Bills

Criminal Law Consolidation (Recruiting Children To Commit Crime) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 April 2024.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (15:30): I rise today as the opposition's spokesperson on the Criminal Law Consolidation (Recruiting Children to Commit Crime) Amendment Bill 2024. This bill seeks to amend the Criminal Law Consolidation Act 1935 by introducing a new offence explicitly targeting the recruitment of children for criminal activities. The introduction of this bill is an essential step in safeguarding our children from exploitation and manipulation by unscrupulous adults. As members of this legislative body, it is our responsibility to ensure that our laws protect some of the most vulnerable members of our society: our children.

The bill proposes the insertion of a new part 7D into the Criminal Law Consolidation Act 1935. This new section, 267AB, makes it an offence for a prescribed adult to, firstly, require, recruit or encourage a child to commit a significant or major indictable offence; secondly, engage in conduct that would constitute a major indictable offence if committed by an adult; and, thirdly, engage in conduct that would constitute aiding, abetting, counselling or procuring the commission of a major indictable offence if committed by an adult.

The penalties for this offence are severe. The maximum penalty is set at 15 years' imprisonment. If the relevant major indictable offence carries a higher penalty, that higher penalty will apply. For example, if a prescribed adult recruits a child to commit murder, the maximum penalty would be life imprisonment, which mirrors the penalty for murder itself. This ensures that those who exploit children face the total weight of the law.

Section 267AB(2) clarifies that a prescribed adult can be found guilty of this offence irrespective of whether the child engages in or agrees to engage in the criminal activity; the child is charged with or found guilty of the criminal activity; or the offence is committee within or outside South Australia.

A 'prescribed adult' is defined as a member of a criminal organisation who is 18 or older, or any other person who is 21 years of age or older. This definition ensures that the offence captures relationships with a significant power imbalance, targeting adults who exploit their influence over children. It is not aimed at young adults who may be close in age to their peers. 'Major indictable offences' are defined in section 5 of the Criminal Procedure Act 1921. Generally, these are offences with a maximum term of imprisonment greater than five years or carrying a fine greater than $150,000.

The introduction of this bill is of paramount importance for maintaining law and order in our society. By criminalising the recruitment of children into criminal activities, we are taking a firm stand against those who seek to corrupt and exploit our youth. This offence will serve as a solid deterrent to individuals and organised crime groups who prey on the vulnerability of children.

Children are our future, and our responsibility is to protect them from being drawn into a life of crime. This bill conveys that such exploitation will not be tolerated and will be met with severe consequences. It also aligns South Australia with other jurisdictions that have enacted similar legislation, ensuring a cohesive national approach to this critical issue.

The Criminal Law Consolidation (Recruiting Children to Commit Crime) Amendment Bill 2024 is a necessary and sensible development in criminal law. It strengthens our legal framework to better protect children and uphold justice. By supporting this bill, we are taking a significant step towards safeguarding our youth and maintaining the integrity of our society. The Liberal opposition in South Australia is pleased to support this bill. I urge others in this chamber to support it, ensuring that we stand united in our commitment to protect the most vulnerable and uphold the rule of law.

The Hon. S.L. GAME (15:34): I rise in support of this bill, which essentially creates a new offence specifically targeting adults who try to involve children in serious crimes. The bill introduces a new section into the Criminal Law Consolidation Act 1935. It works by focusing on major indictable offences, which are the most serious crimes in South Australia. The offence applies to prescribed adults. These adults are defined as:

members of a criminal organisation who are 18 or older; or

any adult 21 years of age or older, regardless of criminal organisation membership.

It is an offence for a prescribed adult to:

take any step to force or pressure a child to commit a major indictable crime;

entice or persuade a child to commit a major indictable crime; or

motivate or influence a child to commit a major indictable crime or to assist with committing one.

One Nation supports the aim of this bill to deter adults from involving children in serious criminal activity.

The Hon. C. BONAROS (15:35): I rise on behalf of myself to lend support to the Criminal Law Consolidation (Recruiting Children to Commit Crime) Amendment Bill 2024. The bill, as other members have said, echoes similar measures in Victoria and New South Wales by introducing a new offence targeting adults who exploit children to commit major indictable offences. As other members have described, it is a necessary step forward in safeguarding the welfare of vulnerable youth, recognising the profound and lasting damage caused by early exposure to criminality.

