Sentencing (Serious Child Sex Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 March 2024.)

The Hon. J.M.A. LENSINK (16:52): I rise to indicate support for this legislation which provides for a sentencing regime to imprison and subsequently monitor repeat serious child sex offenders indefinitely while they remain incapable or unwilling to control their sexual instincts. I think it goes without saying that all sex offences are matters that members in our community find extremely disturbing and distressing and, for those who are victims, it obviously has a lifelong impact. As a parliament, we should do all things to prevent that level of trauma.

In relation to this particular bill, there are a range of clauses which provide for some mechanisms to determine how someone is identified as meeting this particular criteria and some checks in the system to ensure that they are not used indiscriminately. In terms of the regime, it will apply to a person who is found guilty of an imposed prison sentence for a prescribed child sex offence who serves all or part of their imprisonment in a correctional facility and is subsequently found guilty of what is entitled a triggering child sex offence. There is a new section 48D offence referred to, which occurs when it is:

committed against or in relation to a child;

an offence committed in another state or territory that corresponds to those in section 48D;

an offence against the commonwealth Criminal Code Act 1995;

a conspiracy to commit or attempt to commit any of the aforementioned offences;

the offence of aiding, abetting, counselling or procuring the commission of any of the aforementioned offences; or

an offence against the law of a foreign jurisdiction that corresponds to any of the offences.

Section 48D also refers to triggering child sex offences, which is a range listed in subsections 48D(a) to 48D(q) as well as in subsection (r), which is a conspiracy or an attempt to commit any of those offences, and subsection (s), which is an offence of aiding, abetting, counselling or procuring the commission of any of the aforementioned offences.

In section 48A(2), a sentence of indeterminate duration would apply to the detention of a person in custody until the sentence of imprisonment is extinguished by order of the Supreme Court under section 48M. There is a whole range of details that apply through the court system, which I will not go through. People can avail themselves of it.

In relation to the regime that is set for one of these individuals, there are potential circumstances in which they could be released on licence through an application to the Supreme Court. There are also required to be reports, from two legally qualified medical practitioners, on the mental condition of the individual in question. With those comments, I indicate support for the bill.

The Hon. S.L. GAME (16:56): One Nation supports all aims to increase penalties for repeat serious child sex offenders. This bill increases sentences for criminals who commit serious child sex offences again after already being convicted of one. It does this by creating a new category of offender, namely, serious child sex offender.

The bill defines specific crimes as 'prescribed child sex offences' and 'triggering child sex offences'. If a person classified as a serious child sex offender commits a triggering child sex offence they face a harsher sentencing. This includes the presumption that they cannot control their urges. The bill also shifts the burden of proof to the offender to show otherwise.

I support the bill's tough stance allowing for a potential indeterminate sentence or no fixed release date. I welcome the stricter conditions for release on licence, including electronic monitoring. People convicted of serious child sex offences have given up the right to walk freely amongst us. Police officers have the authority to arrest those who violate release conditions, and medical professionals will have clear guidelines for evaluating the mental state of offenders. These changes are necessary to keep our children safe from predators. I commend the bill.

The Hon. F. PANGALLO (16:58): What we have here is the Attorney-General and the Malinauskas government again talking up their rhetoric of being so tough on crime, especially child sex offenders. It is a populist vote winner, of course, and there is nothing wrong in the intent when you look at our court listings every day and see the alarming number of cases of child abuse being heard in every jurisdiction. It is quite disturbing, really, and there is a community expectation that our governments and police have laws in place to keep our children, and the public in general, safe from these predators—and we do so already.

Putting forward this legislation on the fly is problematic, and these reforms contain so many inconsistencies and conflicts with established judicial practices. It surprises me that the Attorney-General, as a lawyer—although I am unsure how long he practised or in which area of law he practised—does not seem cognisant of or perturbed by the concerns within the wider legal fraternity and, no doubt, the judiciary about what he is doing.

