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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-07-07 Daily Xml
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Statutes Amendment (Child Sex Offences) Bill

Second 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) (12:31): I move:

That this bill be now read a second time.

The Hon. S.E. CLOSE: I am pleased to introduce the Statutes Amendment (Child Sex Offences) Bill 2022. This significant and much-needed reform aims to protect the community from child sex offenders by increasing penalties on a range of child sex offences and ensuring that predators are not entitled to leniency because they were mistaken in their belief that their victim was a child. In so doing, this bill progresses two important election commitments made by the government to, first, increase penalties on a range of child sex offences and, second, strengthen Carly's Law so that police can hunt online predators with confidence.

This bill enacts these crucial Labor policies and goes even further to protect the children of South Australia with the inclusion of additional complementary reforms. The bill will substantially increase the maximum penalties for many child sex offences in the Criminal Consolidation Act 1935, including offences involving direct sexual contact, as well as child exploitation material offences, child grooming offences and offences of using children in commercial sexual services.

For example, the maximum penalty for having sexual intercourse with a child aged under 17 is currently only 10 years. This is low compared with equivalent penalties in other Australian jurisdictions and is also low compared with the maximum life imprisonment imposed for sexual intercourse with a child under 14. Overall, the 10-year maximum does not reflect the seriousness of the conduct. The bill lifts this penalty to 15 years.

Similarly, indecent assault currently has an eight-year maximum penalty or 10 years for any aggravated indecent assault, which includes indecent assault on persons under 14. The bill creates specific higher penalties for indecent assaults against children: 10 years for children under 17 and 15 years for children under 14.

As well as raising the penalties on child exploitation material offences, the bill also removes the practice of classifying them into basic and aggravated classes. Typically, child exploitation material offences will be aggravated and have higher penalties if the defendant knew the child depicted in the material was under 14 years of age. The bill removes this distinction. Instead, these offences will have one significant maximum penalty that applies regardless of the age of the child. The new maximum penalties are set at a higher level than the existing aggravated penalties.

Removing age-based offence distinctions for this type of offending allows for more consistent and proportionate sentencing practices. Often authorities do not know the identity of the child victim depicted in the material and therefore cannot prove their exact age. They can gain a conviction but cannot attract the aggravated penalty, even if it is highly likely that the child is under 14. By applying a single penalty, regardless of the age of the child, this issue is removed. The age or apparent age of the child and the defendant's belief or knowledge of their age will of course still be relevant, as courts will be able to take it into account when selecting an appropriate penalty from within the range allowed.

This will also benefit law enforcement and prosecuting authorities. Due to the difficulties in determining the ages of children depicted in child exploitation material, authorities must spend more time looking at the material to classify charges, which has negative effects on their mental wellbeing. The bill also contains an important set of amendments in relation to policing using 'fictitious children'. These amendments have been included to strengthen existing law around charging online child predators where barriers have been experienced by police.

In a fictitious child scenario, an offender believes they are speaking to a real child, but in fact they are speaking to an undercover police officer or an artificial intelligence program. In many cases, a person can already be liable for criminal communications with a fictitious child. However, there are various gaps in current legislation that create the potential for leniency in this scenario, and the bill will address this. The bill applies the principle that these offenders should not be entitled to any leniency. They believed they were speaking to a real child and so should be treated as if they had been. They are still a danger to the community.

In particular, the bill will make it clear that the following offences can include communications with fictitious children:

1. Grooming offences under section 63B(3) of the Criminal Law Consolidation Act 1935 that are aggravated based on the knowledge that the victim was under 14 years old;

2. A registrable child sex offender failing to inform police of reportable contact with a child; and

3. Dishonest communication with children, better known as Carly's Law, which is pursuant to this Labor government's election commitment to strengthen Carly's Law so that police can hunt online predators with confidence.

The bill will also amend various sentencing provisions that reference the age of the victim to make it clear that, if the victim was fictitious, their age for the purposes of sentencing can be considered as the age the defendant believed them to be at the time of the offence.

Finally, the bill updates the list of registrable offences in the Child Sex Offenders Registration Act 2006. A registrable offence is one that will result in automatic mandatory registration as a child sex offender, except if one of the narrow exemptions apply. Keeping this list up to date ensures that the right people are captured on the register. A number of offences are added as registrable offences. The additional offences are mainly from the Commonwealth Criminal Code.

The act already includes some commonwealth child sex offences as registrable, but some were passed more recently by the commonwealth parliament. Some additional state child sex offences are also added as registrable offences, such as offences involving childlike sex dolls, Carly's Law and causing serious harm to a child if it arises from the same incident as a sexual offence. The bill also removes or narrows some registrable offences to ensure that the list focuses only on child sex offending.

