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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-04 Daily Xml
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Statutes Amendment (Sexual Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2023.)

The Hon. T.T. NGO (15:49): I rise in support of the South Australian Statutes Amendment (Sexual Offences) Bill 2023. Firstly, I would like to commend the Malinauskas government for taking action to close the loopholes outlined in this bill. We must be absolutely relentless in using the law and its powers to remove all forms of child sexual offences from society. They are grave and serious crimes and our laws must treat them as such.

The provisions we make to improve law enforcement to protect our children will help to create a society in which they can grow up free from fear and violence. We must ensure that offenders are held accountable for their actions. This bill ensures that the legislation accurately reflects the gravity of sexual offences by eliminating loopholes that make it easier for people who possess child exploitation material or childlike sex dolls to get bigger sentence discounts or bail.

In line with Labor's election commitments, this bill recognises that such offences should be considered a serious criminal offence rather than a criminal offence under the Sentencing Act. The fact is that other child sex offences such as producing child exploitation material and grooming children online are categorised as serious indictable offences. Under the current act, individuals charged with possession of child exploitation material or childlike sex dolls can receive greater sentence discounts for guilty pleas. This occurs due to a loophole enabling offenders to receive bigger sentence discounts than those available to people charged with other types of child sex offences.

In the context of possession only, offences for exploitation material and childlike sex dolls can be considered victimless crimes. By legislating a special principle that must be taken into account when considering bail for persons charged with these offences, it will ensure that bail authorities do not consider these as victimless crimes. This legislated principle states that when considering the gravity of the alleged offence, the bail authority must take into account the harm that people who deal with child sex material cause to children by contributing to demand for the abuse of children.

Lastly, this bill modifies the language used in part 3, division 12 of the Criminal Law Consolidation Act, which contains offences in relation to commercial sexual services. These include forcing a person to provide commercial sexual services or knowingly using a child in commercial sexual services. The phrasing of 'provide commercial sexual services' will be amended to 'perform commercial sexual acts'. This language better reflects the exploitative nature of the offending and is in response to comments made by the Hon. Connie Bonaros MLC during the debate on the Statute Amendments (Child Sex Offences) Act 2022, which raised penalties for some of these offences.

The amendments to this bill address the gravity of any offence directed at exploiting or harming children. The impact of these heinous offences can be catastrophic for the child because the impacts can last a lifetime. These important amendments will improve our legal system's handling of child sexual offences. Eliminating this loophole from our existing law will make it more stringent and enable us to better maintain a caring and civilised society that protects our children. I commend this bill to the house.

The Hon. J.M.A. LENSINK (15:54): I rise to indicate support for this bill. This bill amends the Bail Act, the Child Sex Offenders Registration Act, the Criminal Law Consolidation Act and the Sentencing Act. The law currently classifies the possession of child pornography or childlike sex dolls as indictable offences. This bill will raise these offences to the level of serious indictable offences as well as reducing the possible sentencing discount available to an offender who pleads guilty to such an offence.

In commenting on this piece of legislation, I would like to commend the Hon. Connie Bonaros, who first raised the issue of childlike sex dolls as something that needs to become part of our criminal law. Child pornography is something that unfortunately has been around for quite some time and therefore laws have been in place for much longer. Clause 3 of the bill inserts a section which would require a bail authority to:

…take into account the harm that people who deal with child sexual material cause to children by contributing to demand for the abuse of children.

I think we all recognise that. All parties, I think everyone in our community, are horrified by any of this activity, and the protection of children is our utmost concern in our community.

There are transitional provisions in the legislation and some changes to definitions in the Child Sex Offenders Registration Act. In relation to the Criminal Law Consolidation Act, there are changes to the definition of commercial sexual services to include payments to any person, not just the person who performed the act. The balance of the amendments makes changes to wording within sections relating to sexual offences involving children.

