Bills

Criminal Law Consolidation (Child-Like Sex Dolls Prohibition) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 May 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:40): I rise today to speak briefly to the Criminal Law Consolidation (Child-Like Sex Dolls Prohibition) Amendment Bill. I indicate that I am the lead speaker and that Labor will be supporting this legislation and the amendment filed. Clearly, products like these are completely inappropriate and should be outlawed in South Australia, as they should be in the rest of this country. The bill amends the Criminal Law Consolidation Act 1935 and makes it an offence to produce or disseminate a childlike sex doll and introduces a maximum penalty of 10 years.

The current maximum penalty for production or dissemination of child exportation material is imprisonment for 10 years for a basic offence, and for an aggravated offence it is imprisonment for 12 years. This bill makes it an offence to possess a childlike sex doll and introduces a consistent maximum penalty of 10 years. The current maximum penalty for possession of child exploitation material is, as I have said, a seven-year offence and a 10-year offence. I say this to indicate that the penalties that are in place in the bill before the chamber at the moment are consistent with what is provided for in other parts of the legislation that this seeks to amend.

With those few words, I again indicate Labor's strong support of this bill and look forward to it progressing through our chamber today.

The Hon. R.I. LUCAS (Treasurer) (16:41): I rise on behalf of government members to speak on the Criminal Law Consolidation (Child-Like Sex Dolls Prohibition) Amendment Bill 2019, which has been moved by the Hon. Connie Bonaros. I firstly indicate the government's support of the bill and thank the honourable member for bringing a bill to this place. I am aware that this is a topic of great interest to the honourable member and something she has raised with the Attorney-General previously.

The bill seeks to ban the production, dissemination and possession of childlike sex dolls. Childlike sex dolls are three-dimensional, resemble children and have imitation orifices that are intended to be used for simulating sexual intercourse. The bill seeks to amend division 11A of the Criminal Law Consolidation Act 1935, which creates offences relating to child exploitation material. The amendments seek to put it beyond doubt that childlike sex dolls fall within the definition of child exploitation material.

There is an increasing interest here in Australia and overseas in prohibiting the importation, possession and production of childlike sex dolls, despite the limited evidence about whether they increase the likelihood of a person causing harm to children. In the absence of conclusive research, it is possible that there may be some criticism of the bill as impacting on the civil liberties of individuals. Despite this, it is crucial that legislation like this is supported and moved swiftly through our parliament. Given the harm caused by child sexual abuse and the retention of child exploitation material, the parliament must take harsh action.

I take this opportunity on behalf of the government to point out that I will be moving minor government amendments to the bill, which are necessary now that the Statutes Amendment (Child Exploitation and Encrypted Material) Act 2019 has passed. The proposed government amendments to the bill will ensure that viewing an image of a childlike sex doll online will not amount to dealing with child exploitation material unless the image is of a pornographic nature. The amendments clarify the distinction between the offences that involve pornographic images of the dolls and offences involving possessing, producing or disseminating actual dolls.

Further, I understand that other amendments have been filed by the honourable member, and I put on record the government's support for those. The amendments ensure that the bill will not commence operation until after the encrypted material act commences operation and also ensure that the new powers in the Summary Offences Act can be used in relation to all the child exploitation offences in division 11A of the Criminal Law Consolidation Act, not just the offences that involve actual children. Again, I put on the record the government's support of this bill and look forward to its swift passage and commencement.

The Hon. C. BONAROS (16:44): I thank the Hon. Kyam Maher and the Leader of the Government for their support of the bill and their thoughtful and meaningful words on the importance of protecting our children.

At the outset there are a couple of matters I would like to raise which relate to the bill since its introduction. Since I introduced this bill in May, as you would recall, Mr President, the Statutes Amendment (Child Exploitation and Encrypted Material) Bill was passed in this place, with amendments put forward by the Hon. Mark Parnell limiting the encryption powers to child exploitation offences. Unfortunately, they were rejected by the other place so they came back to the Legislative Council where this chamber insisted on those amendments and which, as noted, were ultimately accepted by the other place. I am pleased that common sense prevailed in that instance and that such an important bill was passed with sensible amendments and is currently awaiting proclamation.

The delay, though, meant that I was unable to include childlike sex dolls within the definition of child exploitation offence that was ultimately passed to the child exploitation and encrypted material bill to include this emerging and increasing form of child exploitation material within the encryption powers framework. I did not want to be responsible for delaying the introduction of that very important piece of legislation, but I can now proceed with the finalisation of the childlike sex dolls prohibition bill and so consequently I have some amendments that propose to include childlike sex dolls within the encryption powers framework.

