Bills

Sentencing (Serious Child Sex Offenders) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (11:03): I move:

That the time allotted for the second reading debate and committee stage of the bill be 90 minutes.

Motion carried.

The Hon. K.A. HILDYARD:

That this bill be now read a second time.

I am very pleased to bring to this house the Sentencing (Serious Child Sex Offenders) Amendment Bill 2024. The subject matter of this bill goes to the most heinous criminal acts, and I dearly wish that they did not exist and that this bill was not necessary. But, sickeningly, they do, and we are determined to act. Our government is committed to doing everything within our power to help protect the community from the vile child sex offenders who commit these acts.

As part of this stringent focus, prior to the state election the government committed to progress new laws around indefinite detention so that serious child sex offenders will rightly stay in prison until they can prove they are no longer a danger to children and our community, and should they re-enter the community will face lifetime electronic monitoring.

This bill brings our commitment to life and is one of a suite of measures we have implemented or are implementing to help ensure we fulsomely and severely deal with those who prey upon children and young people—children and young people who always deserve to be safe. The bill we progress in this house today amends the Sentencing Act 2017 to create a new sentencing scheme, rightly providing for indefinite detention for serious child sex offenders. This bill provides that a person will automatically be taken to be a serious child sex offender when they are found guilty of a triggering child sexual offence, if they have been previously convicted of a serious child sexual offence, including serious commonwealth child sex offences and child sex offences committed in other jurisdictions, including overseas jurisdictions, for which they served time in prison.

When sentencing a serious child sex offender for a triggering offence, the court must first consider whether a custodial sentence of imprisonment will be imposed for the offence. If so, there will not be any need for a prosecutor or the Attorney-General to apply to the Supreme Court to seek an order of indefinite detention. Instead, the bill provides that the court is required to impose a mandatory sentence of indefinite detention. This means that the serious child sex offender will not be able to be released from prison into the community without further authorisation by the Supreme Court via a process designed to ensure that the safety of the community is absolutely the paramount consideration.

A serious child sex offender will only be able to apply to the Supreme Court to be released on licence with mandatory electronic monitoring and any other conditions that the Parole Board or the Training Centre Review Board considers necessary after serving a minimum period of imprisonment. This minimum period is four-fifths of the sentence that would have been imposed if the offender were not a serious child sex offender, subject to mandatory indefinite detention.

To be released on licence, the offender will have to satisfy the Supreme Court that they are capable of controlling and willing to control their sexual instincts or that they no longer present a risk of safety to the community. This requires assessment by two appropriately qualified medical professionals who will be appointed by the court. This is the same test that currently applies for both release on licence or discharge of a detention order under the existing scheme applicable to offenders who have been found to be incapable of controlling or unwilling to control their sexual instincts, contained in part 3, division 5 of the Sentencing Act.

The bill rightly imposes a mandatory requirement for electronic monitoring if an offender is released into the community on licence. That condition is also rightly not able to be varied or waived in any circumstances whatsoever. The Parole Board will be empowered to cancel the release on licence and return the offender to custody if it is satisfied that the offender has contravened or is likely to contravene a condition of their licence.

A serious child sex offender will be able to apply to have the sentence of indeterminate duration, including the requirement for electronic monitoring, brought to an end only after having served the minimum period of imprisonment in prison as well as having spent a further period of at least five years being supervised and monitored on licence in the community.

Further, to have their sentence of indeterminate duration brought to an end the offender will also, again, have to satisfy the Supreme Court that they are capable of controlling and willing to control their sexual instincts or that they no longer present a risk of safety to the community following assessment by two appropriately qualified medical professionals appointed by the court. It should be noted that because the test for extinguishment of the sentence involves consideration of the offender's capability to control, or willingness to control, their sexual instincts without licence conditions, it will be a harder test to satisfy than the test for release on licence.