In relation to the Sentencing Act, it makes the child sex offences of possessing child pornography or childlike sex dolls serious indictable offences. For the purposes of sentence discount provisions, currently the maximum sentence discount that can be awarded for a guilty plea is based on when the plea is entered and the classification or seriousness of the offence. With those remarks, I indicate support for the bill.

The Hon. C. BONAROS (15:56): I rise on behalf of SA-Best to speak to the Statutes Amendment (Sexual Offences) Bill, which we know seeks to better reflect the expectations of the community when it comes to sex offences, something you will not hear any complaints about from anyone in this chamber.

It does so by seeking to amend section 40 of the Sentencing Act to expand the definition of serious sexual offences to include possession of child exploitation material and possession of childlike sex dolls, their production and dissemination, the existence of which we have been fighting against since coming to this place. The multipartisan approach with which we have addressed that issue is certainly not lost on me. In practical terms, it will reduce the maximum discount available for an early guilty plea for those offences from 35 per cent to 25 per cent. That is very welcome.

The bill also, as we know, seeks to insert a new provision in the Bail Act to explicitly require a bail authority to consider the harm possession of child sexual material causes when having regard to the gravity of an offence. As we know, a person does not have to touch a child or even live in the same country as that child to contribute to the abuse of that child, and that is not only abhorrent, it is completely and utterly unacceptable.

The link between child exploitation material and childlike sex dolls is also very clear. You only need to look at the continuous flow of offenders being found in possession of both—indeed in this jurisdiction as well—since those laws came in. They are issues that we have canvassed previously in this place very extensively.

Unfortunately, though, child sex offence charges feature daily in our court lists. On Tuesday, three District Court judges dealt with possession of child exploitation material matters. Today, there are four individuals facing the District Court on charges of maintaining an unlawful sexual relationship with a child. We heard the outcome of one of those trials yesterday.

The Attorney has introduced a bill to address the issue with language around that particular offending, which I and others, including the Hon. Tammy Franks, are very pleased to see introduced in this place today, to ensure that the nature of the offending and the language that we use to describe those offences is consistent with the actual nature of that very heinous offending.

It is quite difficult to fathom just how prevalent child sex offending is across the state, across the country and throughout the world. In the 2021-22 financial year alone, the Australian Centre to Counter Child Exploitation's Child Protection Triage Unit received in excess of 36,000 reports of images and videos of innocent children being sexually abused for the gratification of child sex offenders. The sad reality is that behind every image or video is a real child who is being or has been subjected to deplorable and despicable acts of depravity.

As to the remainder of the bill, we are particularly pleased that the Attorney has delivered on his undertaking to challenge some more uncomfortable and inappropriate, I would say, language in our statute books, such as the existing references to a child 'providing' commercial sexual services. It implies not just the warped but the really unacceptable and inappropriate message of consent, which is totally and utterly unacceptable.

As we have all acknowledged, and as indeed the Attorney raised earlier today, words and the messages they convey, the way that we report on these issues publicly and, of course, the impacts they have on their victims do matter and those victims should be front and centre in terms of our use of those words. It is not just on the statute books because when they are reported publicly, when they are reported in the media, that serves in some cases to minimise and undermine the actual offending that has occurred to what is an innocent child victim.

Substituting the terminology with 'performing' commercial sexual acts is, while still heinous in this context, certainly more appropriate wording, we would say. Amending 'services' to 'acts', 'perform' to 'provide' and 'commercial sexual services' to 'sexual servitude' are all steps in the right direction. Once again, I am grateful to the Attorney for taking these concerns on board and committing to address them in this context and also more broadly in terms of other areas of the law.

Grace Tame, who we had the pleasure of being with earlier today to announce the bill with the government, is a fiercely determined and powerful advocate in this space. She continues to strive for a re-think of language on the national stage for very good reason and I am glad that this place is listening. The 2021 Australian of the Year told the National Press Club in March of that year:

…we need structural change… Let's start by considering the implications of linguistics related to offences. Through Let Her Speak campaign efforts, we saw the wording of my abuser's charge officially changed from maintaining a sexual relationship to a person under 17, to the persistent sexual abuse of a child. Think about the difference in the crime according to the language of both of these. Think about the message it sends to the community. Think about the message it sends survivors. Where empathy is placed, where blame is placed, and how punishment is then given.

