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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-23 Daily Xml
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Bills

Statutes Amendment (Child Sex Offences) Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (15:25): Obtained leave and introduced a bill for an act to amend the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:26): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Child Sex Offences) Bill 2021. This bill strengthens child sex offence provisions and updates our child sex offender registration laws. The bill will substantially increase the maximum penalties for child exploitation material offences and child grooming offences. The penalties for this type of offending under the Commonwealth Criminal Code are currently higher than the South Australian equivalents in the Criminal Law Consolidation Act. In the interests of parity and to reflect the seriousness of the conduct, these penalties will be raised to match those of the commonwealth.

The bill also removes the practice of separating these offences into basic and aggravated classes. Whilst many factors can make an offence aggravated, the most common aggravating feature of a child exploitation offence is the age of the victim. Under section 5AA(1)(e)(i) of the Criminal Law Consolidation Act, child exploitation offences will be aggravated if the defendant knew the child groomed or depicted in the material was under 14 years of age.

Under the bill, all aggravated forms of child exploitation material and grooming offences are removed. In their place, these offences will have one significant maximum penalty that applies regardless of the age of the child. This will not soften sanctions for people viewing exploitation material depicting very young children—the new general maximum penalties are higher than the existing aggravated penalties. The bill makes it clear that exploitation of a child of any age is totally unacceptable.

Removing aggravated status for offences against very young victims also assists the mental health of law enforcement personnel, who will not need to spend as long looking at this heinous material in order to classify the charges. It also simplifies the charging process when the exact age of the child depicted in the material is not readily apparent or cannot be approved. The age or apparent age of the child will of course still be relevant, and courts will be able to take it into account when selecting an appropriate penalty.

The bill also ensures that child groomers are not given leniency because they were not really speaking to a child. In many instances, undercover police officers pose online as children and predators attempt to inappropriately and criminally communicate with these fictitious children. Additionally, automated chatbots may be used in the same way. This bill enacts a strict policy that offenders should not be given leniency simply because their belief that they were speaking to a real child turned out to be wrong. Their intention and belief at the time of the offending still makes them a danger to real children in the community.

In particular, the bill will provide clarity in relation to the offences of dishonest communication with children, better known as Carly's Law, and a registerable sex offender failing to inform police of reportable contact of a child. A child for the purposes of these offences will include a person the offender believed was a child or a fictitious person represented to the offender as a child. Whilst the offences are currently open to interpretation, this will put the matter beyond doubt.

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

Finally, this bill will update the list of offences in the Child Sex Offenders Registration Act 2006 that automatically result in registerable status. The changes add or remove offences to ensure that the list remains current and meets the aims of the act. In particular, various new offences passed at the commonwealth level are added. I commend the bill to members and I seek leave to have the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Child Sex Offenders Registration Act 2006

4—Amendment of section 4—Interpretation

This amendment is consequential.

5—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.

6—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 5.

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

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

8—Transitional provisions

This clause contains transitional provisions consequent on the removal of certain offences by amendments in clause 7.

Part 3—Amendment of Criminal Law Consolidation Act 1935

9—Amendment of section 5AA—Aggravated offences

This clause amends section 5AA so that an aggravated offence may not be committed in respect of an offence against Part 3 Division 11A in circumstances where the person who committed the offence knew that the victim was under the age of 14 years.

10—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).

11—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.

12—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.

13—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

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

This clause deletes the current penalty provisions and provides that the maximum penalty for an offence against section 63B(1) or (3) is imprisonment for 15 years.

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

The offences in this section currently cover communications between a person of or over the ages 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.

Proposed subsection (3) further provides that for the purposes of the section, it does not matter that the victim is a fictitious person represented to the defendant as a real person.

Part 4—Amendment of Sentencing Act 2017

16—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.

17—Amendment of section 71—Home detention

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.

18—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.

Debate adjourned on motion of Hon. I.K. Hunter.

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