CRIMINAL LAW CONSOLIDATION (CHILD PORNOGRAPHY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2011.)

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (10:57): I indicate that there is general support for the proposal being moved by the member for Davenport. We have been in discussion on this matter for some time, and I appreciate his bringing this matter forward.

I think it is important to put on the Hansard record, though, that, whilst I do not oppose—obviously: in fact, I am agreeing to—the general thrust of the member for Davenport's proposal, there is no right or wrong answer to this particular question. In fact, each of the Australian jurisdictions has different rules for ages of consent and the particular matter that we are looking at here, and there is no national uniform position. I think that is probably unsatisfactory and it would be better if every state in the commonwealth and the territories had an identical way of dealing with these matters; but, that said, that does not mean that we cannot adjust the arrangements that we have here.

I indicate general support for the bill. I will be moving some minor amendments, which I understand the member for Davenport will be supporting, and it is probably appropriate that we go into committee.

The Hon. I.F. EVANS (Davenport) (10:59): I thank the Attorney for arranging a meeting with me and his officers to discuss this matter and for accepting the principle of the bill. The opposition will be accepting the government's amendments because we accept the premise of them. As we all know, governments quite often do not accept private members' legislation, so I thank the Attorney for his courtesy in this matter and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

The Hon. J.R. RAU: I am not sure what you will permit us to do, but I understand from the member for Davenport that he is quite content if I move all the amendments set out in schedule 10(1), which is in my name, as a block and agree to all of them. We did try this the other day, Mr Acting Chairman, and we got ourselves in a bit of bother, but we will see how we go this time.

The ACTING CHAIR (Hon. M.J. Wright): We still need to go through the clauses.

Clauses 1 and 2 passed.

Clause 3.

The Hon. J.R. RAU: I move:

Page 2—

Line 12 [clause 3(2)]—Delete '18' and substitute '17'

Line 17 [clause 3(3)]—Delete '18' and substitute '17'

The Hon. R.B. SUCH: I believe we are allowed to speak on the clause.

The ACTING CHAIR: Okay, member for Fisher.

The Hon. R.B. SUCH: I will be very brief. First of all, I commend the Attorney and the opposition for approaching this in a bipartisan way. I think it is a good use of parliament and that is what we are here for, to get a better outcome for the community. In relation to the issue of pornography, I have raised this before, and I want to emphasise it again: I am not convinced that we have the definition of pornography right in the way it is used in legislation and in the community, because people have different perspectives on what it actually means.

There was an article in The Advertiser on the weekend, in their magazine, over three pages. Overall it was a good article—one of the experts quoted was Professor Dines, who is regarded internationally as a commentator on this issue—except never once was the topic defined; never once was pornography defined. I think that is very much unacceptable, and it leads to a whole lot of problems, because what one person regards as pornography, another person may not.

Some people think children running around naked by definition is pornography. At the same time we have in our law reference to what is, in my view, not pornography, but is often called pornography: the rape and sexual assault of young children. I do not call that pornography. I call that sexual assault or rape, but under the current approach that is labelled as pornography.

When I corresponded recently with the police minister he said the police use the term 'child exploitation'. I do not think that conveys the seriousness of sexual assault; penetration of a child is not pornography in the sense that most people in the community understand it. I have written to the Attorney about this. I think we need to get a better grasp on what we are actually talking about. The related issue is in terms of paedophilia, which ironically has gone from what was a positive term, 'lover of children', to now basically an abuser of children.

An issue has arisen and been highlighted in Victoria recently, where teenagers are being classified and put on the sex offenders register. I will give one case that came to my attention. This is a Victorian case where a young lad received unsolicited photographs from a girlfriend, semi-naked photos of her and her friends, and a separate incident happened, unrelated to sexual activity. This lad, to defend himself, said to the police, 'You can have a look at my computer, you can have a look at my mobile phone. I was not involved in this particular criminal action.' It had nothing to do with sexuality. On trawling through his computer, the police came across these images sent to this teenager by a teenage girl, unsolicited, and that lad is classified then as a sex offender and he will go on the sex offender register and will be on there for years and, for example, will not be able to train as a teacher. He did not solicit that material; he did not want it. It was discovered by accident by the police looking into something else.

The point I make is that we have to be very careful that we do not have the same situation here where teenagers who do things that we would not do—expose parts of their body as part of the growing up process, of being silly with dares and all that sort of thing. Young lads put their bare backside out of the window and young girls take photographs of themselves.

I think we have to be careful to distinguish between people who abuse children sexually, particularly those who do it in a horrendous way, and teenagers who might be thinking they are just having a bit of harmless sexting, and it probably is relatively harmless. It is not quite playing nurses and doctors but it is the next step up, and I think we have to be very careful that we do not create criminals out of teenagers who, through a momentary act, send a photo they probably should not to their mate and, as a result, their mate ends up on the sex offenders register and damages their career and life.

The Hon. J.R. RAU: I acknowledge and understand the points that the honourable member for Fisher is making, and I would be very happy to sit down and have a chat with him about those matters because they are actually delving into matters that, whilst they are related, do not directly concern the amendments that the member for Davenport has put forward. I do understand the points that are being made and I think I am—

The Hon. R.B. Such: I was just using the opportunity.

The Hon. J.R. RAU: Yes, I know you were and I am delighted to have a chat with you about that in the future but, at this stage, I would like to get back to amendments Nos 1 and 2 to clause 3.

The Hon. I.F. EVANS: I will just explain to the house what the amendments seek to do. In my bill I had changed the age where the child pornography offences commence from the existing provision of under 16 years to under 18 years. The government's amendments essentially amend my proposal to bring it to under 17 years, so it will capture those people between the ages of 16 and 17. The government, as I understand it, is taking that year because 17 is the age of consent, and I accept that amendment.

All through these amendments they are uniforming the age at 17, so it will cover that period from 16 to 17 which currently under the Criminal Law Consolidation Act is not covered for child pornography reasons. For people of authority, the government are making it 18—people of authority being teachers, ministers of religion, etc. So, all of these amendments relate to those principles. We are accepting them, so I do not need to speak on any other amendment.

Amendments carried; clause as amended passed.

Clause 4.

The Hon. J.R. RAU: I move:

Page 2—

Line 21 [clause 4(1)]—Delete 'age of 17 years' and substitute:

prescribed age in relation to that person

Line 23 [clause 4(2)]—Delete 'age of 17 years' and substitute:

prescribed age in relation to that person

Line 25 [clause 4(3)]—Delete '18' and substitute '17'

Page 3—

Line 2 [clause 4(4)]—Delete 'age of 17 years' and substitute:

prescribed age in relation to that person

Line 4 [clause 4(5)]—Delete 'age of 17 years' and substitute:

prescribed age in relation to that person

Line 6 [clause 4(6), inserted subsection (4)]—Delete '(b)(i) or (3)' and substitute:

(1)(b)(i) or (3) (other than where the defendant was in a position of authority in relation to the child) if the defendant proves

After line 16 [clause 4(6)]—Insert:

(6) For the purposes of this section, a person is in a position of authority in relation to a child if the person is—

(a) a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or

(b) a foster parent, step-parent or guardian of the child; or

(c) a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or

(d) a medical practitioner, psychologist or social worker providing professional services to the child; or

(e) a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or

(f) an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).

(7) For the purposes of this section, the prescribed age of a child in relation to a person is—

(a) if the person is in a position of authority in relation to the child—18 years; or

(b) in any other case—17 years.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.F. EVANS (Davenport) (11:10): I move:

That this bill be now read a third time.

Again, I thank the government for its support.

Bill read a third time and passed.