It is for those reasons that we are pleased with the changes in this bill and also the bill that the Attorney referred to today and, of course, Grace's tireless advocacy on this issue nationwide. I am pleased that we have dealt with this issue as a chamber in a multipartisan way.

While on the topic of child sex offences, this bill also presented us with a valuable opportunity to further amend the Bail Act to strengthen protections for children by way of amendment, which I have also been discussing with the Attorney in his office. The intent of those amendments is really simple: it is to prevent a person who has been charged with a class 1 or 2 offence from working with or applying to work with a child while on bail. If the bail authority, whether it be a court or a higher ranking police officer, were to provide an exception to this rule, it would be required to provide written reasons for that.

This is already the case with the class of work captured under the existing definition of child-related work. We are not creating anything new that is unknown to us. It is just worth pointing out that in every other setting, except for employment matters, where there is a child present there are protections in our law. In this instance, because we are dealing with employment matters of the child, those same protections do not exist and that, in my mind, is something that is completely unacceptable.

There would be many people in the community, including parents of working teenagers, who would be unaware that this loophole exists and would be outraged to know that it exists. Protections exist for children in schools, at sporting clubs and in a big list of other settings, as you would expect. Children are safeguarded in volunteer settings, they are safeguarded in kindergartens, they are safeguarded in the juvenile justice setting—they are safeguarded in every other setting except for work. Once the work uniform goes on, it seems that child workers are no longer considered children except, of course, for the purposes of their pay rate.

The same person who has been charged with a child sex offence, who would be prevented from coaching a child at a swimming pool, would be able to put on a Macca's uniform, or any other uniform for that matter, and supervise the very same child at work. That is entirely inconsistent. Members of the community would be both surprised and disturbed to learn that there are also no hard and fast rules for the police to notify employers when a worker has been charged with a child-related sex offence. It may occur on an ad hoc informal basis, or it may not.

There are a number of recent examples of people on outstanding child sex offence charges slipping through the cracks and being able to continue or commence work with children. The SDA has been particularly vocal in calling out the lack of protections for children in workplaces. In July last year Brendan Nazer faced court, still wearing his Coles uniform, charged with three counts of possessing child exploitation material. He had been working as a night-fill worker while on the register of child sex offenders, having been convicted of almost identical charges just 14 months earlier.

Nazer was able to continue to work as a McDonald's manager for 12 months while facing the original charges unbeknown to his employer. His employer, the employer of many young people, had no idea he was on charges until his conviction was made public. SDA secretary, Josh Peak, said at the time, and I quote:

It doesn't seem to make sense that people who are charged or convicted with child-related offences are removed from volunteer-type settings [or indeed employment] but can continue to work with children in the retail and fast food industries.

I know that this issue has caused a bit of concern, and we understand that there are concerns around issues that have been also raised by the SDA around costs for employers, but I think it is important to note that we are not asking in this amendment for a working with children check. That is something that would impose a cost on businesses. I might say, though, given the cheap rate at which we are employing those same kids, it pales into insignificance compared to the safety protection that it would provide to that child.

I know that potential unintended consequences have caused some concern for the Attorney, but I have to say I would be disappointed today if we were inclined not to support this amendment, because it is not something new that I have just come up with and raised: it is an issue that has been ongoing for some time now. I have seen the correspondence back and forth. I think it is fair to say that there are concerns that have been raised around the working with children checks. This is completely different.

Should there be outstanding issues that we cannot overcome today, then of course I will be looking for a commitment from the Attorney to address this issue, but I am really keen to work on this issue between the houses. I think it is important to note again that this is very different to imposing any costs on business for a working with children check. It is also not out of line with those requirements that someone, as I said before, would face if they were trying to coach swimming at the local swimming club as opposed to employment.