It appears from correspondence and comments I have received that the Attorney-General has again not fully engaged with the legal sector on this, apart from sending a draft of the bill to the Law Society, or conducted proper consultation with the police, for that matter, who will need to resource investigations at a time when their ranks are already stretched.

The act needs to be read with the knowledge that the prescribed first offence must have carried imprisonment wholly or partly in a prison. It is only then that the mandatory indefinite detention comes into effect. The act is not applicable to a person if they were given a suspended sentence, home detention, etc. New section 48C(g) makes it a prescribed child sex offence for someone to be charged with aiding or abetting the commission of an offence under the provision. You do not have to be the principal offender to fall under those provisions. There is a wide net of offences for triggering the provision, but it, oddly, does not include the offence of possession of child exploitation material. That is in section 63A.

The test to receive on-licence release extinguishment of the indefinite sentence is that the court must be satisfied that:

…if the person were given an opportunity to commit a triggering child sex offence, the person would be unlikely to commit the offence, or to otherwise fail to exercise appropriate control of their sexual instincts.

The onus for this is on the offender.

The Law Society, in its usual detailed and informed response, is not impressed or convinced by many areas of this bill, which have been described as quite draconian—in particular, the effect of mandatory sentencing of indefinite detention for child sex offenders. In his letter to the Attorney-General, the Law Society President, Alex Lazarevich, says about mandatory sentencing:

The concept of mandatory sentencing is not just capable of, but does, regularly produce injustice. Such was pointed out by the Victorian Court of Appeal recently in Buckley v The Queen. Members of the Criminal Law Committee reported examples arising under existing law in South Australia even from the mandatory sentences for sexual offences imposed a few years ago.

But the mantra for this government—virtually a blueprint taken from the pages of the Rann government—is just 'Rack 'em, pack 'em and stack 'em and throw away the key'. The Law Society rightly points out that this type of sentencing is far more severe than, say, a person convicted and given life for murder who can be released on parole in 20 years or less.

To be quite cynical, when can we expect a return to capital punishment? That might be more merciful. The Law Society also expressed concerns of a general carve-out proposed in new section 48J—that an offender would have difficulty in meeting the threshold set to be released on licence if they pose no appreciable risk to the community and are undergoing rehabilitation in an environment like a prison.

As so many inside who have come out will tell you, our rehabilitation programs for prisoners are substandard, almost as though they are just a token gesture to say they are there, hence why there is so much recidivism. The current waitlist for the sex offenders treatment rehab program in custody is beyond ordinary non-parole times. After being locked up for a considerable period, how are they going to be able to prove that they have reformed and the community is ready for them?

The Law Society says proposed sentencing arrangements will provide little incentive for a serious child sex offender to plead guilty, particularly when there has been a reduction in discounts and mandatory non-parole periods for repeat offenders. I point out that, regardless of the intentions to clear pathways in our justice systems, I am totally opposed to discounts on certain crimes committed, like murder, because there are no such discount provisions for the victims of those crimes who live with the impact for the rest of their lives.

Also, going to trial has blown out, with trial listings now going well into next year. Justice delayed is justice denied. Disincentivising early guilty pleas would place unnecessary trauma and aggravate psychological damage to witnesses who would be called to give evidence. The Law Society's submission is that mandatory sentencing should be avoided because of the pleading disincentive creating a financial burden to the state with even more offenders being held in the corrections system along with the need to police all these reforms, court delays and possible injustices risking a constitutional challenge.

You really have to ask the Attorney-General why he did not see any of this coming considering the phalanx of lawyers in Crown law, the DPP, and his own department available to him. The Attorney-General has not provided any data which suggests further punitive action on top of what already exists is necessary, or how much this will cost on top of the existing costs in the justice and corrections systems. Who pays for the mandatory electronic monitoring? Has the government considered who will cover the high costs that these additional legislative requirements will have, and the funding of more full-time employees at Correctional Services and SAPOL to cover the increased supervision requirements?