A version of this bill passed the Legislative Council with unanimous support last year. It contained similar updates to the list of registrable offences, fictitious child amendments and some of the raised penalties included in this bill. However, just like many other crucial bills that went cold under the hand of the former government, this one did not pass the House of Assembly before sittings ended prior to the 2022 election.

What a shame that these absolutely necessary legislative reforms to protect South Australia's young people against some of society's most dangerous could not have been enacted sooner, so we are getting the job done as a priority. I look forward to seeing this bill progressing through the chamber and being enacted as soon as possible to ensure the children of our state are adequately protected from harm. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Child Sex Offenders Registration Act 2006

3—Amendment of section 4—Interpretation

This amendment is consequential.

4—Insertion of section 4A

This clause inserts a proposed section as follows:

4A—Meaning of reportable contact

Section 13(4), (5) and (6) of the Act currently define what reportable contact with a child constitutes for the purposes of the Act. This section proposes that the definition be enacted in amended form in this new section as it applies in several key sections throughout the Act. The definition is amended to provide that a reference to a child is to include—

a person who the registrable offender believes, at the time the contact occurs, is under the age of 18 years; and

a fictitious person represented to the registrable offender at the time the contact occurs as being a real person under the age of 18 years.

5—Amendment of section 13—Initial report by registrable offender of personal details

This clause deletes subsections (4),(5) and (6), the contents of which are proposed to be included in proposed section 4A as enacted by clause 4.

6—Amendment of Schedule 1—Class 1 and 2 offences

This clause updates several references to State and Commonwealth offences in the Schedule.

7—Transitional provisions

This clause contains transitional provisions consequent on the removal of certain offences by amendments in clause 6.

Part 3—Amendment of Criminal Law Consolidation Act 1935

8—Amendment of section 5AA—Aggravated offences

This amendment substitutes subsection (1)(e) to—

delete a reference to offences in Part 3 Division 11A consequential on the substitution of several existing penalties for aggravated child sex offences in that Division with a single higher penalty; and

insert, in addition to the existing provisions in subsection (1)(e) regarding aggravated offences in respect of child sex offences where the victim is under the age of 12 years, a reference to an aggravated offence against section 63B(3) where the child is under the age of 14 years.

9—Amendment of section 49—Unlawful sexual intercourse

This amendment increases the maximum penalty of imprisonment applying for an offence against this section from 10 to 15 years.

10—Amendment of section 56—Indecent assault

Subclause (1) amends the penalty provision for the offence of indecent assault to provide for a penalty of imprisonment for 10 years if the victim of the offence was at the time of the offence under the age of 17 years and if the victim of the offence was at the time of the offence under the age of 14 years, 15 years. Subclause (2) deletes subsection 56(2) which is consequential on the amendment in subsection (1) to increase the penalty from that which would apply for an aggravated offence in accordance with section 5AA (which could still be charged under that section, see section 176 of the Criminal Procedure Act 1921).

11—Amendment of section 58—Acts of gross indecency

This clause increases the current penalty provision for the offence of gross indecency in subsection (1) (being imprisonment for a maximum of 3 years for a first offence and a maximum of 5 years for a subsequent offence) to a single maximum penalty of imprisonment for 15 years.

12—Amendment of section 63—Production or dissemination of child exploitation material

This amendment deletes the current maximum penalty (imprisonment for 10 years) and the aggravated penalty provision (imprisonment for 12 years) for an offence against the section and substitutes 1 higher maximum penalty for the offence (imprisonment for 15 years).

13—Amendment of section 63AA—Production or dissemination of child-like sex dolls

This amendment increases the maximum penalty of imprisonment applying for an offence against this section from 10 to 15 years.

14—Amendment of section 63A—Possession of child exploitation material

This clause deletes the current penalty provisions which vary according to whether an offence is a first or subsequent offence, or a basic or an aggravated offence, with the maximum possible term of imprisonment being 10 years for each offence. The proposed penalty provision provides for a maximum penalty of imprisonment for a first offence of 10 years and for a subsequent offence, 12 years.

15—Amendment of section 63AAB—Possession of child-like sex dolls

This amendment increases the maximum penalty of imprisonment applying for an offence against this section from 10 to 15 years.

