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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-05-01 Daily Xml
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Statutes Amendment (Criminal Justice Measures) Bill

Introduction and First Reading

The Hon. F. PANGALLO (16:26): Obtained leave and introduced a bill for an act to amend the Bail Act 1985 and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. F. PANGALLO (16:27): I move:

That this bill be now read a second time.

The bill, informally referred to as the 'post and boast' measures, has two important elements. The first is changes to the Bail Act 1985. Part 2 amends section 10A of the Bail Act 1985, creating a presumption against bail for a child or youth in certain cases where a prescribed applicant is charged with a prescribed offence and an offence against section 21AA of the Summary Offences Act 1953 if (1) the prescribed offence is the alleged principal offence for the purposes of the charge of the offence against 21AA of the Summary Offences Act 1953, and (2) at the time of the alleged offending the applicant was a child of or above the age of 14.

The prescribed offences to which this applies are the following offences contained in the Criminal Law Consolidation Act 1935: (1) section 86A—Using motor vehicle without consent; (2) section 169—Serious criminal trespass—non-residential buildings; and (3) section 170—Serious criminal trespass—places of residence. There is a transitional provision for this charge to the Bail Act. It applies to a person who applies for bail on or after commencement of this division on assent, whether or not the relevant offence was committed before or after the commencement of this division.

Amending section 10A of the Bail Act 1985 makes it very clear to the court that in these specific circumstances there is no statutory presumption of bail. That is, if the offending and the offender meets the criteria, the onus shifts onto the applicant for bail to convince the bail authority that there are special circumstances justifying bail before the bail authority can grant bail. This will apply irrespective of if they are already on bail or not.

The court still maintains its discretion if special circumstances exist. These are well-established by common law and statute, but the bill makes it very clear that there is a presumption against bail if these criteria apply. Three years after assent, the definition of prescribed applicant (i) and prescribed offence (ii) will expire unless reinstated by legislation, following a two-year review of the effectiveness of these changes.

These provisions ensure young people accused of stealing a car or breaking into a house or commercial non-residential premises and who have posted their exploits online will find it tougher to get bail. The days of turning up at Youth Court on Monday morning after a weekend of trespass and/or car theft, bragging and glorifying these criminal behaviours online via TikTok, Facebook, Instagram, Snapchat or any other social media or online platform and expecting to be granted bail, often yet again, are over.

The community has had a gutful of these unhinged, disrespectful kids seeing bail as little more than a slap on the wrist and licence to get back out there and reoffend, to brazenly snub their noses at our hardworking police, the justice system and their victims, to seek infamy and notoriety amongst their peers.

Make no mistake: these are not victimless crimes. Home invasion, car theft, dangerous pursuits and theft have a huge impact on community safety and wellbeing. One of the lesser considered victims is the out-of-control perpetrators themselves. We know all too well how youth offending can lead to a lifestyle of youth recidivism, adult offending, escalating serious offence offending, substance abuse, mental illness and homelessness. There is also evidence that criminals recruit vulnerable children on social media to commit these crimes. Being remanded in custody puts the brakes on this.

From a safety perspective, it protects these kids from themselves and the dangers inherent in reoffending, such as repeatedly stealing cars and hooning around or breaking into homes and businesses, often violently accosting and assaulting homeowners in the sanctity of their own homes or traumatising innocent staff members working hard to make a living at their local servo or bottle shop.

As the New South Wales Premier, Chris Minns, said recently, and I quote, 'This is an intervention to stop a young Indigenous kid or non-Indigenous kid stealing a car and killing themselves by wrapping it around a pole or a tree, which I don't want to see.' It also aims to prevent new offenders being recruited into co-offending or recruiting others to join in their infamous criminal exploits and from developing an ongoing, entrenched dysfunctional role in our community.

Interstate investigators say alleged foot soldiers are being groomed and recruited by seasoned crooks using encrypted apps such as Telegram and Threema because youth were less likely to face jail time if caught. The Herald Sun revealed last year that children, some as young as 11, were common targets on social media by bikie gangs that would connect them with other young budding criminals to carry out burglaries and assaults on their behalf.

Police tell me they are sick to death of constantly identifying, apprehending and detaining youth who are seemingly not only nonchalant about their crimes but are now increasingly bragging about them on social media, seeking their five minutes of fame. They are often relatively easy to apprehend, as they become more brazen and almost proud of their exploits.

Senior criminal lawyers have given me dozens of firsthand accounts of youth offenders showing surprisingly little concern about being apprehended and facing the Youth Court again and again. Sadly, they also report that these same kids need help. They come from broken homes, lack positive role models, have disabilities, have a lack of education, substance misuse issues, mental health issues or foetal alcohol distress syndrome, are in state care, have no safe place to live, or are homeless and often hungry and cold.

Many wander the streets at night and sleep in the relative warmth of the day anywhere they can. Crime supports their day-to-day survival but, even more tragically, incarceration in jail—or 'in juvie' as it is referred to by this cohort—is often a safer and more reliable alternative to sleeping and potentially dying in a dumpster.

