Consequences for Cover-Ups: A Critical Analysis

The Child Sex Abuse (Justice for Survivors) Act 2016 and Consequences for Cover-Ups Act 2016 (NSW) aim to address the issue of child sex abuse cover-ups in Australia. The acts emphasize the importance of reporting sexual assault incidents as soon as possible to ensure punishment. The Prime Minister has the authority to appoint an Officer for Cover-up Redress, who will investigate allegations and determine penalties. The Officer's powers are not subject to direction by others, but their decisions should be based on evidence. The Consequences for Cover-Ups Act 2016 (NSW) adds that institutions attempting to cover up child sex abuse can face fines or have their licenses canceled. However, some aspects of the acts require modification, such as defining the age limit of a child and ensuring the punishment for authoritative persons involved in cover-ups is relevant.

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200009 Constitutional Law
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Contents
Opinion in relation to Child Sex Abuse (Justice for Survivors) Act 2016......................................................2
Facts of the case/situation.......................................................................................................................2
Judging the constitutional validity of Child Sex Abuse (Justice for Survivors) Act 2016...........................2
Opinion related to the validity of Child Sex Abuse (Justice for Survivors) Act 2016................................5
Opinion in relation to Consequences for Cover-Ups Act 2016 (NSW).........................................................6
Facts of the case/situation.......................................................................................................................6
Judging the constitutional validity of Consequences for Cover-Ups Act 2016 (NSW)..............................6
Opinion related to the validity of Consequences for Cover Ups Act 2016 (NSW)....................................8
Legal advice.................................................................................................................................................9
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The case is concerned with the Australian Constitutional Law. The law developed by the
constitution binds the court and people of Australia1.The ACL relates to interpreting and
applying the constitution of the country. There are certain bodies of doctrine that focus on the
interpretation of commonwealth constitution. Some of the features presented in the Constitution
of Australia have been considered from British, US, and Swiss model such as constitutional
monarchy, judicial review, and referendum related to amending the constitution. The
constitutional law mainly manages the effective relations among the executive, legislature and
the judiciary.
There exist various legislative powers with the parliament. The parliament, in consideration to
the constitution, can develop laws that take care of peace and order2. The areas that are covered
under this are trade and commerce, fisheries, banking, bounty, divorce, insurance, coal3, and
others. The case that is being discussed should also be considerable under the same.
This case is referring to changes in the law regarding the situational handling of child sex abuse
in the country. The constitutional amendment can be changed only in the certain circumstances.
The changes in the law must be passed by the parliament from each house in larger number4. In
the case being discussed, the changes can only be done when it is acceptable by the majority of
1 Commonwealth Of Australia Constitution Act – Parliament Of Australia (2016) Aph.gov.au
<http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=956BE242B820434A995B1C05A812D5E1&_z=z#covering_clauses-operation_of_the_constitution_and_laws>
2 Part V - Powers Of The Parliament – Parliament Of Australia (2016) Aph.gov.au
<http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=AFF6CA564BC3465AA325E73053DED4AA&_z=z#chapter-01_part-05_51>
3 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian
National Airways Pty Ltd (1964) 113 CLR 207 o Thomas v Mowbray (2007) CLR 307
4 Chapter VIII. Alteration Of The Constitution. – Parliament Of Australia (2016) Aph.gov.au
<http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=630FA7763BE64933B172A7D7E1615ADA&_z=z#chapter-08_128>
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the house representatives5. The alteration can be possible only on acceptability whose
justification has been discussed further. Case of South-Eastern Drainage Board vs. Savings Bank
of South Australia seems to have certain relevance with the current that has been taken up later
in this paper.6
The judicial power of commonwealth and the state are in consideration in this case of child sex
abuse acts. Both, the commonwealth and the state, are considering the development towards
effectively handling the pathetic situation of child sex abuse. The separation of judicial power
can be best understood with the case of Huddart and Moorehead7.
As the executive power holds with the Queen8 which is exercised by the Governor General, the
consideration of the amendments as per the situation presented in the case (Child Sex Abuse Act
of Commonwealth and State) might go up to them for final decisions.
