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Offences against children, young people and vulnerable adults

This section of the Law Handbook deals with the many offences that have been created to protect young people, and to prevent them from engaging in, or being subjected to particular activities before they reach the age of 18 years.

There are offences covered in other parts of this chapter that may be relevant to young people because they may be more likely than older people to commit them, such as graffiti, trespass to private parties or offences on public transport.

Sexual offences

The position of inequality between offender and victim and the life long effect on a victim makes these crimes particularly serious. As such the maximum penalties for these offences can be quite high. For example, the maximum penalty for the offence of Persistent sexual abuse of a child, is imprisonment for life [Criminal Law Consolidation Act 1935 (SA) s 50].

Offences of this nature are covered under the Criminal Law Consolidation Act 1935 (SA) and some of the specific provisions relating to children, young people and vulnerable adults are explained in this section.

Production of child exploitation material (child pornography)

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of its pornographic nature.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63 of the Criminal Law Consolidation Act 1935 (SA)]

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

Possession of child exploitation material (child pornography)

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; or who intends to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

Maximum penalty:

  • First offence:

    basic offence: 5 years imprisonment

    aggravated offence*: 7 years imprisonment

  • Subsequent offence:

    basic offence: 7 years imprisonment

    aggravated offence*: 10 years imprisonment

[s 63A(1) of the Criminal Law Consolidation Act 1935 (SA)].

It is a defence to this charge to prove that the material was unsolicited and that the person took reasonable steps to get rid of it as soon as they became aware of the material and its nature [s 63A(2)].

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

'Sexting' and the production and dissemination of child exploitation material (child pornography)

What is sexting?

'Sexting involves sending suggestive or sexual images through mobile phones that can then be posted on the internet or forwarded to other people.' (NSW government media release 3 May 09).

Is sexting illegal?

Yes, if it involves the production or dissemination of child exploitation material, or offends laws against indecency and offensive or harassing behaviour.

Federal Law

Under the Criminal Code Act 1995 (Cth) it is an offence to use phone or internet services to access, send, publish or solicit (ask others to provide) material that is child pornography [s 474.19(a)].

Under the Act child pornography includes material includes:

  • an image of someone (or a description of someone) who is, or appears to be, under 18 years old, engaged in (or appears to be engaged in) sexual activity, in a sexual pose, or is in the presence of a person engaging in sexual pose or activity; or
  • depicts for a sexual purpose or describes, the sexual organs or anal region or female breasts of a person who is or appears to be, or is implied to be under 18 years old; and

is offensive to reasonable persons [see s 473.1 Criminal Code Act 1995 (Cth)].

Other offences under the Criminal Code Act 1995 (Cth) that could be committed by sexting include:

  • use of phone or internet services to ‘groom’ children under 16 years old for sexual activity [s 474.27];
  • procurement of under 16 year olds for sexual activity [s 474.26];
  • use of phone or internet services to send indecent communications to children under 16; and
  • the use of phone or internet services to menace harass or cause offence [s 474.17].

State Law

In South Australia sexting is illegal under the Criminal Law Consolidation Act 1935 (SA) if it involves the possession, production or dissemination of child exploitation material.

Under the Criminal Law Consolidation Act 1935 (SA):

Child exploitation material means material that:

  • describes or depicts a person who is under the age of 17, or who appears to be under the age of 17, engaging in sexual activity ; or consists of the image of a child or bodily parts of a child, or appears to have involved a child; and
  • is of a pornographic nature (intended to excite or gratify sexual interest; or to excite or gratify a sadistic or other perverted interest in violence or cruelty) [s 62].

Production and dissemination includes producing or taking steps to produce or disseminate child exploitation material, knowing of its pornographic nature [s 63]. The maximum penalty for this offence is 10 years imprisonment for a basic offence. 12 years imprisonment for an aggravated offence (e.g. if the child was under 14 or an offensive weapon was used or threatened to be used).

What if someone sent me child exploitation material (child pornography) even though I didn’t ask for it?

It is a defence to a charge of possessing child exploitation material if it can be proved that the material came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it [s 63A(2)].

Unlawful sexual intercourse

Any person 17 years or older can have sexual relations with another person aged 17 years or more, if they each consent. This can be a person of the same or the opposite sex [Criminal Law Consolidation Act 1935 (SA) s 57]. It is against the law for a person in a position of authority (for example, a teacher) to have sex, or to try to have sex with a person under 18 years [Criminal Law Consolidation Act 1935 (SA) s 49].