The bill aims to protect the community from these kids and to better utilise youth support, police and court resources for preventative, diversionary and rehabilitative alternatives such as employment, training, education and treatment. South Australian communities, particularly some regional communities, are over the current approach. It is simply not working and the government cannot continue with its kid gloves approach to what is often very serious and life-threatening offending. Labor governments in New South Wales and Queensland have done something. This bill is South Australia's opportunity to do something.

According to the national ABS statistics of 2022-23, after accounting for population growth the youth offender rate increased from 1,778 to 1,847 offenders per 100,000 persons aged between 10 and 17 years. This was the first increase in the rate of youth offending since 2009-10, more than 12 years ago. In South Australia specifically, 9 per cent of total offenders were youth offenders, more than double the national average of 4 per cent.

New laws that recently came into effect in New South Wales have seen a teenager become the first person charged under New South Wales's post and boast laws after allegedly stealing a Ferrari and BMW from a home in Sydney's northwest. In Queensland, police have charged over 120 young offenders under its new post and boast laws introduced in March this year. Queensland deputy police commissioner, Shane Chelepy, said these are not trivial offences.

Queensland police is actively perusing over 300 online sites and has been able to not only deter others from seeking the same kind of infamy but also to detect a range of offending that may have otherwise gone undetected. New South Wales investigations into the footage of a teenager stabbing a minister of religion, which was widely posted on X and other forums, led to the apprehension of other serious teenage offenders, a haul of illegal drugs, knives and weapons, and vital intelligence in relation to individuals and groups planning future criminal enterprises.

Queensland police also established Taskforce Guardian, a specialist group of detectives and youth justice workers flown into regional centres. This is a model I would like SAPOL to replicate in towns like Ceduna and Port Augusta, which are constantly crying out for help due to their crime rates. In Queensland, Taskforce Guardian has so far diverted over 180 people with alternatives including restorative justice and issuing cautions.

Unlike many community members who understandably just want to rack 'em, pack 'em and stack 'em, as one colourful former politician described as the function of the system, these changes to the Bail Act and the Summary Offences Act alone are not enough. We know education and training are tickets out of poverty and out of a life of crime, but there is often little on offer to disengaged youth, particularly in regional and remote areas, and no trajectory out of the welfare trap and socio-economic poverty that a life of crime offers.

This amendment cannot act effectively in breaking the cycle without critical proactive support in the community and comprehensive rehabilitation programs should a youth enter into custody. We need to fund and support more effective interventions. The Advertiser reported on 23 May that when asked what drove his offending one 10-year-old boy from the Downtown gang in Port Augusta said he was bored and had nothing to do.

I know that there are many community leaders and experts in South Australian regional areas and towns, as well as the metropolitan area, who want to see more proactive preventative programs rolled out. Like all South Australians, I would also like to see these young kids steered away from a life of crime and into one where they are making really positive contributions, not only personally but with their families and the communities in which they live.

In a report tabled in parliament late last year, the Justice Reform Initiative reported that South Australia's swelling incarceration rate is collectively costing the state more than $374 million annually in operation costs alone, so an investment into breaking the cycle of about $300 million is a sound investment in keeping people, particularly children, out of jail.

Dr Mindy Sotiri, the highly reputable and regarded director of the bipartisan Justice Reform Initiative, said there was an opportunity for South Australia to move away from imprisonment through genuine alternatives, such as early prevention, diversion and specialist courts that address disadvantage. She said greater investment was needed to provide pathways out of the justice system, particularly with First Nations led alternatives.

For example, in Moree, New South Wales, where the break and enter offending rate was a staggering 840 per cent higher than the state average, new post and boast measures have been accompanied by expanding youth support services beyond the hours of Monday to Friday 9 to 5, as well as improving bail accommodation and support options. They have also extended the opening hours for public pools and community centres to give young people more activities.

Connecting at-risk kids with targeted interventions and positive life choices is a body of work that successive governments have neglected in this state. The state budget continues to underinvest in education, training, rehabilitation and prevention. We need therapeutic responses, we need wraparound services and we need diversionary programs, but we also need deterrents and appropriate penalties to deal with the increasing phenomenon of posting and boasting. I will be persistently asking the government about progress against the recommendations of the Justice Reform Initiative report, to ensure we tackle this problem from all angles.

The second element of the bill, changes to the Summary Offences Act 1953, creates a new offence, 21AA, of a person committing an offence by publishing material to advertise (1) the person's involvement in the offence or (2) the act or omission constituting the offence. This new offence carries a maximum penalty of imprisonment of two years.

'Advertise' means attract the notice and attention of the public or a limited section of the public. 'Material' includes (1) any written and printed material, (2) any photographic, electronic or other information or data from which an image or representation may be produced or reproduced and (3) any audio, video or other recording from which an image or sound may be produced or reproduced. 'Publish' means publish by any means, including via the internet, social media or other electronic means.