Ultimately, the decision rests with the courts and the judges who are considering those bail applications, and they can be adopted or adapted as such by the judge. If it is deemed appropriate to work in a certain setting, then the judge can make those orders. We are not asking courts to automatically make those orders without consideration of all the circumstances. What we are doing is making it explicit that the court will turn their minds to that particular matter when considering bail.

I should note for the record also that there is nothing preventing courts from doing that now, but it is not an explicit consideration that they need to make. What we are simply saying is that that absolutely should be the case because we are still dealing with the same cohort of young, vulnerable children; it is just that in this instance, they are at their place of work, as opposed to an educational, sports or community-type event. There is no reason why they should be provided with any lesser level of protection in that setting just because they are putting on a uniform and going to Coles or Woolworths, or Macca's or Hungry Jacks or KFC, or wherever they are going for work.

I note that this is an issue that has been addressed to some extent by SAPOL in the context of the difficulties that exist currently for SAPOL to implement some sort of process by which they can actually notify employers where they know that one of their employees is on these sorts of charges. I understand that the government remains concerned about this amendment, and I am going to seek some clarity from the Attorney on that, but again, despite being very grateful that the Attorney has picked up on other amendments that we have asked for in this bill, which are only appropriate, I would urge honourable members to consider supporting this on the basis that we deal with those concerns between the houses.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:12): I wish to thank all members who have contributed to this bill. I look forward to the committee stage and passing this bill in this chamber.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

New clause 3A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 3, after line 16—Insert:

3A—Amendment of section 11—Conditions of bail

(1) Section 11(13), definition of child-related work—delete the definition and substitute:

child-related work means—

(a) child-related work within the meaning of Part 5 of the Child Sex Offenders Registration Act 2006; or

(b) work in a shop in which goods are sold by retail (including a shop selling take-away food but not including a restaurant where food is only consumed on the premises) if any child works at the shop at any time;

(2) Section 11(13)—after the definition of class 2 offence suspect insert:

work has the same meaning as in Part 5 of the Child Sex Offenders Registration Act 2006.

The only other point that I would make before asking the Attorney to provide some clarity around the concerns that the government has on this amendment, is around questions that we have received previously about why we did not amend the Child Sex Offenders Registration Act.

Obviously, there is an opportunity here to address it; there is always more than one way to skin a cat. This was another way to do that via a different mechanism, but also one that I actually think is less onerous than the Child Sex Offenders Registration Act, potentially, because we are giving the court the ability to make this consideration when imposing conditions of bail.

If we had amended the definition of child-related work in the child sex offenders act, it is my understanding that would also mean that anyone who is a registered offender under that act would be excluded from engaging in child-related work. The issue with that approach is really about work that has to do with children, work that on its face will require an employee to come into contact with children.

If we expanded that definition to include work at any workplace where a child works, a child sex offender, in applying for a job, could not be expected to know whether a child could be working at the relevant place of work. For instance, in applying for a job at a grocery store or a restaurant, an applicant who is a child sex offender would not know if children worked at the store or restaurant and, even if they got the job on the basis that no children were there, a child could be employed there at any time which could make the child sex offender's employment untenable.

These are all issues that a judge can address when issuing bail under the Bail Act and it is for those reasons, in fact, that we chose to go with the former model—the one that is in our amendment—because we are basically saying the courts, the judge considering the bail application, can make these considerations.

It might be that we have deemed it entirely appropriate for a person to be employed at Macca's, but that the court says, 'Well, yes, you can work at Macca's amongst 15-year-old kids, but you can never work there unsupervised. You won't be able to supervise the children at Macca's or you won't be able to be the only adult on shift while supervising children.' There are all sorts of things the court could do, we are just giving them the ability to do that, putting it front and centre and something that must be addressed by them.

The Hon. K.J. MAHER: I thank the honourable member for her contribution. I also thank the honourable member for bringing the amendment to this place. I will indicate that, whilst the government will not be supporting the amendment, the government does commit to undertaking work in this area.

