Constitutional Law Mid-semester Assignment: Act Validity Analysis

This assignment critically examines the constitutional validity of the Child Sex Abuse (Justice for Survivors) Act 2016 and the Consequences for Cover-Ups Act 2016 (NSW). It delves into the facts of the cases, analyzing the objectives of the acts and their implications. The analysis includes a detailed evaluation of the acts' provisions, such as the roles and responsibilities of the Officer for Cover-up Redress, the use of evidence, and the penalties imposed on covering-up institutions. The assignment also provides legal advice, suggesting modifications to strengthen the acts, such as incorporating recommendations from sexual assault counselors, establishing clear rules for the redressal officer, and ensuring the proper definition of terms like 'child' and 'cover up'. The analysis assesses the validity of the acts under constitutional law, highlighting areas needing refinement to ensure justice for survivors and address national crises related to child sex abuse.

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200009 Constitutional Law
Mid-semester Assignment
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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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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 these evidence were very
shocking, and the country was facing a serious crisis that relates to the covering up of the child
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
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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
possible1. 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.
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 2should
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.
1 Shea, Peter, "Crime And Mental Health Law In New South Wales: A Practical Guide For Lawyers And Health Care
Professionals" (2006) 14 Australasian Psychiatry
2 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
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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. 3
b. Publishing a report where the officer has to state that according to him, is the
institution responsible for covering up the child sex abuse or not and the person also
has to give recommendations about changes to laws, policies or practices that may, in
the opinion of the Office for Cover Up Redress, be conducive to preventing the
covering up of child sex abuse in the future.
A formal report is to be submitted to the police. If the reporting cannot be done or
made, then there is an option to complete a Sexual Assault Reporting Option (SARO)
questionnaire developed by NSW Police.4
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
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.
3 Goldman, Juliette D.G. and Usha K. Padayachi, "The Perpetrators Of Child Sexual Abuse In Queensland, Australia"
(2000) 25 Children Australia
4 Mendes, Philip, "Reporting Child Abuse, (19Pp - August 1993)Child Sexual Abuse: Understanding And Responding,
(25Pp November 1993)Child Physical Abuse: Understanding And Responding, By Elizabeth Armitage With The
Assistance Of Aiistair Lever, (37Pp - September 1994)You And Your Child: For Parents Of Children Who Have Been
Sexually Abused, By Beth Parker, (50Pp - July 1993)It Happened To Me: Survivors Of Child Sexual Abuse Speak Out,
(43 P - November 1992)" (1995) 20 Children Australia
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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). 5
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.
5 Parker, Camilla, "Children And Young People And The Mental Health Act 2007" (2014) 1 IJMHCL
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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.
The objective is valid because the people who are in authority try to hide the truth of the
crimes and abuses that are happening with children in Australia. This is an unethical and
illegal thing. The law will help in reducing the number of cover-ups of the child sex abuse
incidents 6and the punishment could be awarded to the criminals as well as the covering up
institutions and organizations.
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.
6 Vulliamy, Anne P and Richard Sullivan, "Reporting Child Abuse: Pediatricians’ Experiences With The Child
Protection System" (2000) 24 Child Abuse & Neglect
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The statement should be allowed to be filed by anyone who has observed that some abuse has
been covered up by the institution. This will make the reporting of the incidences easy, and
the covering up will reduce. Thus the economy of the country will not suffer much.
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.
To determine the truth of the allegation, the court must make sure that relevance evidence is
produced and based on that, the truth of the allegation must be determined. This is a valid
point because the Supreme Court is the ultimate authority to take decisions on the important
matters and its judgment is valid and reliable.
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. It should be written that the court must not disclose the information until the
information is required to be produced in the court and till the time the court takes any
decision based on 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.7
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.
7 Gallagher, Bernard, "Ritual, And Child Sexual Abuse, But Not Ritual Child Sexual Abuse" (2000) 9 Child Abuse Rev.
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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.
8

Legal advice
In the Child Sex Abuse (Justice for Survivors) Act 2016, in addition to the judge of the Federal
Circuit Court of Australia, the recommendations of the sexual assault counselor and any other
support person should 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.
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. For coming to any conclusion, the officer for redress must require the forensic
examination of the victim to be done and the abuse to collect evidence and this evidence is to be
presented at the criminal trial. In the Consequences for Cover Ups Act, 2016 the punishment for
the authoritative person covering up the incident of child sex abuse must be extended, the point
related to the disclosure of the confidential information should be elaborated , and the definition
of the child should be modified.
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