16—Amendment of section 63B—Procuring child to commit indecent act etc

The amendments in subclauses (1) to (4) delete the current maximum penalties applying for a basic offence against subsections (1) and (3) (imprisonment for 10 years) and the current maximum penalties for an aggravated offence against those provisions(imprisonment for 12 years) with a higher maximum penalty of imprisonment for 12 years for a basic offence and imprisonment for 15 years for an aggravated offence.

The amendment in subclause (5) provides that for the purposes of the offence in subsection (3), it does not matter if the victim is a fictitious person represented to the defendant as a real person.

17—Amendment of section 68—Use of children in commercial sexual services

Subclause (1) increases the penalty for employing, engaging, causing or permitting a child to provide, or to continue to provide, commercial sexual services for a child over the age of 14 years from a maximum term of imprisonment of 9 years to 15 years.

Subclause (2) substitutes the existing lower penalties that apply in subsection (2) for the offence of asking a child to provide commercial sexual services with a single maximum penalty of imprisonment for 15 years.

Subclause (3) substitutes the existing lower penalties that apply in subsection (3) for the offences relating to receiving money or proceeds from children who provide commercial sexual services with a maximum penalty of imprisonment for 10 years if the child is under the age of 14 years and a maximum penalty of 4 years in any other case.

18—Amendment of section 139A—Dishonest communications with children

The offences in this section currently cover communications between a person of or over the age of 18 years and a child (defined as a person under the age of 17 years). The amendments proposed to the section substitutes the term child with the term victim, which is defined as—

a person under the age of 17 years; or

a person the offender believes is under the age of 17 years.

Part 4—Amendment of Sentencing Act 2017

19—Amendment of section 52—Interpretation

A serious sexual offence, for the purposes of Part 3 Division 4 of the Act (which deals with custodial sentences for serious repeat adult offenders and recidivist young offenders) is defined to include (among other offences) an offence under section 63B of the Criminal Law Consolidation Act 1935 where the victim was under the age of 14 years at the time of the offence. This clause makes an amendment to add to the definition in respect of an offence under section 63B(3) of that Act circumstances where the victim was a fictitious person represented to the defendant as a real person whom the defendant believed to be under the age of 14 years at the time of the offence.

20—Amendment of section 71—Home detention orders

This amendment provides for 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 in circumstances where the victim of an offence committed under section 63B(3) of the Criminal Law Consolidation Act 1935 is a fictitious person represented to the defendant as a real person.

21—Amendment of section 96—Suspension of imprisonment on defendant entering into bond

This amendment provides for 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 in circumstances where the victim of an offence committed under section 63B(3) of the Criminal Law Consolidation Act 1935 is a fictitious person represented to the defendant as a real person.

Mr TEAGUE (Heysen) (12:39): I rise to support the passage of the bill, and I was about to say that I wholeheartedly endorse the contribution of the Deputy Premier in full—

The DEPUTY SPEAKER: Member for Heysen, you are the lead speaker as well?

Mr TEAGUE: Yes.

The DEPUTY SPEAKER: I just wanted to clarify that.

Mr TEAGUE: Yes, I am the lead speaker, and I was responsible for the bill in the period of the former government. It is regrettable that at the conclusion of those remarks—which rightly highlight the bipartisan, multipartisan, unanimous support of the progress of this legislation—we have remarks of that kind, particularly in circumstances where we saw the last bill jammed in ahead of this one on this very day. I will not dwell on such sentiments.

Indeed, this bill is important reform in this area. It reflects in substance the work that was done by the previous government, and it did enjoy support across the parliament in the last parliament. So much does it replicate the work undertaken by the previous government that I was able to follow along more or less word for word with the Deputy Premier's contribution just now. Again, I accord with those remarks.

The element that I will highlight, just for the benefit of those following the debate, is that the bill indeed specifically creates a remedy for those circumstances in which an offender finds themselves perceiving that they are communicating with a child, whereas in fact they are being monitored by the expert work of those undercover officers deploying methods with which to detect and discover this heinous behaviour. Those will be subject to the same liability for penalty, and I draw attention in particular to those amendments.

The offence provisions now in many respects consolidate what was previously a basic and an aggravated offence and in all respects increase maximum penalties associated with the relevant conduct. I have indicated that the contribution of the Deputy Premier draws in all respects from the substance of that contribution presented to the parliament at the end of the Fifty-Fourth Parliament, and I advert also to the debate that took place in another place in May.

Finally, I want to take the chance to recognise and pay tribute in particular in this area to Sonya Ryan. Sonya is a constituent of mine, and I have happily had extensive engagement with Sonya Ryan over the years. She has achieved such an enormous amount in this most difficult area, bringing a positive and confident capacity for engagement online for children, recognising the sorts of terrible risks and terrible things that can happen when things go wrong online.