We know that Correctional Services are extremely understaffed in South Australia when it comes to supervision. There is not enough staff to cover the already huge amount of electronic monitoring occurring on home detention bail. This is the reason why there has been a reduction in pass outs for offenders, because Corrections cannot keep up with the monitoring. Five years minimum, 24/7 electronic monitoring is, pending statistics, a huge obligation. It is covered in section 48I(2)(e).

Section 48K identifies matters to be taken into account by the court for on-licence release. This includes evidence of the estimated cost of releasing the person. The court absolutely cannot consider the cost to the state in determining an application, when the state is implementing the legislation. This must be beyond its powers.

Probably one of the biggest concerns about this legislation is the encroachment on the role of the judiciary. The Law Society says it demonstrates limited faith in the judicial system to perform its constitutional rule by mandating an outcome and largely removing its sentencing discretion. Our courts are there to reflect the principles in sentencing, like punishment, deterrence, community protection and rehabilitation.

Studies on juries have shown that they have trust in the process and that judicial officers are not out of step with community expectations. They must follow the laws put in place for them. This legislation represents an unacceptable intrusion on the courts to do their job in imposing sentences that are already enshrined in law, and this kind of legislation should be discouraged. As Mr Lazarevich states, we the parliament should trust what they are doing and, through the appeals process, correct any errors when they arise. We should not be interfering with their role in dispensing justice. I share the serious reservations of the legal fraternity, and I am confident that if you had to conduct a poll among them they would overwhelmingly reject this bill.

While I have no empathy for heinous and evil sex offenders, as a civil libertarian with a conscience I cannot support this legislation in its current draconian form, which is masquerading as an important justice reform. The Attorney-General has a responsibility to balance fairly justice and the rule of law and due process with community expectations. He fails with this bill, and should it pass he will place the state at risk of an inevitable challenge to the High Court, along with the enormous costs this will add to our state budget when the money could have been better spent elsewhere in rehabilitation and associated education programs.

The Hon. R.B. MARTIN (17:10): The now Malinauskas Labor government took a commitment to the last state election to introduce legislation to create new laws for indeterminate detention for repeat child sex offenders. In amending the Sentencing Act 2017, our intention is to ensure that offenders can under the law remain incarcerated and out of the community until the court can be satisfied, and the public can be confident, that these offenders are able to control their sexual urges.

To give effect to these intentions, this bill proposes to create a new sentencing scheme that will apply for serious child sex offenders. This scheme will include provisions for such persons to be subject to electronic monitoring for the remainder of their lives. This bill is another element in our government's range of legislative efforts to strengthen protections for our state's children and young people, a further demonstration that we are determined to make lasting and effective change in this crucial area of law.

The proposed amendments will create a new sentencing regime that will apply to offenders who are imprisoned for a second time for what is deemed to be a serious child sex offence. Where a child sex offender who has already served a sentence of imprisonment for a first offence, including serious commonwealth child sex offences and child sex offences committed in other jurisdictions, is being sentenced for a second offence, it is considered very unlikely that the offender would not receive a custodial sentence.

Where a custodial sentence is to be imposed, these changes mean that the court must impose a mandatory sentence of indefinite detention, rather than having the need for a prosecutor or the Attorney-General to apply to the Supreme Court seeking an order of indefinite detention. It should be noted that the legislation provides that in cases wherein the court is satisfied that exceptional circumstances exist and the court determines that it is not appropriate to sentence the offender to indefinite detention, it may declare that the mandatory sentencing requirement does not apply to the offender.

The court may determine that such exceptional circumstances arise from the circumstances of the offending, from circumstances personal to the offender, or from a combination of both. In such circumstances, the offender would instead be sentenced in the usual way, which means they would likely still be sentenced to a term of imprisonment but that it would not be indefinite.

Once sentenced to indefinite detention under the regime this bill proposes to create, in order to be released on licence an offender will have to satisfy the Supreme Court that they are both willing to control, and are capable of controlling, their sexual instincts. The court must be satisfied that the offender no longer presents an appreciable risk to the community. Assessment by two medical professionals who are appropriately qualified to make these types of assessments will be required, and these people will be appointed by the court.