Opinion in relation to Child Sex Abuse (Justice for Survivors) Act 2016
Facts of the case/situation
There was some evidence that was given to the Royal Commission into Institutional Responses
to Child Sex Abuse. The Common Wealth government found that this evidence were very
shocking, and the country was facing a serious crisis that relates to the covering up of the child
5 Chapter VIII. Alteration Of The Constitution. – Parliament Of Australia (2016) Aph.gov.au
<http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=630FA7763BE64933B172A7D7E1615ADA&_z=z#chapter-08_128>
6 South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939)
62 CLR 603
West Lakes Ltd v South Australia (1980) 25 SASR 389 o Attorney-General (WA) v Marquet (2003) 217 CLR 545
7 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
o Momcilovic v The Queen (2011) 245 CLR 1
o R v Trade Practices Tribunal, Ex parte Tasmanian Breweries Pty Ltd (1970) 123
CLR 361
8 Chapter II. The Executive Government. – Parliament Of Australia (2016) Aph.gov.au
<http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?
_id=1A1B66A3736843429A99D8F6D0F67FDB&_z=z#chapter-02_61>
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sex abuse that was happening extensively and the institutions like the churches, orphanages,
associations of sports covered them up. The people who survived the abuse faced emotional and
psychological trauma, and they took their lives. Thus, it was found that the workforce of
Australia reduced and the productivity of the country declined. This situation is not good for the
economy of the country. The economic cost of lost productivity is estimated at about $100
million per year. It is believed by the Commonwealth government that if the crime is covered up,
by the institutions, the emotional and psychological trauma experienced by survivors gets
alleviated. So, if the institutions are made to face harsh consequences, the loss of the productivity
of the workforce may reduce.
Judging the constitutional validity of Child Sex Abuse (Justice for Survivors) Act
2016
1. The objective of the act is that it makes sure that the institutions are faced with serious
consequences if they cover up the child sex abuse. It is done so that the survivors of the
abuse are given justice and the national crises due to the situation are reduced. For
example, the deterioration of the mental health is caused due to the sex abuse.
The objective of the act is absolutely valid because when the child sex abuse happens, the
victim suffers from extreme mental trauma and if the crime is not reported, then there is
further deterioration of the mental state of the person as the criminal is not punished.
For prosecuting an offender, it is necessary that the sexual assault is reported as soon as
possible9. Without that, the punishment cannot be given.
2. Only the judge of the Federal Circuit Court of Australia and the person consents to his or
her appointment as Officer can be appointed by the PM for redressing the cover up.
9 Shea, Peter, "Crime And Mental Health Law In New South Wales: A Practical Guide For Lawyers And Health Care
Professionals" (2006) 14 Australasian Psychiatry
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The PM of a country has all the authority to run the country and take decisions of that.
But, in addition to the judge of the Federal Circuit Court of Australia, the
recommendations of the sexual assault counselor and any other support person 10should
also be taken because they are aware of the depth of the assault that the victim has faced,
and they are also aware of the mental trauma that the person is suffering from.
3. The Officer for Cover up Redress will hold office at the pleasure of the Prime Minister,
and it is not subject to direction in the performance of his or functions as Officer for
Cover up Redress.
The person who is responsible for redressal should be given defined set of rules and
regulation under which he can work. If nobody directs him, then the reliability of the
redressal officer may decline.
4. The officer is responsible for
a. Investigating the allegations that are put on the covering up institutions and he will do
this on the request of the PM. Also, the way of an investigation will depend on the
willingness of the officer; the investigation is not subject to the rules of the evidence.
This point is highly invalid because the evidence is the most important thing in the
assault. If the decision is taken without paying attention to the evidence, then it not
valid. It is required to do the forensic examination of the victim and the abuse to
collect evidence, and this evidence is to be presented at the criminal trial. 11
5. Put a fine of not exceeding $1 million on the covering up the institution and the fine
must be determined on the basis of the seriousness of the covering up which would be
10 Adler, Robert, "Allegations Of Sexual Abuse In The Family Court Of Australia: Implications Of Re W ( Sex Abuse:
Standard Of Proof ) [2004] FLC 93–192" (2011) 18 Psychiatry, Psychology and Law
11 Goldman, Juliette D.G. and Usha K. Padayachi, "The Perpetrators Of Child Sexual Abuse In Queensland, Australia"
(2000) 25 Children Australia
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assessed by the officer. The penalty that the institution will pay will be treated as a civil
debt, and it is payable to the Commonwealth within three months of the determination.