It happened so tragically to Sonya's daughter, Carly, when as a 15-year-old girl she was lured under false pretences to her death. In many cases, that sort of suffering I am sure would lead a mother to live a life of inconsolable grief. Sonya Ryan courageously and now consistently over the course of 15 or more years has dedicated herself to making sure that children and young people growing up in an online world are more confident, more able and more resilient to avoid what so tragically befell her dear daughter, Carly.

If this in another way is able by legislation to assist the work that Sonya does, then I thank Sonya in the same breath for the day-to-day practical work she does in the community. Long may legislation actively and practically assist work that is done by those involved in law enforcement and those involved in community work, including, in her leading way, Sonya Ryan. I commend the bill to the house.

Mrs PEARCE (King) (12:45): I rise to speak on the Statutes Amendment (Child Sex Offences) Bill. This is an important bill that follows through on the commitments we took to the last election. Simply, this bill will better protect children and empower the authorities to crack down on this abhorrent abuse. It seeks to increase the penalties for a range of child sex offences, amends section 139A of Carly's Law to ensure an offence to applies where there is unlawful communication with a fictitious child and it updates the list of registrable offences in the Child Sex Offender Registration Act.

This bill will mean tougher sentences for child sex offenders, and it will reduce the amount of leniency that can be provided to them, to keep our community safe. This bill is an amalgamation of many amendments that were put forward during the previous term of government but, unfortunately, did not pass. It also involves many new amendments to better protect our children.

We are serious about ensuring that there is justice for victims and survivors. We are serious about keeping our laws strong to ensure that people who exploit children are locked up so they cannot pose a threat to the community. We are sending a clear message to anyone even thinking about it that sexual exploitation of young people is unacceptable regardless of age. Our amendments to Carly's Law, a law that cracks down on offenders lying about their age to meet children, formed part of our commitment at the last election to strengthen it to further protect our community.

It will mean that charges can be laid against offenders when undercover police officers are posing as child victims, giving them greater confidence that they can intercept predators before they can harm vulnerable young people. For police, this will mean more options for charging unlawful communication with fictitious children, and the courts can then decide what age the offender believed the child to be, which will form sentencing provisions.

We are increasing the maximum penalty for gross indecency with or in the presence of a child, from five to 15 years; punishing those who seek to download, share or child abuse material; and removing age categories for image-based offending so that offenders can no longer get away with leniency when the age of the victim is unknown. Removing the age-based categories will also mean that we can decrease the amount of child exploitation material that justice system staff are exposed to, as the age of the child need not be determined to charge the basic or aggravated offence.

The bill also seeks to increase a list of registrable offences, incorporating recently passed offences by the commonwealth parliament as well as adding state child sex offences as registrable offences, such as offences involving childlike sex dolls, Carly's Law and causing serious harm to a child if it arises from the same incident as the sexual offence. While we are serious about ensuring that people who commit these abhorrent acts are punished for their actions, we also know that justice is about more than that.

Justice is also about ensuring that victims and survivors are at the centre of our response and provided the support they need. Whether that be when they are going through the courts to seek justice, we will provide them with information about their rights throughout that process. As well as providing support in their recovery as they process and recover from trauma, we want to help victims and survivors to ensure they are given true justice. That is why we have also committed $2 million over four years to support services for victims.

These heinous acts have caused irreparable damage to victims and survivors in our community. I am proud to be standing alongside a government that is standing up to the challenge of taking it seriously and making sure that people who commit these abhorrent acts are put where they belong—away from the community.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic and Family Violence, Minister for Recreation, Sport and Racing) (12:49): I also rise to speak in support of this really important bill and thank, firstly, the Attorney-General for his work to progress the bill in the other place and also the Deputy Premier for her work on this matter here. I particularly thank both of them for the sound amendments they have made to further strengthen this very important piece of legislation.

As has been said, this bill progresses two crucial commitments made by the government through our justice for victims policy. This policy made abundantly clear our commitment to tackle some of the most difficult issues our community confronts and, as part of that effort, to increase penalties on a range of child sex offences and to strengthen Carly's Law so that police can effectively pursue online predators with confidence.

Specifically in this bill, we are proposing to increase penalties on a number of child sex offences set out in the Criminal Law Consolidation Act 1935 and to amend section 139A of the Criminal Law Consolidation Act, also known as Carly's Law, to ensure that the offence can apply where unlawful communication is made to a fictitious child. This bill is a combination of amendments that were put forward by the previous government but which did not pass—largely, it seems, due to a lack of urgency at that time in relation to them—and many additional amendments that are either new or make changes to the previous government's amendments.