The existing scheme will continue to apply to sex offenders who do not meet the definition of a serious child sex offender. This includes sex offenders who have offended against adults, or those who have not previously offended and have not had a custodial sentence imposed for relevant child sex offences on a previous occasion. However, and importantly, applications can still be made to apply indefinite detention to offenders where it is necessary. This would include a very serious child sex offender who has not previously served a custodial sentence for a first offence but whose offending is of a degree of severity or scale that indefinite detention may be merited.

The Malinauskas Labor government is very strongly committed to doing all that we can to protect South Australia's children and their families from the abhorrent harms perpetrated by child sex offenders. This bill complements the other legislative efforts of this government to close loopholes in child sex offence laws and to prevent registered child sex offenders and those accused of registerable child sex offences from working with children.

This bill, it is hoped, will make a substantial difference towards ensuring that those who cannot be trusted to be within our community will not be within it. I recognise the efforts of the Attorney-General, his staff and his department in bringing this legislation and I commend the bill.

The Hon. E.S. BOURKE (17:14): This bill is just part of the Malinauskas Labor government's commitment to keeping our children safe from predators. If passed, the changes in this bill will mean that repeat child sex offenders will be detained indefinitely until they can satisfy the court they are able to control their sexual urges. When and if they are released they will face a lifetime of electronic monitoring. The bill has been the subject of consultation and it is a policy we took to the last election, along with a number of others that sought to crack down on child sex offenders. Already in this term of government we have:

increased the penalties for a range of child sex abuse offences, such as increasing the minimum penalty for gross indecency with or in the presence of a child from five to 15 years;

slashed sentencing discounts available for pleading guilty to possession of child materials or childlike sex dolls and strengthened bail laws;

passed legislation to ban child sex offenders from working in places that also hire underage employees, such as hospitality and retail. This amendment made South Australia the first jurisdiction in the country to have a default restriction on accused child sex offenders working with children and child employees; and

strengthened Carly's law so that tougher penalties apply to offenders who communicate online with police officers posing as children.

The community rightfully expects that dangerous repeat sex offenders are not freely mixing in society. Our children have the right to feel safe when they are going to the shops, working at their part-time jobs or catching the train. Parents have the right to expect they will be safe.

This bill introduces a new sentencing regime under the Sentencing Act and the amendments will apply to offenders who are imprisoned for a second time for a serious child sex offence, including where the first offence has been committed in another Australian jurisdiction. As many of my colleagues have already highlighted in this chamber, the new regime will apply to offences for which the court decides a term of imprisonment is warranted.

It is expected that it will be extremely unlikely that a repeat child sex offender, who has already served a sentence of imprisonment, will not receive a custodial sentence. However, there are many circumstances where the court decides that a mandatory custodial sentence is not warranted. In that case the court will apply a sentence in a normal way.

As many have also said, it is important that the government meet community expectations on this issue. The Premier and the Attorney-General have been unapologetic about advancing these laws to protect the most vulnerable people in our community—our children—and I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:18): I thank honourable members for their contributions. I thank those who have made contributions for their general comments of support. I will turn to some of the contributions today. There was the suggestion in one of the contributions that this is rushed work that has not taken into account legal principles.

I want to say that that could not be further from the truth and, quite frankly, I find it insulting to the many dedicated officers and lawyers in the Attorney-General's Department who spent the better part of two years developing this legislation in a very meticulous way. I place on record my thanks to those lawyers who have considered the criminal law and constitutional law aspects, amongst other aspects, in developing this legislation, which, after all, was an election commitment and work started on this as soon as the new government took office.

I note the Hon. Frank Pangallo's newly found faith in our judicial institutions, and I will very happily quote back some of the commentary that the Hon. Frank Pangallo has made today when he rails against things that judicial institutions do, but I appreciate his faith in our judicial institutions. I have to say I would like to join with the Hon. Frank Pangallo and share my faith in our judicial institutions and how they operate in South Australia, but that does not mean we as a parliament should not take action in what we believe to be appropriate sentences for crimes.