Amendment to section 21AA applies to offences committed on or after the commencement of this part by anyone of any age. All of the amendments in this bill are subject to the minister reviewing the operation and effectiveness of the amendments made by part 2, division 1, and part 3 of the act after the second anniversary of commencement and a report to be laid before both houses of parliament. At this point, parliament can assess the impacts and decide whether the bill has had the desired effect.

The provisions of section 21AA mean that anyone committing offences and then sharing videos, photos or accounts of their exploits to social media or any online forum or means of publishing commits a new offence, and they could face an additional two years in prison. It is designed to stop offenders posting videos of their crimes to social media in an attempt to claim notoriety and kudos for their offending. Often, this is being done for likes and/or to draw new followers on social media and for the perceived infamy the offender believes they receive by such actions. It is completely and utterly unacceptable, and it has to stop.

There is also strong circumstantial evidence provided by Victorian, New South Wales and Queensland police that this exhibition-like behaviour is encouraging further criminal behaviour. This bill also aims to address this. In developing this bill, I found it incredibly easy to find examples of offending posted on TikTok, Facebook, X, Instagram, Snapchat and other social media platforms. There is some particularly sickening footage. The recent stabbing of a minister of religion and subsequent affray in Sydney are recent examples.

In one shocking incident in Victoria, four youths, including a 14-year-old ward of the state, posted footage of themselves in a car mowing down two cyclists on a road in Melbourne's bayside suburbs. The 14 year old had been on bail with strict conditions at the time of the incident. The court later heard he had been contacted on social media by other young people who had committed crimes. In another incident, three teenagers posted a video of themselves appearing to push a 79-year-old man off a pier in Victoria.

Social media has changed the nature of post-crime behaviour. So-called performance crimes, where offenders boast about their criminal behaviour to their friends and followers online, are increasingly common. Not only is it easy to find examples of posting and boasting, it is also very concerning how many social media platforms are unwilling or unable to take these posts down.

We have witnessed in recent weeks social media giant X's arrogant owner, Elon Musk, fighting to keep harmful content online. X has challenged an order to remove material, issued by Australia's eSafety Commissioner, Julie Inman Grant, and raised concerns about censorship and the jurisdiction of Australian laws and edicts dictating what overseas users can see. Using her powers under the Online Safety Act, the eSafety Commissioner issued legal notices to companies including Google, Meta, Reddit, X and Telegram in March this year, asking them to explain how they are taking action against violent and extremist material. There are also questions focused on X's new 'anti-woke' generative AI, Grok. The companies have 49 days to respond.

A 2022 OECD report found Telegram hosted more terrorist or violent extremism content than any other social platform, followed by Google's YouTube, X (then Twitter) and Meta's Facebook. The regulator is also involved in an ongoing lawsuit with X after the company failed to pay an infringement notice related to a similar notice issued last year about how the company was responding to child abuse material on its platform.

X has appealed against the eSafety Commissioner's decision, and she is also suing the company over failing to pay a $610,000 fine. X has said the eSafety Commissioner did not have the authority to enforce what users could see globally, branding the move an 'unlawful and dangerous approach'. Musk argued that global take-down orders also violated the principle of an open internet and threatened free speech. As senior Labor frontbencher Tanya Plibersek said, and I quote:

It beggars belief, doesn't it, that this egotistical billionaire thinks it's more important for him to show whatever he wants on X or Twitter…than to respect the victims of crimes.

Greens Senator Sarah Hanson-Young has called for Mr Musk to front an Australian parliamentary inquiry and answer questions about algorithms that help content go viral and garner attention. She said, and again I quote:

It is no wonder Elon Musk, the narcissistic cowboy, thinks he can just give the middle finger to the Australian government because for too long, we've had little to no regulation.

Liberal Senator Simon Birmingham said it was an 'insulting and offensive argument' to say that the removal of imagery of a terrorist attack was censorship and it should be left unfiltered for children and others to see. I see federal Liberal MP the Hon. David Coleman introduced a new youth crime post and boast bill into the federal parliament on 25 March 2024.

These comments made by all sides of politics show the measures contained in my private member's bill have strong bipartisan support. The growing incidents and examples of posting and boasting criminal behaviour on social media are all the proof we need that we must act now before it becomes a social norm and completely out of control.

Closer to home, I will point out that two journalist colleagues I know—Stacey Lee, who is on FIVEaa, and also Mitchell Sariovski, who works at Channel 7 in the news department—were victims of crime, of breaking and entering and trespass, and then the perpetrators posted their crime online. Not only that, they even then, on social media platforms, boasted and then harassed certainly Mr Sariovski's wife about the crime that they committed. There is certainly a need to stop this type of activity.

I look forward to this bill enjoying the same level of support in South Australia as has been expressed by federal and state Labor, Liberal, One Nation and Independent members in their respective parliaments across Australia. I commend the bill to the Legislative Council.

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

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