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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-05-05 Daily Xml
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Statutes Amendment (Child Sex Offences) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (15:36): 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. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (15:37): I move:

That this bill be now read a second time.

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 doing so, this bill progresses two important election commitments made by the government to:

increase penalties on a range of child sex offences; and

strengthen Carly's Law so police can hunt online predators with confidence.

This bill enacts crucial Labor policies and goes even further to protect the children of South Australia with the inclusion of additional complementary reforms. This 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 to equivalent penalties in other Australian jurisdictions and is also low compared to the maximum 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 the penalty to 15 years.

Similarly, indecent assault currently has a maximum eight-year penalty, or 10 years for an aggravated indecent assault, which includes indecent assaults on persons under 14. This bill creates a specific high penalty 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 offences, the bill also removes the practice of classifying them into basic and aggravated classes.

Typically, the child exploitation material offences will be aggravated and have higher offences if the defendant knew the child depicted in the material was under the age of 14 years. This bill removes the 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 aged-based offence distinctions for this type of offending has benefits for law enforcement and prosecuting authorities.

Often it can be difficult to prove the age of the children depicted in child exploitation material, which can make classifying the charges complex and require authorities to spend more time looking at the material, which has a negative impact on their mental wellbeing. The age or apparent age of the child and the defendant's belief and knowledge of their age will of course still be relevant and of course will be able to be taken into account when selecting the appropriate penalty within the range allowed.

The bill also contains an important set of amendments in relation to policing using fictitious children. These amendments have been included to strengthen existing laws around charging online predators where barriers have been experienced by police investigators. 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 the 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. If they believe they were speaking to a real child, they 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:

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

a registerable child sex offender failing to inform police of reportable contact with a child; and

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 predators online with confidence.

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 considered as the age that the defendant believed them to be at the time of the offence. The fictitious child amendments, and some of the raised penalties, were contained in a previous bill, the Statutes Amendment (Child Sex Offenders) Bill 2021, which passed the Legislative Council with unanimous support. However, like many other bills that passed the Legislative Council, this one did not pass the House of Assembly before sitting ended prior to the 2022 election.

It is 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. We are getting on with the job as a priority in our first week of sitting as a government. I look forward to this bill progressing through this 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.

Part 3—Amendment of Criminal Law Consolidation Act 1935

6—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.

7—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.

8—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).

9—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.

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

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.

15—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.

16—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

17—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.

18—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.

19—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. J.S. Lee.

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