To that end, I will be moving amendment No. 2 [Bonaros-1], which amends the Summary Offences Act and revises the definition of child exploitation offence, putting beyond doubt that childlike sex dolls are captured within the definition and therefore will be part of the previously referred to encryption powers framework. Amendment No. 3 [Bonaros-1] then amends the long title of the bill to reflect the changes sought to the Summary Offences Act, and amendment No. 1 [Bonaros-3] deals with the commencement provisions because the encryption material bill has yet to be proclaimed.

After I introduced the bill, I also referred it for stakeholder feedback and, to that end, the bill was referred to SAPOL via minister Wingard's office, the Carly Ryan Foundation and the Law Society of SA for comment. I thank all three organisations for providing timely and thoughtful comment on the bill. I now seek leave to table the submissions received from those stakeholders.

Leave granted.

The Hon. C. BONAROS: I note that those submissions were provided to all members and staff two weeks ago, so most of us will be familiar with their contents. I do, however, wish to highlight for the record some key observations and address a concern raised by the Law Society. I would also like to thank Sonya Ryan, CEO and founder of the Carly Ryan Foundation, for her thoughtful submission regarding the bill.

Sonya noted, as I did in my second reading explanation, that companies in Japan and China are manufacturing and shipping these realistic child sex dolls to consumers around the globe. Buyers can even order child sex dolls with predesigned facial features and expressions. They can request certain facial expressions such as happy, sad or afraid. Even more alarming, they can request dolls to resemble children in provided photographs. The ultimate goal of manufacturers is to make child sex dolls look and feel as realistic as possible, which is horrific, to say the least.

I echo the sentiments of Sonya Ryan in that regard. The realism of these so-called dolls is horrific in the extreme. Recent media around the issue, with accompanying photographs, drove home, I think, just how realistic the dolls are. Sonya also noted again, similarly as I did in my second reading explanation, that the sale of these sex dolls results in the risk of children being objectified as sexual beings and of child sex becoming a commodity. There is also a risk that childlike dolls could be used to groom children for sex in the same way that adult sex dolls have already been used.

There is absolutely no evidence that child sex dolls have a therapeutic benefit in preventing child sexual abuse. Committing sex acts with child sex dolls and robots normalises a sexual assault; it does not inhibit it. The Carly Ryan Foundation submission confirms many of the findings of the Australian Institute of Criminology's report, which highlighted in detail the many serious concerns about these dolls, something to which I have also referred at length. I am thankful for the support of the Carly Ryan Foundation, as leading experts in child safety, on such an important bill.

I also received a submission from the Leader of the Government, acting as Minister for Police, Emergency Services and Correctional Services, that, while not providing a position on the bill, SAPOL provided the following disturbing information, and I quote:

SAPOL investigations into individuals importing child-sex dolls have led to the execution of three search warrants. Evidence was obtained during one of these [search warrants] that indicated that the individual did have an inappropriate sexual interest in children. Additionally, child-like sex dolls have been located by SAPOL during investigations into unrelated child sex offence investigations. This reinforces the correlation between the dolls and a sexual interest in children.

This information should send a shiver down our collective spines that they are, in fact, being used in South Australia. The fact that there are local paedophiles using these so-called dolls for sexual gratification, I am sure makes all of us physically sick, and this information from SAPOL provides the ultimate evidence that this bill is needed. SAPOL holds the view, and I quote:

…the use of child-like sex dolls desensitises individuals to the impact of committing child sex offences and otherwise have no beneficial purpose.

This is consistent, of course, with the view of experts and the police. So there is absolutely no evidence that these childlike sex dolls have any therapeutic benefit in preventing child abuse. My office sought further information from SAPOL regarding the information supplied by them, which I also seek leave to table.

Leave granted.

The Hon. C. BONAROS: SAPOL confirmed that where they have discovered childlike sex dolls, they were seized as prohibited items. However, they added, and I quote:

The current construction of the Criminal Law Consolidation Act 1935 (SA) and South Australian legislation generally, does not make it possible for SAPOL to lay charges for possession of the dolls.

As I have said, we need to stay ahead of changes in technology and cannot afford to sit idly by when this disturbing phenomenon continues to grow.

Finally, I want to turn to the submission from the Law Society of SA, and I thank them for taking the time to provide a very considered submission examining the technical elements of the bill. They state, and I quote:

Presently, the Bill requires that a reasonable person will consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse. This would appear to require an objective test as it does not require that the person knew that the doll or object was a child-like sex doll or other sex object.

In other words, the bill requires that a person intended to possess a childlike sex doll or object, but does not require them to know what the object or doll is. This is true, and I will certainly return to this point shortly.

