House of Assembly: Wednesday, April 10, 2024



Criminal Law Consolidation (Sexual Predation Offences) Amendment Bill

Introduction and First Reading

Mr TEAGUE (Heysen) (10:32): I seek leave to move Notice of Motion, Private Members Business No.1 in an amended form.

Leave granted.

Mr TEAGUE: Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Child Safety (Prohibited Persons) Act 2016, the Child Sex Offenders Registration Act 2006, the Evidence Act 1929 and the Sentencing Act 2017. Read a first time.

Second Reading

Mr TEAGUE (Heysen) (10:32): I move:

That this bill be now read a second time.

I have the honour and the opportunity at this time to introduce this bill at a moment where we know that—and there is data that is being released in an ongoing way, but we know already fairly reliably—we are living in circumstances in Australia where the number of sexual assaults that are reported is at an all-time high. Not only that, but we know from research that that only covers a proportion of the incidents of sexual assaults that are occurring in the country—so an all-time high against what is an ongoing awareness that this is a scourge that is under-reported.

In terms of the present circumstances in which the bill is brought to the house, we know also, because the most thoroughgoing analysis tells us, that three in five victims are under the age of 18 at the time of the incident. In data from recent years, we know that, unusually in terms of criminal offending, the sexual assault offenders are male and within a cohort of young men among those highest offender rates and, as I have said at the outset, in circumstances where estimates have been given in terms of that rate of under-reporting being as high as 85 per cent of incidents not coming to the attention of the criminal justice system.

The bill addresses what is, I think, unfortunately but well-known enough described as 'date rape': sexual predation in circumstances of social, romantic, organised interaction in which predation occurs. We know that we have on the statute books offences that apply in relation to the spiking of substances, particularly spiking of drinks. What we do not have on the statute books is either substantial enough penalties that apply in relation to such offences or a sufficiently robust capacity to prosecute the incidence of those offences—so much so that in terms of making good the offence of spiking, we need to see a whole range of deliberate elements proved.

What the bill will do is increase the penalties that will apply to the administration of substances. To an extent it might be characterised as a bill that is increasing penalties, and it does it most dramatically where young people are the victims. If a victim is under 17 and, in turn, if a victim is under 14—in that most abhorrent of circumstances, increasing penalties for the administering of prescribed sexual predation drugs. It goes another step and, in this particular form of legislating, identifies particular substances that we know, in addition to alcohol, are commonly used for the perpetrating of those crimes. We see that spelled out, and I will address it in a moment.

Importantly, what this bill is going further to do is to call out the reality of what is going on in social settings by saying enough is enough. If you are in possession of what the bill identifies as a sexual predation drug and if you are there at a prescribed place, which the bill spells out, or if you are engaged in a prescribed interaction of the kind that I have described—an organised, social, romantic interaction, one that has been planned for people voluntarily to associate with one another—and you are in possession of such a substance, then, without more, you have committed an offence. It is for the offender, in those circumstances, to resort to defences that might be available in terms of legitimate reasons for the possession, and that might be particularly apposite in relation to the second aspect of those possession offences which apply in relation to possession of a prescription drug.

The bill, importantly, sends a clear signal that these substances are not to be present in public and social settings, and well before there is the administering of them, police can be in a position to identify serious criminal conduct at that point of possession. Of course, that applies in relation to controlled drugs. In relation to prescription drugs, then those provisions are set to apply in circumstances where the relevant prescription drug is a drug that is capable of producing a state of intoxication, not labelled in a compliant manner and, as I have indicated, not possessed in circumstances where it is clear that there are relevant and legitimate reasons for the possession.

We know that currently the spiking of food and drinks is criminalised—and that is the subject of section 32C of the act—and the adding of a substance to food or drink that is done so with an intent to cause impairment of another person's consciousness constitutes that offence. The two problems with it are that there is a high level of proof in terms of evidence and the series of steps associated with it and, coupled with that, inadequacy of penalty, even in the event that the offence is proved.

By providing for a new offence that is constituted by possession, there is already a very significant step forward in terms of identifying those substances and that conduct which, without more, is intolerable. By further addressing the scourge of administration of such substances, the bill is also doing work to highlight that the parliament can respond to circumstances that are already known, and one might respond at the outset to say there is a spiking offence on the books. The parliament can respond to circumstances in which the data tells us we are in an environment where this is highly prevalent and, without more and better intervention, is not showing signs of improvement.

In terms of penalty, the bill would increase the penalty that applies to the existing spiking offence. For example, the offence against the proposed section 42(1) would incur a maximum penalty of 10 years' imprisonment whereas the existing penalty under section 32C is three years.

There is then a group of sections that are added to the act: those are sections 41, 42 and 43. Section 41 would define conduct that falls outside of the scope of a sexual predation offence, including if the object of the conduct lawfully consented to the conduct, or if the conduct lies within the limits of what is generally accepted in the community as a normal incident of social interaction or community life. So there is a direct and practical interaction here that recognises that, in criminalising predation behaviour in these circumstances, it is particularly necessary to deal with questions of mutuality and of what is generally accepted in the community.

Section 42, as I have begun to advert, provides for sexual predation offences, firstly in relation to the administration of a prescribed sexual predation drug to another person in a prescribed interaction in a prescribed place. As I have indicated, penalties are prescribed, including up to life imprisonment where a victim under the age of 14 is involved. Secondly, it is in relation to the administration or supply of liquor to another person with the intention to make them vulnerable to sexual assault. Again, the penalties are increased, ranging from eight years for a basic offence through to 15 years in circumstances where the victim is under the age of 14 years.

Thirdly, it is in relation to possession of a sexual predation drug in a prescribed place or in a prescribed interaction, for which the penalty is eight years and, fourthly, section 42(6) would provide that possession of a prescribed or controlled drug capable of producing a state of intoxication and not labelled in a legally compliant manner in a prescribed licensed premises, and between the hours of 9pm and 5am, is an offence, with a penalty of five years.

Section 43 would provide for alternate verdicts if a jury is not satisfied that a charge of sexual predation has been established. It is open, therefore, on the face of it, for a finding of a lesser offence if the lesser offence is found to be proved.

For the balance of section 42, there are defences and exemptions of the character that I have described, and related amendments follow in relation to the acts that are the subject of the long title. I commend the bill to the house.

Debate adjourned on motion of Mr Odenwalder.