Similarly with a bill that was introduced earlier today, that was in no small part by way of a whole lot of reasons, but one of them certainly was an amendment to a previous bill that the Hon. Connie Bonaros had moved that the government committed to examining, looking at the form, seeing what consequences it may have that we were not aware of and, as a result of that work, we have a bill before this chamber that I think is a very welcome change to the law.

We do not oppose what the honourable member is talking about and I do not think anybody opposes making children safer; however, like with the last amendment, we would want to do a body of work to have a look at how this operates across a number of acts, but in particular what the consequences may or may not be that we just have not had the chance to do the work on.

While we will not be supporting this, I want to make it very clear that it is not that we do not support the concept. Certainly, as the Hon. Connie Bonaros has mentioned, organisations like the SDA have been very fierce in their advocacy for the need for some of these sorts of protections. In relation to some of the specifics—although, as I said, we want to do more work in terms of what we do not know yet, those unforeseen possible consequences—persons on bail for child sex offences under what is being proposed would be forbidden from engaging in child-related work.

The amendment as put forward now would expand the definition of child-related work to include any workplace if a child is also employed at that workplace. Again, I understand it is a very commendable intent to protect children from contact with child sex offenders in the workplace and potentially having that applying to anyone under 18 who could potentially be employed in the workplace. As I have said, we completely support and understand the child safety objectives of the amendments, while we oppose the amendment put forward today so we can do further work.

The breadth of the amendment, I think, would be something the government needs to do some work on. A very broad range of retail and hospitality establishments may employ people under the age of 18 and the prohibition would, at first instance, prevent any accused person from working in these businesses regardless of the degree of potential contact with child employees. It could, for example, remove the ability to work even if they worked at different times or in completely different areas of the workplace from someone under 18.

They would have to apply to a court for the lifting of this prohibition, under section 11(2)(a)(D) of the Bail Act, and bring evidence that their work did not pose a risk to the safety and wellbeing of children, even if they worked at different times than any child worked. While, as the Hon. Connie Bonaros mentioned, this is something that they could do and it is work that the court could do, by having that prima facie prohibition we would be concerned that there may be a lot of court time used and directed towards these applications to lift conditions and we would want to do some work to try to refine how this may be applied or the breadth in relation to it, particularly if there are areas where children do not work or there are times where there is no child working.

While we acknowledge and support the intent of making children safer, as currently drafted the amendment does not take into account the interaction between child-related work provisions in the Bail Act, the Child Sex Offenders Registration Act and the working with children scheme. The amendment, necessarily as drafted, would prevent a person working alongside a child as an employee only while on bail and not take into account the operation of those other schemes. However, if they were, for example, convicted and sentenced for the offence, then they would be no longer on bail and that prohibition would no longer apply. So that is a part of the area that we would like to do further work on.

As I said at the outset, as with the amendment to section 50 of the Criminal Law Consolidation Act, it was brought by way of amendment. We did further work and we are making good and I think necessary change in that respect. We will be voting against the amendment today, but we share, absolutely, the concerns about child safety and will commit to doing work in this area to see if there is a way to do this that takes into account some of the concerns I have raised today.

The Hon. J.M.A. LENSINK: The Liberal Party commends the Hon. Ms Bonaros for bringing this amendment to the house. We had a bit of a robust corridor discussion probably in the last 30 minutes in relation to this particular amendment, which the Liberal Party had intended to support. On the advice of the government about the level of matters, we unfortunately will not be supporting it at this time.

I think the Attorney certainly has his work cut out for him and we will be assisting in any way we can to hold him accountable. A lot of these legal matters are quite complex and, clearly, the best interests of children's safety needs to be at the heart of all of these decisions, but we reluctantly accept that supporting this amendment could cause some complexities that will need to be worked through posthaste.

The Hon. T.A. FRANKS: For the record, the Greens will be supporting the amendment of the Hon. Connie Bonaros.

New clause negatived.

Remaining clauses (4 to 12) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:24): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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