Ivana Bacik (Independent)

I welcome the Minister to the House. I also welcome the introduction of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. Like others who have spoken, I am especially pleased it has been introduced in the Seanad. I thank the Minister, Deputy Shatter, for initiating the legislative process in this House. It is appropriate in light of the tradition of thoughtful debate in the Seanad which is perhaps less adversarial than the Lower House. We have heard contributions from people who have real expertise in this area. I listened with particular interest to Senator van Turnhout, who has worked in this area and has extensive knowledge of it. I thank the Minister for facilitating the committee hearings on the heads of the Bill. As a member of the Joint Committee on Justice, Defence and Equality, I felt privileged to be able to engage in that part of the process and to hear directly from some of the groups working on the front line of child protection.

We have had a good programme of initiating legislation in the Seanad in this session. The Minister, Deputy Hogan, initiated the Electoral (Amendment) (Political Funding) Bill 2011 in this House. The Minister, Deputy Coveney, initiated the Animal Health and Welfare Bill 2012 in here. Last night, the Minister, Deputy Reilly, accepted a Bill from Senator Crown that will ban smoking in cars when children are present. I am delighted such good practice is being continued with this legislation, which I welcome. As the Minister, Deputy Shatter, said, this Bill is part of a series of legislative measures aimed at strengthening this country's child protection laws. It aims to close the legal gap that exists in terms of failure to report offences. The need for this Bill is all too clear. Other speakers have referred to the Ryan report, the Murphy report, the Cloyne report and the recent new revelations about Brendan Smyth. We are already only too well aware of the horrendous litany of abuse he carried out.

I should declare an interest as somebody who has, in a legal practice, represented survivors of abuse in the courts and before the Residential Institutions Redress Board. I have had direct experience of the testimonies of some survivors of abuse.

I am glad to hear the report on this Bill which was produced by the Joint Committee on Justice, Defence and Equality has fed into Government policy and helped shape the Bill before the House. The oral hearings also gave us a real insight into the practical issues faced by those who work in child protection. The Minister has said the vetting bureau Bill will be introduced shortly. During the hearings on that Bill, the committee was impressed to hear about the extensive vetting procedures already in operation, for example, in sporting organisations. We could learn from those sectors that are almost ahead of the curve in terms of the legislation. I am conscious a different committee - the Joint Committee on Health and Children - is dealing with the Children First Bill.

I would like to reflect on the substance of this legislation. I have written in the past about the difficulties that were caused when the old common law offence of misprision of felony was abolished. The crime of failure to report sex offences was excluded when a partial replacement for that offence was provided for in the Offences Against the State (Amendment) Act 1998. I recall the debate that took place when that legislative change was being made. Counsellors and social workers were very concerned about the unintended consequences that mandatory reporting laws might have. At the time, I thought the Offences Against the State (Amendment) Act 1998 was an odd home for a new offence that did not relate solely to offences against the State. The Minister referred to section 176 of the Criminal Justice Act 2006 which served to fill the gap somewhat. It is clear a gap continues to exist, however. We hope it will be covered by this Bill.

I accept what the Minister said about the need to ensure the Bill is not retrospective. It may well cover acts of abuse that occurred in the past, but it will only cover any failure to disclose from the time the legislation comes into force. We are aware a culture of silence existed in the past. The report of the Joint Committee on Justice, Defence and Equality mentions that this culture enabled abusers to continue to abuse for a long time. Other speakers have referred to the revelations about Brendan Smyth and the personal role of the Primate of All Ireland in that regard. It is difficult to understand how people can fail to take personal and moral accountability or responsibility for the heinous consequences that flow from failure to report disclosures of abuse. It is particularly sad to learn from the brave survivors who have come forward that they disclosed at the time to prevent other children from being abused. The failure to report these disclosures upwards through the hierarchy resulted in the abuses continuing for many years. I cannot understand how someone who was complicit in this matter can fail to take responsibility for such complicity.

On the report of the Joint Committee on Justice, Defence and Equality, Senator Denis O'Donovan referred to the key theme to emerge in the course of the joint committee hearings when members stressed the need to ensure legislation would not have unintended consequences or be self-defeating in respect of the reporting of abuse. We also highlighted, as the Senator pointed out, the high levels of intra-familial abuse. Senator Jillian van Turnhout referred to this issue and the study carried out by the Rape Crisis Network. It is worth noting that intra-familial abuse refers not only to abuse by family members but also to abuse by those trusted by families. In the case of Fr. Brendan Smyth, as well as children, he frequently groomed their parents to trust him to the extent that they would leave their children with him. Trusted family friends and carers of children who are not family members are covered by the concept of intra-familial abuse.

One of the issues highlighted in the joint committee's hearings was the concept of reasonable excuse and what constituted a defence for those who failed to report. This is perhaps the most complex issue that arises. I was struck during Senator Jillian van Turnhout's contribution that the text of section 4, which I read with great care, was not very accessible. I do not know how it can be made more accessible. The Minister explained the section very well and the explanatory memorandum also makes it clearer. However, its complexities require a careful reading of the section if one is to understand fully the defences that apply in different circumstances. Clearly, there is a need for different scenarios to be covered in different ways. For example, subsections (10) to (15), inclusive, cover the issue of disclosures made by counsellors, social workers, doctors and others in their professional capacity. I am pleased to note that rape crisis centres may be covered under subsection (13).

Two questions came to mind as I read section 4 following the joint committee hearings. First, where disclosure of abuse is made to a family member or other person and he or she makes a report to the Health Service Executive, should this be included, if not as a defence, as a factor to be taken into account? The Minister helpfully set out the link between the legislation and the Children First guidelines, which I am pleased to note will be placed on a statutory footing. Should the link be made explicit within the terms of section 4? This question was discussed during the joint committee's hearing and we did not arrive at a settled view on the matter - I am not clear about it. As the Minister noted, it is stated in the Bill that the reporting obligation to the HSE is separate from other reporting obligations. I wonder if a more explicit link should be made between the different reporting obligations.

The second issue that arose was that of ongoing risk. If the person to whom abuse is disclosed is aware that the abuser or alleged abuser may still be actively abusing and that other children or vulnerable persons may be at risk, should this knowledge not override any stated wishes of the victim or, if the victim lacks capacity, the parent or guardian? I am thinking again of the Fr. Brendan Smyth case. If there is an ongoing risk and it is clearly apparent to the person to whom disclosure is made, does this knowledge override the wishes of the victim? This issue arose in the joint committee's hearings and it observed in its report that this theme had emerged. Page 9, for example, reads: "It was also submitted that, where there is an on-going risk to that child/vulnerable adult or others, the victim's wishes should not amount to 'reasonable excuse'".

On capacity, an issue addressed in section 4, I am glad the Minister provided a comprehensive explanation for choosing the age of 14 years. This issue raises a more general question about the need to codify the law on sexual offences, specifically sexual offences against children. Difficulties and anomalies arise in our laws on sexual offences against children in respect of the age of consent. Legislation provides for different ages in respect of a child's capacity to consent to sexual intercourse. While this is a separate issue, I wonder whether a link should be made.

I look forward to a considered debate on Committee Stage on some of the more complex issues involved, particularly the section 4 set of defences which will be key to the working of the legislation in practice. None of the points I have made detracts in any way from the strong welcome my colleagues and I give to the Bill. The legislation is of major importance and a progressive step forward in trying to tackle the dreadful culture of silence around child sexual abuse that has been prevalent in this country for much too long.