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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-07-07 Daily Xml
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Bills

Statutes Amendment (Child Sex Offences) Bill

Adjourned debate on second reading (resumed on motion).

Mr BROWN (Florey) (15:35): There are not too many things that this house does and this house debates that have more importance than protecting the innocent members of our society. That is why issues regarding child sex offenders is something I take extremely seriously, as I know everyone in this house does, and should be something that should be above politics and the ordinary rancour of many things we discuss in this house.

I am very pleased that the government has brought forward this particular bill, implementing, as it does, not only a few things that were put forward by the previous government that unfortunately were not able to be done before the election but also a few of the election commitments that the government took to the recent state election.

For example, two of the important election commitments this bill seeks to accomplish are the increase in penalties for a range of child sex offenders in the Criminal Law Consolidation Act and it amends section 139A of the Criminal Law Consolidation Act, colloquially known as Carly's Law, to ensure that the offence can apply where the unlawful communication is made to a fictitious child. It also updates the list of registrable offences in the Child Sex Offender Registration Act 2006. It is also, as I said before, largely a combination of initiatives by the previous government and also ones that this government took to the recent election.

I will turn briefly to the particulars of the bill before I expand on particular sections of it. Firstly, I will talk about the increased penalties for child sex offences. The increased penalties were informed by the equivalent commonwealth and interstate offences and are relative to other offences within the Criminal Law Consolidation Act. This is important, as it is important not to create discrepancies between sentencing provisions in our state law and also that of the commonwealth because that can often lead to perverse outcomes, where decisions are made to prosecute offences under particular jurisdictions just because of the penalties that are involved, rather than because of the nature of the offences that have been committed.

Not only does this particular bill raise penalties on child exploitation material offences but it also makes changes to the age distinction penalties—for example, the existing law says that they are aggravated for children of 14 and under—and removes them for image-based offences. That way, because the new proposed maximum penalty is higher than the current aggravated penalty, it will be capable of covering offences in a wide range of circumstances, including different age children.

This is largely because the way the act is currently structured requires personnel involved in law enforcement to be exposed to child exploitation material, colloquially known as child pornography, which creates an undue burden on those investigators; not only that, but it can also hold up investigations. What the bill proposes to do, by increasing those maximum penalties, is effectively increase the ceiling so much that aggravation is no longer really a factor so that we can make sure that people are properly prosecuted, and indeed properly convicted and punished, at a higher level and to make that distinction no longer necessary.

One of the other things the bill does that is particularly important in my view—and I will expand on this later—is the amendments to section 139A of the Criminal Law Consolidation Act again, colloquially known as Carly's Law. This relates to the fictitious children provision, so it will now be legal for law enforcement personnel to effectively impersonate children and make sure that offenders are convicted on the basis that they provided a fake age to a law enforcement officer, even though they purported to be a child who was under age.

I understand that this has come about because there were some difficulties in the law and that the result of that might be that prosecutions might necessarily fail. These amendments will see police have more charging options for unlawful communications with fictitious children, and sentencing courts can then consider the age the offender believed the child to be when applying sentencing provisions. I would like to expand on that in a moment.

The bill also amends the list of registrable offences. The added offences are mainly taken from the Commonwealth Criminal Code and have recently been passed by the commonwealth parliament, as I understand, sometime during the last year. There have also been some additional state offences, such as offences involving childlike sex dolls, indeed Carly's Law itself and causing serious harm to a child if it arises from the same incident as a sexual offence.

In clauses 20 and 21, this bill makes amendments to home detention orders and suspension of imprisonment on a defendant entering into a bond respectively. These provide additional considerations for the court to take into account when considering the victim's age and the age difference between the defendant and the victim, where the victim is a fictitious person pursuant to section 63B(3) of the Criminal Law Consolidation Act.

Again, this is all about providing tools for the armoury of our law enforcement personnel to make sure that people who are engaged in this sort of behaviour are properly punished. On those lines, I would like to provide some information to the house about something known as Sweetie 2.0, which is a project introduced by a not-for-profit organisation in the Netherlands. I am very grateful to the parliamentary library for preparing some information for me on this particular topic. The information provided on this program states:

Webcam sex tourism, the act of engaging children in webcam prostitution, is a growing international problem. Not only does webcam sex tourism provide easy access to child abuse and child abuse images for child abusers, it is also a crime that has a comparatively low risk for the offenders. Live webcam performances leave few traces and little evidence that law enforcement can use. Further difficulties arise from the fact that webcam sex tourism often has a cross-border character, which causes jurisdictional conflicts and makes it more difficult to obtain evidence or even launch an investigation…