The offence of Unlawful Sexual Intercourse includes:

  • A person who has sexual intercourse with a person under 14 years old.

    Maximum penalty: life imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(1)];

  • A person who has sexual intercourse with a person under 17 years old -

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(3)]

    (However there is a defence to this if the alleged victim is above 16 years old and the accused person either was under 17 years old themselves or reasonably believed that the alleged victim was over 17 years old [s 49(4)];

  • A person who has sexual intercourse with a person under 18 years old who holds a certain position of authority (such as teachers, foster-parents, guardians, step-parents, religious officials, spiritual leaders, social workers, employers, and others)

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(5), s 49(5a)];

  • A person who, knowing the other person is, by reason of intellectual disability, unable to understand the nature or consequences of sexual intercourse, has sexual intercourse with the other person;

    Maximum penalty: 10 years imprisonment

    [Criminal Law Consolidation Act 1935 (SA) s 49(6)].

Willingness of the alleged victim to engage in sexual intercourse is not a defence to any of these offences [s 49(8)]. Parental permission is also not a defence.

A useful website for young people and parents on this topic is: www.trustedmoments.com.au

Sexual offences where the victim has a cognitive impairment (for example an intellectual disability)

Under section 51 of the Criminal Law Consolidation Act 1935 (SA) there are two specific sexual offences where the victim has a cognitive disability:

  • sexual intercourse or indecent contact; and
  • indecent manner.

Sexual intercourse or indecent contact

Under section 51(1) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to, by undue influence, have sexual intercourse or indecent contact with that person.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty: 10 years imprisonment

Indecent manner

Under section 51(2) of the Criminal Law Consolidation Act 1935 (SA) it is an offence for someone who provides a service to a person with a cognitive impairment to behave in an indecent manner in the presence of that person without the person’s consent.

There is no consent if the consent was only obtained by undue influence.

This offence applies whether or not the offender is a worker or a volunteer.

Maximum penalty:

First offence - 3 years imprisonment

Subsequent offence – 5 years imprisonment

What is a cognitive impairment?

For these offences cognitive impairment includes:

  • an intellectual disability;
  • a developmental disorder (including autistic spectrum disorders);
  • a neurological disorder;
  • dementia;
  • mental impairment;
  • a brain injury.

[Criminal Law Consolidation Act 1935 (SA) s 51(5)]

Undue influence

Undue influence is about improperly taking advantage of another person’s weakness to get them to agree to something.

Undue influence is defined in these offences as including the abuse of a position of trust, power or authority [Criminal Law Consolidation Act 1935 (SA) s 51(5)].

Evidence – reverse burden of proof

For the purpose of these offences a defendant who is in the position of power, trust, or authority, to the alleged victim is presumed to have obtained consent of the victim by undue influence.

This is the case unless the defendant proves, on the balance of probabilities, that they did not get consent in that way [Criminal Law Consolidation Act 1935 (SA) s 51(4)].

Evidence - victim or witness with cognitive impairment

The court can also make special arrangements for protecting a witness with a cognitive impairment from embarrassment or distress when giving evidence [ see further s13 - 13A, 14A Evidence Act 1929 (SA), see also: Pre-trial special hearings].

Partner exception

The offences do not apply to a person who is legally married to, or the domestic partner of, the person with a cognitive impairment [Criminal Law Consolidation Act 1935 (SA) s 51(3)].

However other criminal laws apply in relation to rape, assault, and other offences, even if the people are legally married or in a de facto relationship [see further the sections in the handbook on family violence, rape, compelled sexual manipulation, indecent assault].

Further information

The Legal Services Commission runs community legal education programs for people living with a disability and workers – see the page on Law 4 All.

The Attorney General’s Department of South Australia website contains further information – see: Disability Justice Plan.

Procuring child to commit indecent act

It is an offence for a person to encourage or procure a child to commit an indecent act.

It is also an offence to, for the person's own, or anothers, sexual gratification, to cause or persuade a child to expose any part of his or her body or to make a photographic, electronic or other record from which the image of a child engaged in a private act may be reproduced. A private act includes any sexual act, nudity or intimate bodily function.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63B(1) of the Criminal Law Consolidation Act 1935 (SA)]

It is also an offence to procure a child or to make a communication with the intention of procuring a child to engage in sexual activity.

