Motions

Child Sexual Assault

Adjourned debate on motion of Hon. L.A. Henderson:

That this council—

1. Acknowledges that 20.8 per cent of criminal cases listed in the South Australian District Court from Monday 6 May 2024 to Tuesday 11 June 2024 were child sexual assault and child exploitation-related matters;

2. Condemns the prevalence of child sexual assaults in South Australia;

3. Acknowledges that reported child sexual assaults are only a fraction of assaults that have occurred;

4. Acknowledges the recent calls for action to eliminate family, domestic and sexual violence; and

5. Calls for the Royal Commission into Domestic, Family and Sexual Violence to address the concerning prevalence of child sexual assaults within South Australia.

(Continued from 19 June 2024.)

The Hon. S.L. GAME (22:18): I rise briefly to support the motion by the honourable member and to express my concern at the shocking statistics quoted. I also endorse the member's call for the South Australian Royal Commission into Domestic, Family and Sexual Violence to address the prevalence of child sexual assaults within South Australia. I also add that I believe it is imperative that all corners of our community be explored in this investigation, especially those areas, communities and demographics where family, domestic and sexual violence is most prevalent.

In endorsing this motion, I call on those in authority, including and especially the royal commissioner herself, to regard all offenders and offending as equal and subject to the same measures that, when enacting, will help reduce the prevalence of child sexual assaults within South Australia.

The Hon. C. BONAROS (22:19): I thank the honourable member for bringing this motion to the Legislative Council and agree wholeheartedly with the condemnation of all forms of child sex abuse. This is an issue, obviously, that I and many others in this place have advocated against and will continue to do until certainly, in my case, my last day here, whenever that may be. The safety and protection of children must always be at the forefront of our minds and actions, and as a parliament we need to note that we took a significant step in 2020 by reducing the early guilty plea discount of up to 25 per cent for serious crimes, including child sexual assault.

This pared back the incentive for defendants to seek lighter sentences through early pleas, particularly for heinous crimes against children. Simplistically, some would even say there should be no discount for pleading guilty to these types of offences, but we know the reality is much more complex in child sex offences; especially when very young children are involved there are significant challenges. The stigma alone attached to pleading guilty to such offences, combined with a high evidentiary standard of beyond reasonable doubt, often leads to defendants effectively hedging their bets and taking their chances at trial. This is especially true when vulnerable child victims are required to give evidence—a process that we know all too well is traumatic and complicated. It is the very reason, as reflected in the motion, only a fraction of assaults are reported and result in criminal charges in the first instance.

It is important to note that comparing child sex offences with other crimes, such as robbery or drug offences, is not comparing like with like. The dynamics of these offences and the burden on victims, particularly children, are vastly different. Viewing the issue through a simplistic lens, such as referring only to the daily cause list, leads to blanket assumptions that do not account for the complexities of these cases. I would hasten to say that I would be more focused on better insuring improved outcomes and experiences for victims rather than the number of offenders on the cause list in any given week or month.

I think all of us acknowledge that the rates of child sex offending—in fact, I know that all of us acknowledge—are alarmingly high, and we have to remain vigilant in addressing this crisis, but it is an alarming reality. Sadly, no matter how harsh our laws and no matter what we do in this place, the reality is that sexual offending will always exist, and we need to do our level best to ensure that where we pass laws they are commensurate with the offending in question and that it is the appropriate legislative response.

In that context I also indicate my support for the government's amendment to the motion, which acknowledges the royal commission currently examining these issues. The inquiry is a crucial step towards understanding and improving how we handle child sex abuse cases, and I think we can all agree this is a positive development.

Just today the Australian Institute of Criminology released its report into the review of child sex abuse and sexual assault legislation. That report was commissioned by the federal Attorney-General's Department and takes a deep dive into all of the issues surrounding consistencies and inconsistencies in legislation across the nation and federally when it comes to this area, but also the sort of conduct and complex issues we are talking about. The report has looked at issues of conduct, at aggravating and specific circumstances, including victim age, relationships of care, violence, coercion, criminal organisation involvement, defences and excuses, relationships between the defendant and the victim, occupational duties, coercion, and knowledge of victim cognitive or mental impairments, amongst many others.

It looks at sexual violence, and it also considers the complexities that exist in the real world and the very real complexities that exist in this space as part of that body of work that is being done to strengthen the criminal justice response to sexual assault. I think it is worth noting, as is reflected in that report—and it is a lengthy report, and I encourage members to read it. I have certainly cast my eye over it this morning, and it is confronting.