The Dutch children's rights organization Terre des Hommes (TdH) was the first NGO to actively tackle webcam child sex tourism by using a virtual character called 'Sweetie' to identify offenders in chat rooms and online forums. Since then, sweetie has been further developed into a chatbot, called Sweetie 2.0, to automate interaction with offenders…

In 2013, using the virtual girl Sweetie, Terre des Hommes researchers identified more than 1,000 individuals seeking to attract children via webcam for sexual purposes. Their report then served as an international wake-up call and the UN put it on its agenda. In the Philippines, websites that sexually exploited children have been shut down and predators prosecuted with the results of such research handed over to law enforcement authorities. However, many predators were able to remain in the shadows…

To stop this phenomenon, Terre des Hommes has gone one step further: Sweetie 2.0 is a program development by a team of experts from the universities of Tilburg and Leiden. This program, which detects, identifies and deters millions of potential predators around the world, will be harmonized with national and international systems of investigation and prosecution.

Unfortunately, there are legal issues about the use of fictitious children, as this particular study informs us:

Using artificial intelligence raises serious legal questions. Sweetie as an investigative tool is so innovative, that it is unclear whether its use is actually covered by existing rules of criminal procedure. However, the question of criminal procedural legality of Sweetie is preceded by a prior substantive criminal law question: is interacting with Sweetie in a sexually charged way a criminal offence in the first place, given that Sweetie is not a person, but a virtual avatar? An answer to this question is important, because if webcam sex tourism with a virtual avatar is not considered criminal, it will be much harder to make the case that Sweetie is an acceptable investigative method.

This particular program has already delivered some results in a related field, and I would like to inform the house of an article from the Courier Mail from October 2014, which is headlined '"Sweetie" sting nabs Brisbane sex offender Scott Robert Hansen'. The article goes on to say:

A registered sex offender and serial flasher from Brisbane is believed to be the first child sex predator caught by an undercover online sting targeting pedophiles with a virtual fake child nicknamed Sweetie.

The program sees charity workers pose as Sweetie—the computer-generated animation of a 10-year-old Filipina girl. They target pedophiles, who would ask Sweetie to perform sex acts in front of a webcam for cash.

Set up by Dutch Children's rights group Terre des Hommes Netherlands, Sweetie managed to lure more than 1000 adults around the world, including 46 Australians, providing their details to Interpol.

The first to have been convicted in the online sex tourism sting is a Brisbane man, registered sex offender Scott Robert Hansen.

Australian Federal Police officers executed a search of Hansen's home in February after he was referred to police by Terre des Hommes following a web chat with Sweetie.

The 37-year-old is a known serial-flasher who was first convicted for wilful exposure in 1995 for repeatedly flashing young girls on a school bus by standing naked in front windows outside.

In 1999 he was again convicted for repeatedly flashing girls aged 11 to 13, and in 2009 was given 18 months jail time for flashing and attempting to abduct an eight-year-old girl on her way home from school in his home suburb of Kallangur on Brisbane's northside.

The Brisbane District Court heard at the time that particular offence was committed while Hansen was on bail for child pornography offences after being found with more than 20,000 explicit images and films on his computer in 2008.

In 2011 while appearing on charges for approaching three young siblings while naked, and attempting to abduct an eight-year-old girl, grabbing her leg and cupping her mouth, a prosecutor told the Brisbane District Court Hansen's offending towards young children was 'escalating' and 'as time goes by is getting more serious'.

Hansen was last jailed in 2012 for nine months, after the 10th time he was found to have exposed himself to young girls.

During an earlier sentencing hearing, prosecutor Rob Glenday told Brisbane District Court Hansen's act of flashing were 'an impulse he couldn't control and when he did it he felt good for the rest of the day'.

Hansen has pleaded guilty to three child sex charges in the Brisbane District Court—admitting to sending obscene pictures of himself to Sweetie, having images of child sex abuse in his computer, and failing to comply with a sex offenders order.

I note that engaging with a child, because she was an virtual avatar, was not a specific offence in Queensland. The article goes on to say:

He is believed to have chatted with the girl, believing she was nine-years old, and performed a sex act in front of the webcam broadcasting it directly to the child, transcripts obtained by the BBC reveal.

They say the chat logs of Hansen's conversations show him to be directly targeting what he thought was a child.

The very first thing he typed in was:

'hi, u really 9yo'. The operator posing as Sweetie replied 'Yes'.

Hansen then wrote things along the lines—I will not get into too much detail—of 'wanna chat or cam with older man?' and, 'I like asian chicks.' Becoming more explicit, he then told Sweetie that he was naked and asked her to perform sex acts.

Hansen has been sentenced to two years in prison but is unlikely to serve the full term of his sentence as he has already served eight months in detention. He will have to serve an intensive correction order for 12 months.