Maximum penalty:

  • basic offence: 10 years imprisonment
  • aggravated offence*: 12 years imprisonment

[s 63B(3) of the Criminal Law Consolidation Act 1935 (SA)]

It is a defence under these sections if the accused person (other than accused people in positions of authority) prove that:

  • the child was 16 years or older; and
  • the accused person was either under 17 years old or believed on reasonable grounds that the person was of or above 17 years old.

[s 63B(4) of the Criminal Law Consolidation Act 1935 (SA)]

* An aggravated offence, for the purpose of this offence, includes where the offender committed the offence knowing that the victim of the offence was aged under 14 at the time [see s 5AA(1)(e)]. It can also include other general aggravating factors as set out in s 5AA.

Evidence of children, young people and vulnerable adults

Complaints of sexual interference from children, particularly young children, involve difficulties in investigation and prosecution. Children often have trouble explaining what has happened either because of their lack of understanding or simply because of limited vocabulary and may also have problems with the exact dates that acts occurred.

Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.

Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.

To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].

Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [ s 9(4)Evidence Act 1929 (SA)].

Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.

While a child gives evidence in a child sexual abuse matter, all non-essential persons will be ordered to leave the court [s 69(1a) Evidence Act 1929 (SA)] and the child will be allowed to have support person in court with them [s 12 Evidence Act 1929 (SA)]. The evidence of a child who is 14 years old or younger, may also be heard at a pre-trial special hearing under the procedure outlined in s 12AB of the Evidence Act (SA) (see below). There are also additional protections that can be put in place to protect a child who is of or under 14 years old when giving evidence in criminal proceedings [see s 13A Evidence Act 1929 (SA)].

Pre-trial special hearings

A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].

This type of trial is available only in trials of a charge of a serious offence against the person or of charges of contraventions of intervention orders or restraining orders [s 12AB(14)].

The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].

Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:

  • That the Court can change the setting in as it sees fit, such as a more informal setting;
  • If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
  • That an audio visual record of the evidence be made;
  • That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
  • If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing.

    [s 12AB(2)(a)]

The court may also make the following provisions:

  • That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
  • Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
  • Provide for any other matter that the court thinks fit.

    [s 12AB(b)]

There many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.

Registration of child sex offenders

Under the Child Sex Offenders Registration Act 2006 (SA) registrable offenders have to report their personal details to the Commissioner of Police [ss 11 - 13].

Who is a registrable offender?

A registrable offender is a person who:

  • a court has at any time sentenced for a class 1 or class 2 offence, or is, or has been, the subject of a child sex offender registration order; or
  • who is, or has been subject to a child sex offender registration order.

[Section 6(1) Child Sex Offenders Registration Act 2006 (SA)]

There are also provisions deeming people registrable where they were sentenced for the same types of offences interstate and overseas [see ss 6(2), 6(3), 7 and 8].

The following are not registrable offenders:

  • a person who committed a class 1 or class 2 offence as a child, or a person who has committed a single class 2 offence if the sentence did not include a term of imprisonment and was not a supervised sentence (such as community service or home detention);or
  • a person who was sentenced for a single class 2 offence more than 8 years prior to the commencement of the Act (18 October 2007);or
  • a person who was sentenced for a single class 1 offence or two class 2 offences more than 15 years prior to the commencement of the Act.

[ss 6(4)-(5) Child Sex Offenders Registration Act 2006 (SA)]

Additionally there are provisions covering where a person ceases to be a registrable offender (for example, where the only registrable offence that makes them registrable is quashed or set aside, reduced) [s 6(6)].

Class 1 offence:

Class 1 offences are listed in Schedule 1 Part 2 of the Act. They include serious offences under the Criminal Law Consolidation Act 1935 (SA) against a child victim (such as murder, endanger life, rape, unlawful sexual intercourse*, kidnapping) where the offence also involves a sexual offence.

(*does not include unlawful sexual intercourse where the victim consents and either: the offender was aged 18 and the victim not less than 15 at the time of the offence, or the offender was aged 19 and the victim not less than 16 at the time of the offence).

Class 1 offences also include offences against certain federal criminal laws such as offences sexual abuse, and other unlawful sexual activity with children under 16 (and in the case of a person of trust and authority children who are 16 and 17 also), committed outside of Australia. These offences include associated procuring, grooming, encouraging and benefiting from types of offences.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 1 offences [Schedule 1, clause 2(m) and (n)].

A full list of class 1 offences can be found in Schedule 1 Part 2 of the Act.

Class 2 offence:

Class 2 offences are listed in Schedule 1 Part 3 of the Act. They include offences (such as manslaughter, risk of harm, indecent assault) against a child where the offence also involves a sexual offence.