On that point, I am not sure that the Attorney is able to provide some figures at this point, but I think going forward will be able to, in terms of the cohort that this legislation is likely to capture. To be fair, I do not think we have that material available to us, and so this is one of those measures that is going to be tested in terms of how necessary or not it is in that respect, but it is intended to serve the purposes that the Attorney and others have outlined.

It does propose the most stringent penalty in Australia but it is, as I understand it, entirely consistent with other jurisdictions. When I say 'imposes the most stringent penalty', offenders face up to 15 years' imprisonment, irrespective of whether the intended crime is executed or if the child's culpability is ultimately established. In cases where the recruited offence carries a steeper penalty, the consequences, of course, may escalate accordingly. It does not impede the prosecution of the child perpetrator should that be deemed appropriate; it squarely targets those who seek to exploit the vulnerability of children for personal gain.

I point to the jurisdiction of Victoria, where there have been appalling examples of this type of exploitation where organised criminal syndicates are said to have coerced children into committing arson attacks on tobacco stores in exchange for small amounts of cash. We have seen a growing number of those occurring in that tobacco turf war that is exploding in Victoria. Of course, Victoria is not in isolation, even if we know that in that jurisdiction members of organised criminal organisations are known to prey on young people in residential care, facilitated by encrypted messaging platforms.

I think that raises the other question—these were just questions for my purpose during this bill. In this instance I have already said that an offence does not have to have been committed, so I think it will prove interesting how it is that we come to prove that someone has actually committed this offence in those cases where we capture them prior to any major indictable criminal offence being committed. Those issues have been quite topical in the last couple of years in South Australia, and indeed across Australia. I remain open-minded as to how it will work, given some of the issues we have noted publicly in relation to those matters.

By establishing age thresholds, 18 for organised crime affiliates and 21 for others, the bill is supposed to avoid unfairly penalising individuals who may be of similar age; for example, a 17 year old and an 18 year old. I certainly think the differentiation between individuals and members of organised crime gangs is sensible. I will just make a point in relation to this, because it was a topic that I spent a long time talking to the government's advisers about. We know what we are trying to resolve here, but we also know—and this is one of the reasons I support those particular provisions—it is very unlikely that we are going to have someone at 18 who is a full member of a bikie gang. I think that is young in terms of going through all the steps of becoming a member of a bikie gang.

Secondly, it still irks me that we have young people going from the juvenile jurisdiction into the adult jurisdiction—as they should for major indictable offences—but, even when shifting between jurisdictions, there is a lack of services that we provide to them available in both jurisdictions for treating what is often the underlying cause of their crimes in the first place. We know that there are lots of things that feed crime, but my concern remains around successive governments not investing anywhere near enough into rehabilitation services, counselling and psychosocial support and into rehabilitating those people, particularly those young people, who end up either in juvenile detention or, after turning 18, in adult detention and do not have the benefit of any rehabilitation while they are in there.

One of the reasons they do not have the benefit of rehabilitation while they are in there—and this is an issue that I continue to raise with the Attorney—is that in many cases when a minor, or indeed an adult, is remanded in custody, if they do not have the means or are unable to access bail or home detention, then they are likely to remain incarcerated until they are convicted. We know that currently you could be waiting 12 to 18 months at least for your matter to proceed to trial and for you to be convicted. So this person is in custody this entire time—12, 15 or 18 months, whatever the case may be—and during that time they have not qualified for any of those services that I have alluded to, and the reason they have not qualified is that they have not yet been convicted.

You have a captive audience, so to speak, by having that person in your custody at that point. If there is a time when you are going to offer effective rehabilitation services, drug and alcohol rehab and whatnot, that is the point in time. There is no point seeing them convicted, in many cases seeing them having served the time for which they have been convicted, and at that point or in months to come seeing them be released with $50 to get back home if they have one and not expect that, for some of those individuals, it is going to see them end up in exactly the same place.