The commitment we have to this law is situated amongst a suite of commitments to improve the safety of children and young people, to protect them from harm, including that caused by vile online predators, and to hold those perpetrators rightly to account. As I have said a number of times in this place now, our government intends to ensure that the most vulnerable children are at the centre of our decision-making and at the centre of our actions.

As minister, I am viscerally committed to keeping children in care, and indeed all children at risk, in my heart and in my mind as I undertake my responsibilities, responsibilities I am absolutely honoured to have. Every South Australian child should be safe, cared for, loved and nurtured, and it is everyone's responsibility to ensure that they are. As parliamentarians, we must do all that is within our power to progress this fundamental aim and to strengthen vulnerable families so that they have the best chance of succeeding safely together.

Outcomes for children in care and any child at risk must be improved. No matter their starting point, we want children to physically, mentally and emotionally thrive and, again, we want to align every effort to ensure that families have the support they need to safely stay together. We know that parental, other carer and general community concerns are rightly high regarding the vulnerability of all children and young people in an ever more complex and technology-driven world. As a parent, and as the Minister for Child Protection, I absolutely share these concerns and utterly condemn those who take advantage of children and young people.

We must continue to take whatever steps are necessary to keep children safe, including online. For children and young people in care, many of whom have already experienced significant trauma, we know this means regularly reviewing safety measures to provide protection from online predators. This is something I have had many conversations about with various department leaders and with the service providers that support children and young people in care.

I have also recently met with the national eSafety Commissioner and received a briefing, along with the Minister for Police, from SAPOL's Joint Anti Child Exploitation Task Force (JACET). Can I take a moment to say that that group of police officers are extraordinary—absolutely extraordinary. Their utter commitment to holding perpetrators to account is extraordinary, and I thank them for their remarkable work.

We must deal strongly with perpetrators, as this bill does, and we must do all that we can to ensure the online environment is safe. This is complex work, but it is crucial work that must be undertaken. As all parents, caregivers and indeed most community members will attest, being online is now undeniably a central part of children's lives. It keeps kids connected, provides access to education and entertainment, and technology is increasingly integral to our children and young people's way of navigating their world.

Anybody who is a parent, a caregiver or an educator would have had multiple conversations with the children and young people in their lives about screen time, online safety, the need to get off of screens a bit more often, and more. Finding solutions and the right balance is a focus that many have. Recognising that no single strategy is 100 per cent effective at keeping young people safe online, we are working across a range of measures to protect those in care and to provide them with the skills to stay safe.

The tragic case of Carly Ryan, who was killed after being lured to a meeting by an adult who was posing as a young person, gives us no doubt in our minds that police should be able to proactively patrol the web to find these predators and stop them. There should never be any loophole for a person to claim they were just pretending. If people want to pretend, there are a million other ways to do it. You cannot ever stalk children online or lie about who you are, and that is why section 139A of the Criminal Law Consolidation Act amendments relating to fictitious children ensure that offenders can be charged with unlawful communications when an undercover SAPOL officer is posing as the child victim.

These amendments will see police have more charging options for unlawful communications with fictitious children, and sentencing courts can consider the age the offender believed the child to be when applying sentencing provisions. This legislation is further strengthened by amendments to home detention orders and suspension of imprisonment on a defendant entering into a bond respectively, which 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 63B of the Criminal Law Consolidation Act.

I also note that the increased penalties set out in the bill were informed by equivalent commonwealth and interstate offences and relevant to other offences within the act. 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.

This distinction removal is largely to decrease the exposure of justice system staff to child exploitation material as they will not need to determine the precise age of the child depicted in order to charge a basic or aggravated offence. It also sends a very strong message that any sexual exploitation of young people is utterly unacceptable regardless of age.

I also note that the added offences in this bill are mainly taken from the Commonwealth Criminal Code that were recently passed by the commonwealth parliament. Some additional state child sex offences are also added as registrable offences, as the member for King said, such as offences involving childlike sex dolls.

Our entire government and I are committed to working together and collaborating with all the stakeholders who have a role to play and to critically developing the solutions with the direct input of children and young people affected by them. Of course, these strategies must also be complemented by a legal framework that serves both to deter and to appropriately punish those who wish to harm children and young people.

Again, I commend the Attorney-General for these amendments, for adding another plank to our legislative approach and for his enduring commitment to keeping South Australian children and young people safe.

Debate adjourned on motion of Mr Odenwalder.

Sitting suspended from 13:00 to 14:00.

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