Finally, it is recognised that even when dealing with vile child sex offenders there may be very, very rare situations where the imposition of a sentence of indefinite detention would result in an unjust outcome. Accordingly, the bill provides that if the court is satisfied that there are exceptional circumstances and that in all the circumstances it is not appropriate for the person to be subject to indefinite detention, the court will have the ability to revert to sentencing the offender to an appropriate sentence in the usual way. Exceptional circumstances may emerge for consideration by the court from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both.

Our courts have extensive experience in applying exceptional circumstances tests as part of sentencing in other contexts, for instance, when setting non-parole periods that are shorter than the mandatory minimum pursuant to section 48 of the Sentencing Act, in the context of sentencing serious repeat offenders pursuant to section 54 of the Sentencing Act and in the context of the prohibition against suspended sentences for certain classes of offenders pursuant to sections 51 and 96 of the Sentencing Act.

Again, the Malinauskas Labor government is absolutely committed to protecting our South Australian community from vile child sex offenders. On coming to government, one of our very first pieces of legislation was to lift the maximum penalties applicable to a range of child sex offences. In the past two years, we have also closed loopholes in child sex offence laws, including tightening Carly's Law to ensure those who target children online are subject to the full force of the law.

Earlier this year, we passed laws to prevent registered child sex offenders and those accused of registrable child sex offences from working with children, and we have made clear in our draft Children and Young People (Safety and Support) Bill that we absolutely intend to more severely punish those predators who deliberately target children and young people in care.

This bill is another crucial initiative integral to keeping the children of South Australia safe from those who would do them harm. I commend the bill to the house. I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

3—Amendment of section 5—Interpretation

This clause inserts definitions of key terms used in the measure into section 5 of the principal Act.

4—Amendment of section 26—Sentencing for multiple offences

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

5—Insertion of Part 3 Division 2A

This clause inserts new Part 3 Division 2A into the principal Act as follows:

Division 2A—Sentencing of serious child sex offenders

Subdivision 1—Preliminary

48A—Interpretation

This clause contains definitions of key terms used in the new Division.

48B—Capable of controlling, and willing to control, sexual instincts

This clause deems serious child sex offenders to not be capable of controlling, and willing to control, their sexual instincts unless evidence to the contrary exists. The clause shifts the onus of proving that a serious child sex offender is capable of controlling, and willing to control, their sexual instincts onto the serious child sex offender.

48C—Prescribed child sex offences

This clause lists the offences that constitute prescribed child sex offences.

48D—Triggering child sex offences

This clause lists the offences that constitute triggering child sex offences.

48E—Application of Division to youths

This clause clarifies the application of the Division to youths.

48F—Disapplication of certain provisions of Act

This clause disapplies the specified provisions of the principal Act to the sentencing of a serious child sex offender for a triggering child sex offence.

Subdivision 2—Serious child sex offenders

48G—Serious child sex offenders

This clause defines who is a serious child sex offender, and when a person ceases to be a serious child sex offender.

48H—Effect of spent convictions

This clause provides that the scheme set out in this new Division is not affected by a conviction of a serious child sex offender becoming spent.

Subdivision 3—Sentencing of serious child sex offenders for triggering child sex offences

48I—Sentencing of serious child sex offenders for triggering child sex offences

This clause sets out the scheme by which serious child sex offenders who are convicted of a triggering child sex offence are to be sentenced.

Subdivision 4—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders

48J—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders

This clause provides that the sentencing court may make a declaration that new Subdivision 3 does not apply in relation to the sentencing of certain serious child sex offenders in the circumstances referred to in the clause.

Subdivision 5—Release of serious child sex offenders on licence

48K—Release on licence

This clause provides that a serious child sex offender who is serving a sentence of indeterminate duration may be released on licence in the circumstances referred to in the clause. Before they can be released, however, the offender must serve the minimum period of imprisonment fixed under new section 48I(2)(d). The clause also sets out the conditions that attach to the release, including the wearing of electronic monitoring at all times.

