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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-11-24 Daily Xml
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CRIMINAL LAW REVIEW, SEXUAL BEHAVIOUR

The Hon. R.B. SUCH (Fisher) (12:01): I move:

That this house requests the state government to commission a retired judge to undertake a comprehensive review of the criminal law as it relates to sexual behaviour.

This motion is not only focused on the issue of what is now often called 'sexting', where people send sexually explicit material on the net or in other ways, but it certainly encompasses that.

Members will recall that a few years ago the Hon. Andrew Evans in the other place moved for change in terms of sexual offences against children so that they could be dealt with retrospectively. As members would know, parliament is traditionally very much opposed to any retrospectivity on the ground that there can be an element of unfairness. I do not disagree at all with bringing to account people who have abused or sexually used children. I do not have a problem with that.

However, in the process of that commitment to deal with paedophiles, as they are often called—even though the term itself has been turned on its head from 'lover of children' to 'abuser of children'—some things have happened that I do not think any of us ever envisaged. What we now have is a situation where people who are not paedophiles, and no threat to children, have been dragged into a situation where they have now become sex offenders. As a result—and I am sure members have had people come to them—things that happened many, many years ago, in some cases 40 or 50 years ago, have now surfaced under the heading of 'sexual offences'.

I will give a couple of examples. I have mentioned to some people before that a prominent person in Adelaide—obviously I will not use the name—went swimming at a beach down south near Victor Harbor (I will not be too specific). He was naked and so were his mates. He was aged 14 or thereabouts, and he said that he did not even know what sex was; he did not have sex, he did not even know what it was to have it. Someone accused him or made a comment—maybe they bumped into each other or something while they were swimming naked at the beach—and as a result he was hauled before the local JP—not a magistrate, a JP; unqualified, a JP. He was told that if he did not plead guilty to gross indecency he would go to the reformatory and never see his family again.

Now, he was 14 or 15. That alleged offence has now surfaced 40 or 50 years later on his police record—never been there, never noticed, never seen it before. It has ruined his life to the point where, when recently contacting my office, he was talking about taking his own life. Another example is someone who has been happily married for 50 or 60 years. He had sex with his under-age wife and he got convicted of carnal knowledge. I know that no-one else would engage in sex before they got married. It is unheard of. They have been happily married for 50 or 60 years and now that person is down for carnal knowledge on his criminal record.

The point is that what has happened is that we have dragged in a lot of people who are not paedophiles, never were, never will be, and it is even worse than that. I do not have the specific figures for South Australia, but a report published on the website Yahoo in October this year said that more than 450 Australian teenagers have been charged with child pornography in the past three years as a result, mainly, of sexting.

Teenagers do silly things, like sending photos of themselves without much clothing on. They are not paedophiles, they never will be. I would say that 99 per cent of them never will be. What has happened and what is happening is that these people go on the sexual offenders' register and it ruins their life. I think that I might have mentioned this before, but one lad in Victoria was sent photos by a girl. They were unsolicited, he did not want them; and they did not even come to light on his computer until it was looked at by police for another reason. He is now on the sex offenders' register.

There are 26 Victorians on the sex offenders' register who are under 18. Some of them may be genuine sex offenders but a lot of them are silly teenagers who took a photo of themselves, or their girlfriend or their girlfriend took a photo, and they are classified now as sex offenders. They cannot become teachers; they cannot do a lot of things. In Queensland, again, over 400 teenagers have been charged with producing or distributing child pornography, the definition of which is if it is a sexual image of someone under the age of 18.

A recent guest on radio was Her Honour Judge Layton (who has retired from the bench), and when I put these issues to her on radio she agreed with me that the definition of 'child pornography' needs to be looked at because it is wrong. People think of it as something which it is not, and that needs to be looked at. That is an issue that needs to be clarified and properly defined.

The police call it 'child exploitation', not 'child pornography'. I do not think that is appropriate, either, because that suggests to me using a child as cheap or unpaid labour. A lot of what is called child pornography is actually child rape, child sexual assault, and I think it should be called that. That is one issue where I believe we need someone like Her Honour Judge Layton to have a look at these issues for the government to make sure that we have the definitions right; that we are not trapping young people—in particular under the age of 18—who do a silly thing like sending a photo of themselves or their girlfriend through the internet.

That is not what parliament had in mind when it was trying to deal with people who were paedophiles. The actual definition of 'pornography' is interesting. If you read a lot of the articles in the media—interstate, in particular—they never define what they are talking about.

If you go back to the ancient Greek—and my apologies to the Greek scholars—but 'pornai' means a whore and 'graphian' means to write. So, pornography in the original Greek translation is writing about whores. Today it is considered to be material with the intention to provoke sexual arousal, which is also considered to be obscene, but how do you define obscene? I like the definition by USA Supreme Court Justice Potter Stewart—I do not know whether it was tongue-in-cheek—who said in regard to pornography, 'I know it when I see it.' That is a pretty vague and loose definition.

That is something that needs to be examined; not only the definition of child pornography but the actual definition of pornography itself because, for some people, pornography could be naked people on a beach at Maslins. There are some people who do not accept any sort of nudity whatsoever. They would regard that as pornography. Someone else has a different version. I understand that Judge Layton has been talking to justices about this whole issue, but I think it needs to be brought out into the open as a public debate and discussion.

Another thing that needs to be looked at and zeroed in on is how these things relate to spent convictions because, at the moment, spent convictions do not apply to so-called sex offenders—to the two cases I mentioned before. The guy who went swimming naked with his mates when he was 14 cannot have the spent convictions law applied to him, nor can the one who is down as committing carnal knowledge for having sex with his wife to be.

Some of the other issues that I think need to be refined and reformed relate to the age of consent. If we look around the world, the definition is different. I think we need a proper and sound look at that issue because it obviously relates to one of the cases I just mentioned. We need to look at what constitutes the age of consent in this day and age. If we look at the statistics, we see that a lot of young people, a very high percentage of young people under the age of 18—whether or not they are telling the truth, I do not know—are already engaging in some sort of sexual activity. So, clearly, the law is not in keeping with what young people are actually doing. We need to have a look at that to see whether that definition is appropriate.

As I said earlier, we need to look at the question of sexting and how that relates to teenagers in particular in order to avoid scarring them for life through getting a criminal conviction for engaging in a bit of silly activity, which would normally be categorised as a prank or just being a silly teenager.

So, I ask the government, and the Attorney in particular, to commission someone like her Honour Judge Layton—I think she would be an excellent person, given that she is already doing some work in this area—to carry out a comprehensive review of the criminal law to make sure that it reflects contemporary standards of behaviour. I do not believe that the community, the parliament and the courts are able to do what they should be doing because they are held back or restrained by definitions and a law that in many respects is outdated, inadequate and inappropriate.

I think it is time to look at this issue in a systematic and rational way. As I have said, I believe that someone like her Honour Judge Layton would be ideal to conduct a review. It does not have to cost a lot, but I think it is an important issue which is negatively impacting on a lot of people who, for example, are not paedophiles and never will be. I think there are a whole lot of other related issues that need to be examined as well. I commend this motion to the house.

Debate adjourned on motion of Mrs Geraghty.

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