The society also noted a Law Council of Australia submission to the Senate Committee on Legal and Constitutional Affairs in March of this year in relation to the commonwealth bill, which also contains a suite of offences regarding childlike sex dolls, including importation offences. That bill amends a number of acts and seeks to prohibit the possession of child sex dolls, as well as criminalising the use of a carriage service to advertise or solicit childlike sex dolls and criminalising the use of a postal service to send such dolls.

I wish to remind the chamber that the commonwealth bill lapsed in April this year when the federal parliament was dissolved ahead of the election. It was subsequently reintroduced in July this year and was again referred to the Senate Committee on Legal and Constitutional Affairs for inquiry. The Law Council said in relation to the fault element that subjective awareness of the sexual nature of the childlike sex doll or other sex object that resembles a child is a key component of the proposed criminal culpability; that is, that the person should know that the childlike sex doll or object is, indeed, a sex object. The issue was considered by the Senate committee, but the committee ultimately determined that it is:

…satisfied with the requirement that a reasonable person would consider it likely that a doll or object is intended to be used by a person to simulate sexual intercourse with a child.

The committee did not consider the relevant provisions to the bill needed revision and, similarly, I do not think, with all due respect to the Law Society, that this bill required such revision for the same reasons.

The issue was revisited in the second Senate inquiry after its reintroduction in July of this year, which reported last week. The Law Council again raised the same concern about the fault element and suggested amendment to require that there be proof of actual subjective knowledge by the offender of the sexual nature of the childlike doll or other sex object. A representative of the Department of Home Affairs responded to that suggestion with the following quote:

During the consultation with law enforcement agencies and, obviously, the Director of Public Prosecutions, there was a view provided by the Director of Public Prosecutions that it does create difficulties in proving the offence. On the face of the bill, we require that a reasonable person would form the view that it would be used for sexual intercourse. In the Law Council's evidence this morning, as well, I think they made the point that, in practical terms, generally that equates to the similar test that if a reasonable person would view that it would be used for that purpose then that would also be the view of the offender. But it is very difficult proving intent in these cases. There is a range of evidence that people call, for example, and I think the Law Council outlined this as well. There's the kind of material that they've been searching for, what's on the shipping notice—a whole range of things. But, yes, why we have gone with the reasonable person test is on the basis of that advice.

On the advice I have received, and to maintain consistency with those commonwealth laws, I do not intend to amend the reasonable person test. To illustrate the point, I will quote from the submission of the Synod of Victoria and Tasmania of the Uniting Church in Australia to a second Senate inquiry into the commonwealth bill, where they said:

In February 2019, Brian Leach, a 62-year-old from Maidstone, Kent, was sentenced to 28 weeks in prison for having ordered a one metre tall doll from China for £500, which included a package of accessories which clearly indicated it was intended for sexual gratification…

In March 2019 there were media reports that a company, DVKFP, was caught allegedly selling childlike sex dolls on Amazon. It was reported that the company promised the dolls would be sent via a 'hidden delivery'. One of the dolls appeared to resemble a prepubescent little girl wearing a child's headband. Another doll appeared to be a teen wearing torn clothing that exposed her bra, had a gag in her mouth and her hands tied behind her back. It was reported DVKFP wrote that the dolls were 'suitable for games with different clothing'. Amazon removed the dolls from sale after the issue became public.

However, this was not the first time Amazon was found to be hosting the sale of childlike sex dolls. In April 2018, Amazon removed more than a dozen postings selling childlike sex dolls after being publicised by the BBC and public criticism from the Children's Commissioner for England.

In the pictures posted with the advertisements the dolls had been placed in sexual poses with descriptions such as 'Mannequin Sexy' and '100% mimics girl's body'. Several of the dolls were described as coming with 'sexy lingerie'. The BBC reported that it alerted Amazon to the sale of a childlike sex doll and Amazon removed the advertisement, only to allow it to be posted again three days later.

From the sickening examples I have provided from the Synod submission, it is unequivocally clear to all of us exactly what these so-called dolls are intended for. The Sydney Morning Herald printed a story in 2016 on a Japanese company called Trottla that sold these dolls online, promoting more than 100 different dolls on its website and boasting of supplying clients around the world.

That article reported that, according to the Trottla website, the prepubescent-looking girls were not for sex, but they are featured in its online galleries in various stages of undress or completely naked, dressed in lingerie or in leather and in various sexual positions Trottla founder, Shin Takagi, described himself and most of his male clients as paedophiles. Make no mistake, if a person is ordering one of these dolls they know exactly what it is for, its sickening, disgusting, nefarious purposes. In Shin Takagi's own words he said he was, 'helping people express their desires legally and ethically.'