When we are talking about these young people, I am not speaking in favour of these criminal organised activities, but who is the person or group of people they are most likely to go back to? The ones who are going to give them somewhere to sleep, the ones who are going to put food in their mouths and money in their pockets, despite what they have to do to get that. So we create this vicious cycle that sees the trajectory of these young people resulting in a lifetime of disadvantage and incarceration, having missed out. Like I said, they are a captive audience when they are in custody. It is not like they can go anywhere.

If you are going to offer those services, that would be the ideal time to offer them, not wait for 12, 18 or 24 months down the track, once they have been convicted, to then say, 'Well, now you qualify for rehabilitation or for psychological support or whatever other counselling you need.' In the youth jurisdiction I think it is even more critical, because the likelihood is that, once they turn 18, we know where they will end up too—they will end up in the adult jurisdiction. I make that point, because it is one issue that I continue to raise with the Attorney when we have these pieces of legislation come before us. It is also the reason I support the age thresholds as they are and also who they apply to as they are.

I do not think the new offence is the magic bullet—pardon the pun. It represents a step in the right direction. The reality is that we do not know how many people this is likely to capture, but I am hoping that once it is implemented and in place it will serve the deterrent effect the government is intending and that we are all looking for.

We need to confront the failures of our youth detention in South Australia. I am not laying any blame with those fine people in the youth detention jurisdiction, but for my part it is unconscionable that a disproportionate number of young males, particularly Indigenous youth and young males, find themselves detained and often on remand with inadequate access to rehabilitation services. I eagerly anticipate reforms aimed at raising the age of criminal responsibility in South Australia, recognising how ludicrous it is that we continue holding young children accountable for those actions at such a young age, but importantly in the absence of so many valuable services they need in order to be able to turn around their lives.

For my part, if we want to invest, that is where all the investment should be going, because we all know that prevention is better than cure, and there is no cure here. We have big problems in this space. I also eagerly await more focus on rehabilitation, counselling and mental health supports for those individuals, but especially for the qualification period to shift so that you do not have to wait until conviction to be eligible to access those services in either the youth or adult jurisdictions.

It is my position that we need alternatives to detention and that we need to prioritise children and communities and keep them safe. I fully endorse and support the intention of the government on this bill. It reminds me very much of other laws that we have passed, which I fully and wholeheartedly supported, where we have penalised severely those people who have tried to recruit minors for illegal purposes. It is appropriate that we move with the times, as other jurisdictions have already done in terms of implementing these laws and with the 15-year maximum imprisonment sentence, and wait to see how effective they are in terms of having the effect the government has outlined.

The Hon. R.A. SIMMS (15:48): I rise to speak briefly on this bill and to indicate that the Greens will also support it. The Greens have been advocating for many years, as members of this place will know, to raise the age of criminal responsibility. All of the research demonstrates that people under the age of 14 are far too young to understand the implications of the judicial system and our incarceration system.

In 2022, in this place, in introducing the Greens' bill to raise the age of criminal responsibility to 14, I outlined the ever-increasing body of evidence that supports this. The recent report from the Guardian of Children and Young People, entitled From Those Who Know, presents actual accounts and the views and opinions of young people who are living in the Youth Training Centre. I do reiterate the comments made by my colleague the Hon. Connie Bonaros: she is right in her assessment about the Youth Training Centre. This is not an appropriate place for young people to be held.

What we know is that when we lock young people up in these sorts of conditions, what we do is set them on a path of criminality that can continue throughout their lives. We lock them in to ongoing interactions with the criminal justice system, and that is just not right. It is precisely the opposite of what we should be seeking to do as legislators and as people who make policy in this state. I want to quote a few comments from that report. Some of the testimonies that are included are really harrowing. One young person stated:

I think that kids as young as 10 might not know what they're doing, but they could be influenced by other people that might pervert the way that they see everything.

I think that young person has made an important point, and one that is addressed by this bill—that is, the potential for young people to be used as surrogates, in effect, to commit crimes, and that is a practice that we need to shut down.

It is shameful that adults could seek to influence young people to commit criminal acts, and this bill really closes that loophole. It aims to address the issue by imposing a penalty on adults who recruit children for criminal behaviour. It is our understanding that current aiding and abetting laws that exist mean that an adult who has influenced a child to commit a crime can only be charged with that offence if there is, in fact, a crime that has been committed by the child. In effect, that means that if the child is below the age of criminal responsibility then they are not actually committing a crime and, therefore, it is difficult for the adult to be appropriately charged and convicted.