Details of 1,000 men who contacted Sweetie and offered to pay for lewd services have been sent to police in 71 countries around the world, including 46 offenders from Australia, the operation revealed last year. An operator who posed as Sweetie and was incredibly disturbed said that the conversations had literally given her nightmares and told the ABC that Hansen was 'not even amongst the most serious people'. The quote about Hansen is:

He was very direct, at one point he asked us to get our fictional eight-year-old sister involved. It was very difficult to go to sleep at night after interacting with someone like Hansen—

the anonymous man said—

He was probably not the most serious, not even among the most serious.

Investigations into Sweetie's other predators continue but no other arrests are known.

I would just like to provide an update to the house from Terre des Hommes on how this particular operation is going in 2022:

For many years, cyber related and undercover research have been central to Terre des Hommes' Sweetie and Watch programmes. After thorough analysis, we have come to the conclusion that this type of activity does not align with [their] mission—

because of consideration of legal issues and others. They have decided to hand their research over to other organisations because of the legal issues in particular.

We are aware that such things are underway. There are such opportunities that exist for law enforcement, but unfortunately the laws of our land have not kept up and provided that assistance. The laws that we have either prevent these operations from taking place or prevent the proper prosecution of those people who seek to prey on our children.

These people are the most evil of the evil, and we need to do everything we can in this parliament to make sure that they are properly brought to justice, and so I absolutely commend the government for doing everything that it can to change the law to make sure that these tools are provided to law enforcement. I commend the bill to the house.

Ms CLANCY (Elder) (15:49): I rise today in support of this bill. One of the most crucial roles of government is to ensure the safety of its people, and special attention must be paid to the safety of the most vulnerable people in our community. We must care for and protect older people, we must care for and protect people living with disability, and we must care for and protect children.

This topic of child sex offences is difficult to even think about let alone speak about, but we must because we need to do everything we can to keep children safe and supported. During the election campaign Labor committed to taking the toughest action in the country against those who exploit children. We also committed to putting the victim at the centre of how we respond in this area, doing what we can to begin the process of repairing the damage that has been caused.

Central to this is an investment of an additional $2 million to help victims as they go through court processes, provide better education about their rights and support their recovery from trauma. Our government is also committed to passing laws for the indefinite detention for serious child sex offenders, who will need to convince the Supreme Court and two medical professionals, both appointed by the court, that they should be released. We will also require lifetime electronic monitoring when serious child sex offenders re-enter the community, and we will create our state's first child sex offender register.

Today's bill honours two important election commitments made by our government in this space. The bill will increase penalties on a range of child sex offences in the Criminal Law Consolidation Act 1935; in particular, it makes changes to the age distinction around penalties. For example, currently an image-based defence is considered aggravated only for children aged 14 and under. It is often difficult to prove the child in an image is 14 or under and involves police or others in the justice system at times having to extensively trawl through content to determine the exact age of a child.

I cannot begin to imagine how horrifying this work must be for those workers. This bill removes that age requirement for image-based offences, thereby removing that role from workers and also making it very clear that the sexual exploitation of children at any age is unacceptable. The bill before us also amends section 139A of Carly's Law to ensure that the offence can apply where the unlawful communication is made to a fictitious child. So, when an undercover police officer is posing as a child victim, offenders can still be charged with unlawful communications.

These amendments will see police have more charging options for unlawful communications with fictitious children, and sentencing courts will be able to consider the age the offender thought the child was when applying sentencing provisions.

I want to thank the Attorney-General, his staff and department for their work on this bill. I also want to take this opportunity to thank the people who work so hard in this area to keep children safe and supported: our police officers, detectives, victim support services, lawyers and anyone else working in this area. Thank you for working in an incredibly difficult field of work, because you choose to put children first.

I extend my support to victims of these heinous acts. I stand with you. This bill is the first of a couple we will be introducing on these matters and is step 1 in our tough on child sex offenders approach. I commend the bill to the house.

S.E. ANDREWS (Gibson) (15:53): I rise to speak on the Statutes Amendment (Child Sex Offences) Bill 2022. This bill progresses two important election policies made by this government to increase penalties on a range of child sex offences in the Criminal Law Consolidation Act 1935 and amends section 139A of the CLCA, Carly's Law, to ensure that the offence can apply where the unlawful communication is made to a fictitious child. It also updates the list of registrable offences in the Child Sex Offenders Registration Act 2006.

The bill is a combination of amendments that were put forward by the previous government that were unfortunately not progressed and aims to protect the community from sex offenders by increasing penalties. We are enacting our Labor policies and commitments, and these penalties are increased for consistency across the commonwealth and properly recognise the severity of the offences.

As well as raising the penalties on child exploitation material offences, the bill makes changes to age distinction penalties, removing them only in relation to image-based offences. As the proposed maximum penalty is higher than the current aggravated penalty, it will be capable of covering offences in a wide range of circumstances including different age children.