48L—Arrest and detention of serious child sex offender released on licence without warrant

This clause provides that police officers may, on the authorisation of a senior officer, arrest a serious child sex offender who has been released on licence if the officer suspects on reasonable grounds that the serious child sex offender has breached a condition of the release on licence.

Subdivision 6—Extinguishment of sentence

48M—Extinguishment of sentence

This clause sets out the scheme whereby a serious child sex offender or the DPP may apply to the Supreme Court for extinguishment of a sentence of indeterminate duration. The clause sets out the matters of which the court must be satisfied, or have regard to, before extinguishing a sentence under the section.

Subdivision 7—Miscellaneous

42N—Inquiries by medical practitioners

This clause sets out the way in which medical practitioners are to carry out inquiries into the mental condition of a person under the Division.

6—Amendment of section 55—Declaration that youth is recidivist young offender

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

7—Amendment of section 57—Offenders incapable of controlling, or unwilling to control, sexual instincts

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

8—Insertion of section 59A

This clause inserts new section 59A into the principal Act, allowing police officers to arrest a person released on licence under section 59 if the police officer suspects on reasonable grounds that the person has breached a condition of the release on licence. This aligns with new section 48L.

Schedule 1—Related amendments

Part 1—Amendment of Correctional Services Act 1982

1—Amendment of section 64—Reports by Board

This clause amends section 64 of the Correctional Services Act 1982 to make a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

Part 2—Amendment of Criminal Law Consolidation Act 1935

2—Insertion of section 5AB

This clause inserts new section 5AB into the Criminal Law Consolidation Act 1935 to provide the penalties (including a sentence of indeterminate duration) for the commission of a triggering child sex offence by a serious child sex offender.

Mr TEAGUE (Heysen) (11:14): I rise to indicate the opposition's support for the bill and that I am the lead speaker for the opposition. We have just heard in the house the minister rehearse a speech given in another place on 21 March this year. It was a rather lengthy speech. It took the better part of a quarter of an hour to rehearse that, more or less word for word, and that is off the back of a 90-minute guillotine being applied to this debate by the government at the outset. In circumstances where this bill is inspired by and is responsive to events that occurred on 22 January this year, the government—the Premier—got a headline on 23 January saying they would be bringing laws into this place to address the circumstances that had arisen at that time.

The bill passed through the Legislative Council back in April, and now we are here in September of this year—so-called urgent legislation that is a priority for the government, and we see this. We see a rehearsal of a speech, a guillotine of a debate, all in circumstances where the opposition has made clear that it supports the legislation. It is really important that we do not insult the intelligence of South Australians in terms of progressing matters through this house.

I am not going to stand here and rehearse the contents of the bill. They are well known and they have been the subject of debate in the lead-up, first in the immediate aftermath to those terrible events in January, then in the course of the preparation of this legislation—and I recognise the Attorney-General for his work in that regard—and then in the course of the debate in another place.

Of course, it is well to remind ourselves that for the range of heinous offenders, for whom the serious penalties the subject of this bill are there to protect the community, there needs to be a wide range of measures applied. Time will tell whether, and to what extent, these changes make that positive contribution. It is important also to note that in the circumstances of the attack that occurred in January, arguments ought be made about the proper resources to safety on public transport and the proper resources and recourse available to policing, and, of course, serious offences with serious penalties to match have their role to play.

We all know that this is somewhat extraordinary legislation in terms of the application of the penalty that it does. The views about that from a jurisprudential point of view and a point of view of principle have been well aired now. There has been plenty of opportunity to do so over the course of the better part of the last year, but here we are finally. The government has decided that this is now the moment to bring this to the House of Assembly and to bring these measures into law. The opposition supports the changes, and now let us get on with legislating.

Bill read a second time.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (11:19): I move:

That this bill be now read a third time.

I seek leave to continue my remarks.

Leave granted; debated adjourned.