But I think it is worth noting that SA is on the front foot when it comes to many of these issues, particularly when it comes to child exploitation, when it comes to changes in our terminology and language, when it comes to offences like stealthing and other offences around sexual offending against children and, of course, when it comes to improved justice outcomes for victims. These are all really important things that we cannot dismiss given the complexities involved in this area.

Like I said, no-one wants to see this many matters on the cause list, but we have to also be very mindful of the realities that we are confronted with in these sorts of cases. Simply looking at the cause list in and of itself does not mean that our laws are not harsh enough, that legislation does not go far enough or that we are not doing our level best to address this. It simply means that, as always and unfortunately, defendants will use that system and, as I said, hedge their bets to try to get the best outcome, knowing full well that there is a victim who is going to be put through the wringer again once one of these matters proceeds to trial.

That is the unfortunate part of our criminal justice system that absolutely warrants further attention from us. I think that is the point that is made in this report and in the body of work that is being done nationally in terms of improved justice systems for minors and adults alike who are the victims of sexual assaults. Just specifically in relation to South Australia, I will note that the report says that in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse's final report:

…the South Australian Government proposed several reforms to strengthen child sexual abuse laws. These reforms were detailed in the Statutes Amendment (Child Sexual Abuse) Bill 2020…and included amending the Criminal Law Consolidation Act 1935…to strengthen child sexual abuse offences, ensure stricter controls around reporting suspected abuse and strengthen the criminal justice process to better protect victims and survivors (eg changing how victims can give evidence and ensuring that sentencing standards were in line with contemporary understandings of child sexual abuse). Following drafting of this Bill, the South Australian Attorney-General's Department undertook consultation with the community. [The act] subsequently came into operation in June 2022. Reforms it introduced included new criminal offences under s 64A (Failure to report suspected child sexual abuse) and s 65 (Failure to protect child from sexual abuse) of the Criminal Law Consolidation Act...

They are the sorts of changes I refer to when I speak of improved access to justice for victims and commensurate levels of penalties for perpetrators. The report notes:

Repeated sexual abuse or persistent child sexual abuse is criminalised in South Australia under s 50…of the Criminal Law Consolidation Act…Recent academic inquiry into the operation of the law in South Australia and Queensland using relational terminology to characterise abuse of a child by an adult over a period of time has argued that the concept of 'persistent sexual abuse' is more appropriate and has recommended legislative reform to reflect this...Following the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023…being passed, s 50 of the Criminal Law Consolidation Act…is now titled Sexual abuse of a child.

They are the sorts of improvements we have made to our law. I know that all of us are committed to making further improvements. I think it is a credit to South Australia that these have been acknowledged at the federal level in this report and speaks to the level of commitment that politicians of this parliament from all persuasions have had in terms of combating this issue.

I do not think it is fair to say that perpetrators have an easy ride in South Australia. That said, I do think the cause list is high, but I think that we need to acknowledge the complexities of that, as I said at the outset, given the issue that we are dealing with and given the lengths that a defendant will go to in order to try to avoid the ramifications of a guilty plea.

All in all, of course, all of us want the same thing here, and that is to keep our kids safe from child sexual abuse and to ensure that those who are offending are where they ought to be—and, frankly, that is not roaming around free and presenting risk to other children. We need to be doing our level best, going forward, to ensure that we are in line with the sorts of recommendations that have been recommended by this report today to address any inconsistencies where they do exist, but acknowledge also South Australia's role in terms of leading that charge in many respects, and also, of course, to await the outcomes of the royal commission which will be charged with looking at this issue specifically as well. With those words, I commend the motion and indicate my support for the government amendments that will be moved in due course.

The Hon. E.S. BOURKE (22:31): I move to amend the motion as follows:

Paragraph 5:

Leave out 'Calls for' and insert the words 'Awaits the findings of'; and

Leave out 'to address' and insert the words 'regarding'.

I rise today and indicate that we are moving amendments to this motion, which I believe the opposition are supporting. The Malinauskas Labor government utterly condemns all forms of child abuse and child sexual assault. It has been a key policy priority of the government to ensure we have some of the toughest laws in the nation in this area, as members would know, having passed many bills on this matter in the term of this parliament. This has included lifting penalties for a range of child sex offences, as one of our very first bills after coming to government; passing laws to indefinitely detain serious repeat child sex offenders, the toughest of their kind anywhere in the nation; and passing laws to ensure that registered child sex offenders and those accused of registrable child sex offences must not work in businesses that employ children if their employment would involve contact with child employees.

