled that a high school teacher was not guilty of three counts of having sex with a person between 17 and 18 years of age under his “special care”. The defendant teacher successfully argued that because the Act defined “special care” in a school setting as strictly being a teacher-pupil relationship, and because the student was not in any of his classes at the time of the sexual relationship, she could not have been under his “special care”.

The Passage of the Bill

Following this controversial decision, the Bill was introduced into Parliament on 7 February 2018 by NSW Attorney General Mark Speakman. In his Second Reading Speech, Mr Speakman noted that the purpose of the section 73 offence was to protect children aged 16 or 17 against a misuse of authority in particular relationships where a power imbalance exists between the parties.

He noted that the current drafting means that other teachers who are not direct classroom teachers of the relevant pupil are not covered by the offence. This is despite the fact that they have a relationship of special care with all students at the school, which can be misused to manipulate students or make them vulnerable to undue influence or pressure.

The Bill passed both the Legislative Assembly and the Legislative Council without amendments.

Amending the Offence: Broadened Category

The Bill removes the category of special care for teachers and their pupils. In its place, a broader category has been inserted for where “the offender is a member of the teaching staff of the school at which the victim is a student”. A member of the teaching staff is defined to mean:

• a teacher at the school
• the principal or a deputy principal at the school, or
• any other person employed at the school who has students at the school under his or her care or authority.

According to the Second Reading Speech, the words "care or authority" are not intended to have any narrow, technical meaning, but are intended to capture all situations where the ordinary meaning of either word is applicable. It will not be necessary for the relevant person to have students under their care and under their authority. For example, a school worker who provides learning support and other services to students with a disability will be taken to have students under their care for the purposes of this category, even though they may not be considered to supervise those students.

The offence continues to apply to other special care relationships, including where the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim.

This means that not only are teachers, staff or contractors who care for or who have authority over students considered to have a relationship of ‘special care’, but this also extends to tutors or other school service providers who provide instruction in religion, sport, music or other areas.

The 'Special Care' Offence and the Royal Commission

The Royal Commission Into Institutional Responses to Child Sexual Abuse (Royal Commission), in its Criminal Justice Report, made a number of recommendations concerning 'position of authority' offences such as the NSW offence, with similar offences existing in other states and territories. For example, the Royal Commission recommended that Governments should review any position of authority offences applying where the victim is 16 or 17 years of age, and amend the legislation if the offence requires anything more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’).

The Royal Commission did not recommend that any position of authority offences be broadened in the way that the NSW offence has been broadened. Indeed, the Report only stated that a teacher should not be engaging in sexual conduct “with his or her 16- or 17-year-old students”, and not other 16- or 17-year-olds at the school. The Royal Commission surmised that, if a teacher and student want “to be together”, they can cease the teacher-student relationship, or wait until the student leaves school or becomes 18 years old. This reflects a narrower view of child abuse laws that, as shown by the NSW amendment, may not align with current understanding.

Based on the timing of the release of the Royal Commission’s final recommendations (December 2017), it is unlikely that it had the opportunity to consider the Court’s ruling discussed above, suggesting it may not have taken the existence of the legal loophole into account in the recommendations.

Other ‘Special Care’ Offences

Most jurisdictions have offences that target sexual abuse or activity by persons in a position of special care or authority of young people aged 16-18. The scope of the relevant care/authority relationship differs in each instance, but all include the category of teachers, except for WA which does not define any categories. The legal loophole technically exists in all jurisdictions except for the ACT and SA, which already have a broader teacher-student relationship category in similar wording to the recent NSW amendment.

The only jurisdictions without a specific offence for older children who are above the age of consent are Queensland and Tasmania – in these states, consent will be vitiated where it is obtained by the influence of a person's position or authority.

Two jurisdictions, Victoria and the ACT, have recently amended their versions of the Crimes Act, making changes to the definition and scope of their special care offences.

In Victoria, the Crimes Amendment (Sexual Offences) Act 2016 took effect on 1 July 2017. This inserted a new section 37 which provides a new central definition of ‘care, supervision or authority’ and expands upon the list of persons who will be in such a position, now including persons who act as a religious or spiritual guide, or a leader or official of a church or religious body who  provides care, advice or instruction to a child under their care, supervision or authority. Refer to our previous School Governance article.

In the ACT, the Crimes Legislation Amendment Act 2018 commenced on 2 March 2018. This amendment, among other things, inserted a revised section 56 that broadened the definition of ‘special care’ to include a number of new categories. One of these categories included where an adult had an established personal relationship in relation to the provision of religious, sporting, musical or other instruction (very similar to the NSW category). Refer to our previous School Governance article.

Refer to the table at the end of this article for a summary of the offences in other jurisdictions which are similar to the NSW offence and how they may apply to schools.

How Should Your School Respond to this Amendment?

While closing this legal loophole seems out of the scope of the Royal Commission’s recommendations, it may be that other jurisdictions also introduce amendments to broaden the nature of their special care offences. Victoria may be among the first to introduce a similar amendment, as they have recently introduced another Bill designed to close a legal loophole. The Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 was introduced into Parliament on 6 March 2018, with the goal of preventing unincorporated organisations from relying upon a legal technicality – known as the ‘Ellis defence’ – to avoid being sued.

As stated in our previous School Governance article, in order to ensure they are responding appropriately to the amendment, schools will need to:

• understand the amended offence
• review policies relating to child protection, specifically those for reporting sexual abuse and mandatory reporting, staff and student professional boundaries, grooming conduct and codes of conduct to ensure that these apply to all staff and all students, irrespective of the age of the student
• train all staff on their reporting obligations and professional behaviours to assist with the detection of grooming and other inappropriate or criminal behaviours
• update procedures for monitoring staff behaviour and reporting breaches of school policy and the law.