This distinction removal is largely to decrease the exposure of justice system staff to child exploitation material, as they will no longer need to determine the precise age of the child depicted in order to charge a basic or aggravated offence, and it sends a strong message that sexual exploitation of young people is unacceptable, regardless of age. Importantly, too, we are improving protections for our police officers and committing towards their work health and safety obligations to keep the workers as safe as possible.

This bill addresses gaps in the current legislation, and we are working hard to protect young children from harm. Whilst parents, carers, teachers and so many in our community do everything we can to protect our children and protect vulnerable people from harm, we cannot be everywhere at all times and observing everything our children do, so this piece of legislation is one that will help to keep our children safe. I am pleased that it will also enable police officers to have the support they need so that they can pursue these matters with confidence. I commend this bill to the house.

Mr ODENWALDER (Elizabeth) (15:56): I rise to make a very brief contribution to this very important bill, which reflects some very important election commitments made by the Malinauskas government whilst in opposition and which also, to be fair to the current opposition, builds on some work that was already underway during the previous term of government. We have taken that ball and run with it, and I extend my thanks and appreciation to the current Attorney-General, the Hon. Kyam Maher in the other place, and also to the Premier and the Deputy Premier for leading the policy process while we were in opposition, facilitating the development of these very important policies.

I want to touch only very briefly on three aspects of it; first of all, the increased penalties. It is very important that, from time to time, we review penalties for all offences, but it is most important that we review penalties for the most serious of those offences. We have heard from other contributors of the inadequacy often of some of our laws in relation to child exploitation offences. This has been recognised for some time, and it was certainly recognised by the government while in opposition, and this bill gives expression to those concerns.

It is not only bringing the laws into line with commonwealth laws, for the reasons already expressed by other speakers, but also bringing them in line with other comparable offences within the CLCA. To my mind, that is not just child exploitation offences. Newer members may not have noticed, but often we come into this place and we change laws in response to public demand and public expression of concern and often after a while, once we review the CLCA in totality, we come across anomalies where some offences are punished at a much higher level than other offences that should necessarily be punished at a very high level. It is very important that we review laws from time to time. We make sure that there are none of these anomalies and that the penalties for offences for the commission of offences adequately reflects the seriousness of those offences.

Other speakers have touched on the age distinction penalties in relation to the image-based offences. This is very important, in essence doing away with an aggravation of those offences, and making the penalty for a basic and/or aggravated offence the same and much more serious. As other speakers have reflected on, this lessens the burden on those workers, whether they are within the court system or indeed within the police, who have to view these images in order to mount a prosecution in order to conduct a prosecution.

I have had long conversations with police officers who have to do this awful work. It is fair to say that they suffer significant trauma, and it is heartbreaking for those people who have to do this work, but of course it is necessary work and it has to be done in order to combat these evil crimes. Anything we can do to lessen the burden on those workers is commendable, and I commend that part of the bill in particular.

Finally, I want to reflect on the amendments relating to fictitious children. It is hugely important that offenders are punished not simply for their actions but for their intended actions. There are offenders who conduct conversations or try to groom children online, and in their mind those children are children, whether or not they are police officers. At the moment, it is very difficult to mount a prosecution case. The amendments in this bill will give the police many more options in order to charge offenders who seek out material, seek out children to groom to ultimately abuse or exploit in whatever way, and I absolutely welcome those new provisions.

As previous speakers have said, we must do everything we can to protect our children. We also have in train another very important policy in terms of South Australia's first child sex offender register. I look forward to that legislation being brought into this place. I thoroughly commend this bill to the house.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:01): I will speak just a few words to thank the contributors, to thank the people from the other side, including the person leading for the opposition, the member for Heysen, and to also give acknowledgement and credit to the Hon. Kyam Maher for having taken this piece of legislation through the upper house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 9 passed.

Clause 10.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–1]—

Page 6, after line 33—Insert:

(a1) Section 56(1), penalty provision, (b)—after 'offence' insert:

(other than an offence of a kind described in paragraph (c) or (d))

The government has filed this amendment to clarify the operation of the amended indecent assault penalties. The bill adds new penalty levels for indecent assault that apply when the victim is a child. This is in addition to the existing penalties for basic and aggravated offences. The effect of the amendment is to make it clear that when the victim is a child the higher child-specific penalties will apply, even if the circumstances mean it could also be charged as an aggravated offence. This was always the intended operation of the new penalties; however, the clarifying words are inserted to avoid doubt in response to concerns raised by the Director of Public Prosecutions.

Amendment carried; clause as amended passed.

Remaining clauses (11 to 21) and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (16:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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