The motion draws on the number of listings of child sex offence matters in the District Court as a measure of the level of child sex offending in this state. It is this government's view that this does not provide a complete picture of this issue and is not an accurate indicator of the crime's prevalence in our state. This is for two reasons: the number of hearings that occur in a given criminal matter, and the priority these matters are given in the hearing lists. Priority in the hearing lists is determined by factors such as a case's complexity, the personal circumstances of the parties, the availability of counsel and, above all in child sexual offences, by laws that were put in place by the Rann Labor government in 2008 to ensure that the courts give priority to child sexual offences and allow them to be dealt with as quickly as the justice system allows.

As a result of those laws, our criminal courts rightly give priority to child sexual offences ahead of other criminal matters to ensure child victims are not made to go through a long court process. Section 50B of the District Court Act provides that when the victim of a sexual offence is a child or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions, it is classified as a priority proceeding. There are similar sections in the Magistrates Court Act and the Supreme Court Act.

This classification greatly reduces the standard length of time that these matters spend awaiting trial in the District Court and indicates that our parliament recognises that sexual offences committed against the most vulnerable members of our society—our children—will be treated seriously and with priority. Victims of child sexual offences are, therefore, treated with priority by the court listings and may appear more on a particular day's case list than other less prioritised offending.

In simple terms this means that in a trial of a person charged with a sexual offence, in which a child is a victim, it will be listed significantly quicker than other criminal offences. However, it must also be recognised that child sexual offences, especially those committed against multiple victims across multiple years, can increase the complexity of a matter and therefore the required hearing and trial preparation time.

Further, under section 12AB of the Evidence Act 1929, child victims or witnesses are able to take part in pre-trial special hearings, with special arrangements to give their evidence, which also increases the total number of hearings a child sex offence may have compared to other criminal matters.

I do not bring these matters to the council's attention to suggest that the prevalence of child sex offences within South Australia is not concerning. Child sex offences are so despicable that no rate in the community could be considered acceptable. However, there is far more nuance to tracking its prevalence in our community than by simply counting the percentage of criminal cases listed in the courts.

I would now like to briefly address my amendments. The government otherwise supports the motion, but is concerned that the final paragraph seeks to direct a royal commission in how it undertakes its work. The Royal Commission into Domestic, Family and Sexual Violence is currently underway, led by Commissioner Natasha Stott Despoja AO. The royal commission is undertaking its inquiry in accordance with its terms of reference and as directed by the commissioner. The government does not consider it is appropriate for a house of parliament to seek to direct or add to the terms of reference of a royal commission.

However, in keeping with the spirit of the motion, my amendment simply adjusts the final paragraph of the motion to await the findings of the royal commission. Should the royal commission receive evidence on this matter and determine to make findings or recommendations, I am sure the council will eagerly consider them. Ultimately, it is a matter for the commissioner as to whether it does though. With those words, I indicate the government supports the motion with our amendments and thank the member for bringing it to the chamber.

The Hon. L.A. HENDERSON (22:36): I would like to thank honourable members for their contributions, but in particular I would like to thank the Hon. Sarah Game, the Hon. Connie Bonaros and the Hon. Emily Bourke for their contributions on this motion and acknowledge their advocacy in the child protection space more broadly as well.

Earlier this week we saw The Advertiser report the shocking sex case statistics. In this article it was revealed that on Monday 48.27 per cent of District Court cases fell within the category of child sexual abuse cases. Between 4 September 2024 to 16 October 2024, roughly around 22.5 per cent of all cases listed in the District Court were child sexual assault-related cases. From 4 May to 11 June 2024 that figure was around 20.8 per cent.

This is being described by some as an epidemic and that the courts are drowning in these matters. Of course, we know that the matters that ultimately end up before the courts are but a small fraction of offences that do, in fact, occur. The reality is that there would be many more people in the community who are impacted by such offences.

The prevalence of child sexual abuse is abhorrent and unacceptable. It is a conversation that we must continue to have and we must continue to have this conversation until it is no longer an issue in our community. We have an opportunity through the establishment of the Royal Commission into Domestic, Family and Sexual Violence to address the concerning prevalence of child sexual assaults within South Australia, especially within the context of the family home.

I note there is an amendment in the name of the Hon. Emily Bourke. The opposition will be supporting this amendment today. I did first learn of this amendment through a group email that was sent to members and staff around 11.37am today. That was less than three hours before the Legislative Council was due to sit. Considering that the government is consistently reminding the crossbench and the opposition that they must receive all amendments or motions or bills prior to their caucus meetings on Tuesdays, I think it would be appropriate if the government met their own standards. It is safe to say that receiving a copy of this amendment mere hours before it was taken to a vote would not meet Labor's standards and is more of a 'do as I say, not as I do' moment. Nonetheless, we will be supporting this amendment today. With that, I put the motion.

Amendment carried; motion as amended carried.