In relation to a comment that was made about extra resourcing needed for police investigations, I must say this completely and fundamentally misunderstands the very nature of the bill that is before us. This has nothing to do with police investigations. Whether or not this bill passes, police will investigate these crimes in the same way that they do, with the same resources that they have. What this bill does is change the way very serious sexual offenders against children are sentenced if they are given terms of jail. To suggest that in some way this has any sorts of implications, particularly resourcing implications, for police in their investigations is a critical and fundamental misunderstanding of the entire nature and the operations of this scheme.

At the end of the day, I have to say this is really simple, in my view: if you do not want to be subject to the indefinite detention regime proposed under this bill, do not commit serious sex offences against children. It is that simple. I thank honourable members for their contribution and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. F. PANGALLO: The Attorney-General stated in his summing-up that a whole range of lawyers were briefed as a result of a commitment from the government and then an election promise. Essentially, was it the Attorney-General who briefed the lawyers and asked them to come up with something that would meet the requirements of their promise, so they really had no choice?

The Hon. K.J. MAHER: I thank the honourable member for his question. I think he misunderstands what 'briefing lawyers' means. We did not brief external counsel in relation to this. We had lawyers and policy officers within the Attorney-General's Department spend countless hours looking at the ways this scheme could best operate. I, for one, want to place on record my thanks to those dedicated officers.

The Hon. F. PANGALLO: Did the Attorney-General consult with the judiciary—the Chief Justice and others—about what was proposed?

The Hon. K.J. MAHER: My advice is, yes, we did.

The Hon. F. PANGALLO: What was the advice from the Chief Justice? Did he have concerns about mandatory sentencing?

The Hon. K.J. MAHER: As is standard practice, when we have internal consultations, these are not things that we tend to publicly agitate and reveal the contents. I appreciate the fact that, in doing so, we have, for a whole range of things, a very constructive ability to consult internally with areas like the judiciary.

The Hon. F. PANGALLO: Did the Attorney-General receive any opposition views, apart from the advice of the bench?

The Hon. K.J. MAHER: Yes, we did receive opposition. There were criminal defence lawyers, for example, who oppose this bill, just as the Hon. Frank Pangallo does.

The Hon. F. PANGALLO: Can he indicate, without naming them, what their opposition was to this legislation?

The Hon. K.J. MAHER: The Hon. Frank Pangallo has canvassed some of the issues that he relayed from the Law Society. There are views that the Hon. Frank Pangallo has outlined, that we should not be imposing these sorts of sentences on people and that it should be completely and utterly in the discretion of the court to decide what the appropriate jail time is. We do not share those views. If you commit a second serious child sexual offence our view is that you have lost that privilege to be in society until you can show you are not that menace to society that has got you in jail for a second time.

The Hon. F. PANGALLO: Was there concern expressed that this legislation would remove the separation of powers and give the legislative branch power over the discretion and role of the judiciary? Does that concern the Attorney-General?

The Hon. K.J. MAHER: I thank the honourable member. Without going through all the submissions that were received, I do not recall the concept of separation of powers, which of course operates differently at a state level than it does when you talk about the separation of powers under our constitution. But, certainly, we took the very best advice we could in crafting this legislation to make sure that it did what we intended in the best possible way to stand up to any particular sort of challenge.

The Hon. F. PANGALLO: Is there any similar legislation in other jurisdictions and can he tell us where?

The Hon. K.J. MAHER: Yes. I can advise that absolutely there is similar legislation and you do not even have to look across a border or internationally. You just have to look at section 57 of our Sentencing Act, which provides for indefinite detention for people unwilling or unable to control their sexual instincts, which is exactly the language that is used here. So, yes, there is similar legislation and you do not even have to look across a border or across the seas to find it.

The Hon. F. PANGALLO: That was not the question. The question was: is it in other jurisdictions apart from here? We already know about that law that is in place, which would probably address this here and shows that this is not necessary. What other jurisdictions have this type of legislation?