Most shockingly, the Trottla website is still operating. I have written to the Minister for Justice in Japan, Yamashita Takashi, seeking a meeting to discuss ways in which we can work collaboratively to shut down such websites and ban the export of childlike sex dolls from Japan completely.

There are a number of updates in relation to global action that has been taken with respect to these dolls. For instance, Tennessee has passed laws outlawing childlike sex dolls this year, Florida has passed a law to make it illegal to possess, sell or gift such a doll with a penalty of up to five years, and the Singapore parliament has introduced a bill that includes similar offences for the possession, production, sale and distribution of these dolls. Unfortunately, the US Senate has failed to pass the Curbing Realistic Exploitative Pedaphilic Robots Act, despite the bill passing the House of Representatives unanimously six months after its introduction.

These examples demonstrate the sickening depravity surrounding childlike sex dolls, and show the increasing and worrying global issue that requires legislators around the world to move swiftly and, of course, decisively—as we have done here. I am sure my colleagues stand with me in their resolute commitment to preventing child exploitation here as far as our laws enable us.

Our bill fits squarely within that commitment, and we are intent on seeing the bill progress as quickly and as expeditiously through the parliament as possible. To that end, and as alluded to by the Leader of the Government, I have been in ongoing discussions with the Attorney-General and she has confirmed she will have carriage of the bill when it reaches the other place to ensure its swift passage through the parliament.

I am grateful for the support from all sides of politics that will see the passage of the bill today, and look forward to the next stages of the bill's passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 2, lines 6 to 8 [clause 2]—Delete clause 2 and substitute:

2—Commencement

(1) Subject to subsection (2), this Act will come into operation 3 months after the day on which it is assented to by the Governor.

(2) Schedule 1 will come into operation—

(a) 3 months after the day on which this Act is assented to by the Governor; or

(b) immediately after section 11 of the Statutes Amendment (Child Exploitation and Encrypted Material) Act 2019 comes into operation,

whichever occurs later.

I have provided detailed reasoning for this amendment.

The Hon. R.I. LUCAS: This amendment will ensure that the bill will not commence operation until after the Statutes Amendment (Child Exploitation and Encrypted Material) Act commences operation. The government supports the amendment.

Amendment carried; clause as amended passed.

Clause 3 passed.

Clause 4.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 3, line 7 [clause 4(1), inserted definition of child exploitation material, paragraph (a)(i)(B)]—Delete 'and' and substitute 'or'

These proposed government amendments are consequential upon the passage of the Statutes Amendment (Child Exploitation and Encrypted Material) Act 2019. The proposed government amendments to the bill will ensure that viewing an image of a childlike sex doll online will not amount to dealing with child exploitation material unless the image is of a pornographic nature. The amendments clarify the distinction between the offences that involve pornographic images or representations of the dolls and the offences involving possessing, producing or disseminating actual dolls.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 3, after line 7 [clause 4(1), inserted definition of child exploitation material, paragraph (a)(i)]—After line 7 insert:

(C) (without limiting subsubparagraph (B)) consists of, or contains, the image or representation of (or what appears to be the image or representation of) a child-like sex doll, or part of a child-like sex doll; and

The government moves this amendment for the reasons already given.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 3, line 10 [clause 4(1), inserted definition of child-like sex doll]—Delete 'a doll' and substitute 'an actual doll'

The purpose of this amendment is to clarify the distinction between the offences that involve pornographic images or representation of the dolls and the offences involving possessing, producing or disseminating actual dolls.

Amendment carried; clause as amended passed.

Clauses 5 to 8 passed.

New schedule 1.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–1]—

Insertion of Schedule 1, page 4, after line 11—After clause 8 insert:

Schedule 1—Related Amendments

Part 1—Amendment of Summary Offences Act 1953

1—Amendment of section 74BN

Section 74BN(1), definition of child exploitation offence—delete the definition and substitute:

child exploitation offence means—

(a) an offence against Part 3 Division 11A of the Criminal Law Consolidation Act 1935; or

(b) any other offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest;

Again, for the record, the amendment amends the Summary Offences Act which revises the definition of 'child exploitation offence' to put beyond doubt that childlike sex dolls are captured within that definition and, therefore, will be part of the previously referred to encryption powers framework.

The Hon. R.I. LUCAS: The government supports the amendment.

New schedule inserted.

Long title.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–1]—

Long title—After 'Criminal Law Consolidation Act 1935' insert:

and to make related amendments to the Summary Offences Act 1953

This amends the long title of the bill to reflect changes sought to the Summary Offences Act in amendment No. 2 [Bonaros-1], which we have just passed.

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. C. BONAROS (17:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.