It is our hope, of course, that this government will raise the age of criminal responsibility to 14, in line with calls from the United Nations, the South Australian Council of Social Service, the Law Society, the Law Council, the Australian Medical Association, Change the Record and more, and we need to ensure that, if we do that, we do close this loophole as well. The Greens support this bill. It is our hope that it is the first in what we hope will be a suite of measures that come to us in preparation for raising the age of criminal responsibility.

I do want to commend the Attorney-General in that, having engaged with him over the years on this issue, I know he is someone who is passionate and genuine in his desire to address this. I urge the government to make this a priority and to ensure that they do everything they can to get children out of these inappropriate environments, to ensure that they can realise their full potential in life.

The Hon. R.B. MARTIN (15:52): The recruitment of children by criminals and criminal organisations is a despicable phenomenon that has no place in any society. Every child deserves the opportunity to live their lives free from the particularly sinister type of exploitation that is the subject of the bill we now consider.

The Criminal Law Consolidation (Recruiting Children to Commit Crime) Amendment Bill seeks to enshrine a new criminal offence in the Criminal Law Consolidation Act 1935 of adults recruiting children to commit crimes. The government's intention in creating the new offence is to target adults who, seeking to avoid criminal culpability themselves, recruit children to commit or to participate in the commission of crimes.

Under the provisions of the bill, persons convicted of this offence could be subject to 15 years' imprisonment or an even greater number of years if the offence that they have recruited the youth to commit can attract a longer sentence. Under our current laws, South Australia does not have a general offence provision that deals with adults who recruit children to commit crimes. The new offence is proposed to respond to such situations where the child is being defined as a person under 18 years of age.

The offence will specify that an adult can be convicted of the offence of recruiting a child to commit a crime irrespective of whether the child actually engages in the criminal activity, irrespective of whether or not the child is prosecuted or can be prosecuted for the crime, and irrespective of whether the child, if prosecuted, is found guilty of committing the crime. This aspect of the legislation is important because it gives emphasis to the intention that the persons targeted will be the adults who are recruiting children rather than the children who are actually being recruited.

The new offence will go towards protecting children and young people in South Australia from the deeply reprehensible people who would seek to encourage, lure or coerce them into engaging in criminal activity. If this legislation is passed, South Australia will have the strongest laws in the country to deter and punish those who exploit or attempt to exploit young people in this way. This bill represents another step in the Malinauskas Labor government's efforts to improve the safety of our community and the children and young people within it. Other reforms we are undertaking include:

bringing legislation to jail indefinitely persons who are repeat serious child sex offenders;

expanding the definition of 'child-related work' to prevent registered child sex offenders or people accused of registrable child sex offences from working within a setting where they will come into contact with employees who are children;

ensuring that outlaw motorcycle gangs do not need to be consulted before their clubhouses are declared as prescribed places; and

passing legislation to mandate home detention bail and electronic monitoring of domestic violence defendants who violently breach the terms of an intervention order.

We are also proud that South Australia now has the most police officers per capita and the lowest rate of recidivist offending of all Australian states, as the 2022-23 Report on Government Services indicated. I am proud of the Malinauskas government's efforts to improve safety across our community and especially to promote the safety and wellbeing of children and young people in our state. 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) (15:56): I would like to thank all members who have made a contribution on this important legislation and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: Can the Attorney-General confirm whether the increased penalties under section 58 of the Summary Offences Act, which deals with the offence of obstruction, will be impacted by this bill?

The Hon. K.J. MAHER: I thank the honourable member for his question. I can happily confirm that that will not be the case. That is a summary offence. The legislation we are passing now, I am advised, applies only to major indictable offences. While I am on my feet, the Hon. Connie Bonaros asked a number of questions about statistics and numbers. As she thought was the case, I do not have those. They are numbers that we might be able to ascertain, if they are able to be recorded, in the future.

Clause passed.

Remaining clauses (2 and 3) 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) (15:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.