The Hon. K.J. MAHER: I thank the honourable member. I am advised that every state and jurisdiction except the ACT has some form of continuing or indefinite detention.

The Hon. F. PANGALLO: Can I go to the costs. When the Attorney's lawyers were preparing the legislation, did they take into account the costs that would have to be incurred to effectively ensure that this legislation is effective?

The Hon. K.J. Maher: I have no clue what you mean, Frank.

The Hon. F. PANGALLO: What I am saying is, if it goes through—and it is likely to go through today—who is going to pay for the mandatory electronic monitoring?

The Hon. K.J. MAHER: I thank the honourable member for his question. Like anything that is a requirement of any sentencing or other regime, electronic monitoring will be the authority's. I think in most cases it is the Department for Correctional Services that monitors them. I have to say that I fundamentally disagree with the Hon. Frank Pangallo on the current line of questioning. There will be a cost. Exactly what that cost will be will be borne out in the years to come, but I have to say that, whatever that cost is, I think it pales into insignificance compared to the cost victims and their families that are inflicted by serious child sexual offenders face.

The Hon. F. PANGALLO: So, effectively, what you are saying is whatever it takes, whatever it costs. Has the government considered the funding of additional employees at Corrections to cover the increased supervision requirements?

The Hon. K.J. MAHER: I thank the honourable member for his question. As I have said, however the numbers fall out over the coming years will be something that will be subject obviously to monitoring and to potential future budgetary considerations. As I said, obviously the Hon. Frank Pangallo and I have an absolutely fundamental difference of opinion and view on this. I think the costs of monitoring a number of extra serious child sex offenders pales into insignificance compared to the cost that is borne by families and victims of serious child sexual offenders.

The Hon. F. PANGALLO: Having been in custody, how do offenders show the court that they have reformed and no longer pose a risk?

The Hon. K.J. MAHER: My advice is that, at the end of the day, this scheme operates very similarly to the regime under section 57 of the Sentencing Act; that is, like the current scheme that operates in South Australia, this scheme contemplates that a person subjected to it would provide two medical reports to the court for the court to take into account to ascertain whether that person is now willing and able to control their sexual instincts.

The Hon. F. PANGALLO: This will obviously relate to rehabilitation programs in corrections: is the Attorney aware of the difficulties of prisoners, regardless of whether they are sex offenders or not, accessing these programs within an acceptable period of time?

The Hon. K.J. MAHER: I am aware that there are many rehabilitation programs that run in prisons right across South Australia that, every day of the week, as I understand it, prisoners have access to already.

The Hon. F. PANGALLO: Does the Attorney see that there could well be a nil incentive to plead guilty because offenders know they will then immediately be indefinitely detained, therefore creating another backlog and pressure on the judiciary for trials?

The Hon. K.J. MAHER: Once again, this seems to be one of those fundamental differences that we have in this area. The idea of indefinite detention of serious child sex offenders who have committed a second offence versus a concern about incentives to plead is far outweighed by making sure these people are locked up and away from society, is the government's view.

The Hon. F. PANGALLO: It was the view of the Law Society and other legal practitioners that, whether the client is going to be indefinitely detained or just generally looking at a big sentence, they will often have little consideration of a guilty plea in the first instance. Does the Attorney agree with that?

The Hon. K.J. MAHER: I am not exactly sure what the question was, but I think what the honourable member is putting forward flies in the face of some of his comments from his second reading speech where he railed against the idea of offering sentencing discounts for early pleas—a method of making sure that people plead guilty and not having a trial.

Almost completely to the opposite now, the honourable member is arguing that it is problematic to not have things that encourage that early guilty plea. I think I understand what the honourable member is saying. It is not a concern that I share, and it seems to be at odds with the concern the honourable member raised during the second reading stage in terms of sentencing discounts on guilty pleas.

The Hon. F. PANGALLO: Lastly, and just for clarification: the only aspect of discounts I oppose are in relation to murder. That is where I oppose discounts and I made that quite clear.

Clause passed.

Remaining clauses (2 to 8), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.