The fine that has been put is valid but apart from the fine, the license of operation of the
institution or the organization must be canceled. This is because the institute may be
able to pay the fine but it may not stop the unethical practices related to covering up of
the crime in future. So, the fine is not the only way to punish the institution.
6. In this Act:
a. "child sex abuse" means any sexual or indecent activity involving a child that is an
offense under a law of the Commonwealth, a State or a Territory.
b. “cover up” means any action or inaction intended or likely to result in the existence of
child sex abuse not coming to the attention of law enforcement authorities.
The definitions are apt, but the age limit of the child must be defined properly as per the
Children and Young People Act 2008 (ACT). 12
Opinion related to the validity of Child Sex Abuse (Justice for Survivors) Act 2016
The Child Sex Abuse (Justice for Survivors) Act 2016 is valid constitutionally, but a few things
need to be modified like the powers and responsibilities of the redress officer, the determination
of penalty by considering the evidence and the definition of child.
12 Parker, Camilla, "Children And Young People And The Mental Health Act 2007" (2014) 1 IJMHCL
6

Opinion in relation to Consequences for Cover-Ups Act 2016 (NSW)
Facts of the case/situation
The government of the New South Wales thinks that there is some flaw in the Commonwealth
legislation because the investigation can be initiated by the PM only. Thus the Parliament of the
New South Wales has enacted the Consequences for Cover-Ups Act 2016
Judging the constitutional validity of Consequences for Cover-Ups Act 2016 (NSW)
1. The objective of the act is to ensure that the serious consequences are faced by the
institutes that try to cover the child sex abuse so that justice is given to the survivors of
child sex abuse and the national crisis is also addressed by it like the mental trauma that
is faced by the victims of sexual abuse. The abuse is found to deteriorate the mental
health of the people of Australia and the New South Wales economy.
2. A statement may be filed by the Premier in the Supreme Court, and he can allege that
some institute or the association has tried to cover up the child sex abuse in the New
South Wales.
3. It is the responsibility of the Supreme Court to see that whether the allegation is true or
not and it has to publish the determination.
4. If the court gets any confidential information, it must not disclose it to anyone.
The court should not disclose the information, but the information should be used while
taking decisions. This point is very confusing in regard to ‘non-disclosure’ of the
information. If the confidential information is relevant and it has an impact on the decision of
the court, then it must be made public, and the court should give justification that on what
basis it has arrived to some decision or conclusion related to any matter of the child sex
abuse.13
13 Gallagher, Bernard, "Ritual, And Child Sexual Abuse, But Not Ritual Child Sexual Abuse" (2000) 9 Child Abuse Rev.
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5. Any person who has tried to cover up the crime and is a member of the authority of the
institution is also guilty, and he is liable to pay the maximum penalty: $50,000 fine.
In this point, the penalty is not enough punishment for the person in authority. He should be
liable for imprisonment as well as he should be suspended from his position so that in future
he does not do any cover up for the child sex abuse case and also, some competent person
takes his position so that the future possibility of the cover up gets reduced too. So, as per the
constitutional law, the punishment is not relevant.
6. The definitions of child and cover up are same as the previous ones but the “member with
authority” means any person possessing executive level authority within an institution,
organization or association.
The definitions are apt, but the age limit of the child must be defined properly as per the
Children and Young People Act 2008 (ACT).The definition of a member with authority is apt
and relevant.
Opinion related to the validity of Consequences for Cover Ups Act 2016 (NSW)
As per the constitutional law, the Consequences for Cover Ups Act 2016 is valid except for some
points like the punishment for the authoritative person covering up the incident of child sex
abuse is not relevant, the point related to the disclosure of the confidential information should be
elaborated , and the definition of the child should be modified. Rest all is fine and valid.
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