Class 2 offences also include offences against certain federal criminal laws such as trafficking children and obtaining child exploitation material (child pornography) through the post or similar, or the internet or telephone. Also grooming and procurement of children under 16 year via these means is covered in this class.

Conspiracy, attempt, aiding and abetting, counselling or procuring commission of any of these offences are also Class 2 offences [Schedule 1 clause 3 (l) and (m)].

A full list of class 2 offences can be found in Schedule 1 Part 2 of the Act.

Child sex offender registration order

Additionally, an order can be made on sentencing for other offences for the offender to comply with the reporting obligations of this Act if the court is satisfied that the person poses a risk to the sexual safety of any child or children [s 9 Child Sex Offenders Registration Act 2006 (SA)].

The Magistrates Court may also make an order that a person comply with the reporting obligations of the Act when they also make a paedophile restraint order [s 9(1a)(SA)].

Serious registrable offender

A serious registrable offender is a registrable repeat offender (committed on three separate occasions a class 1 or 2 offence or on 2 occasions if the victim was under the age of 14) [s 4(1)] Child Sex Offenders Registration Act 2006 (SA)]. Additionally, a person can be declared a serious registrable offender if the Commissioner of Police is satisfied that a registrable offender is at risk of committing further class 1 or 2 offences [s4(1), s 10A(1)]. A serious registrable offender can apply to the Commissioner for written reasons for the decision and there is ability to appeal this decision of the Commissioner [ss 10B(3) and 10B (1)].

The main affect of being declared a serious registrable offender is additional reporting requirements may be imposed (see below). Additionally the Commissioner may issue a requirement to a serious registrable offender to carry a tracking device, failing to wear, carry or maintain the device is an offence, maximum penalty, $10 000 or imprisonment for 2 years [s 66N].

Reporting obligations

Registrable offenders must report their personal details to the Commissioner of police where:

  • A registrable offender (other than a foreign registrable offender) who enters government custody in South Australia …as a consequence of having been sentenced for a registrable offence and who ceases to be in government custody whilst in South Australia. This must be done within 7 days after he or she ceases to be in government custody;
  • Any other person who becomes a registrable offender because he or she is sentenced for a class 1 or class 2 offence in South Australia or who becomes a registrable offender because of a child sex offender registration order made by a court in South Australia. This must be done within 7 days after he or she is sentenced for the class 1 or class 2 offence or the child sex offender registration order is made (as the case may be);

  • A registrable offender who enters South Australia from a foreign jurisdiction and who has not previously been required under this section to report his or her personal details to the Commissioner. This must be done within 14 days after entering and remaining in South Australia for 7 or more consecutive days, not counting any days spent in government custody;

  • A foreign registrable offender who has not previously reported his or her personal details to the Commissioner and who is in South Australia on the date on which he or she becomes a foreign registrable offender. This must be done within 7 days after he or she becomes a foreign registrable offender or 7 days after he or she ceases to be in government custody, whichever is the later; and

  • A registrable offender who is leaving South Australia must, report his or her personal details to the Commissioner before leaving South Australia unless he or she entered South Australia from a foreign jurisdiction and remained in South Australia for less than 7 consecutive days, not counting any days spent in government custody.

[s 11 Child Sex Offenders Registration Act 2006 (SA)].

There is also an obligation to report, within 7 days of sentencing, when a registrable offender's reporting period expires but he or she is then sentenced for a registrable offence, or becomes a foreign registrable offender [see s 12]

The personal details that must be reported by a registrable offender are set out in s 13 of the Child Sex Offenders Registration Act 2006 (SA) and include such things as names, cars owned or driven, tattoos, telephone numbers used, internet connection details, email addresses, passwords, usernames, and other details. These must be reported annually [s 15].

Under section 15A of the Act serious registrable offenders may be required to make additional reports as declared by the Commissioner of Police.

Despite any other provision in the Act, if a registrable offender has reportable contact with a child, the registrable offender must provide details of the contact to the Commissioner within two days of the contact occurring [s 20A].

Penalty for failing to comply with reporting obligations

The maximum penalty for failure to comply with reporting obligations without reasonable excuse is $25,000 or 5 years imprisonment [s 44 Child Sex Offenders Registration Act 2006 (SA)].

The register and access to it

The maintenance and access to the register are governed by sections 60-65 of the Child Sex Offenders Registration Act 2006 (SA). The register is maintained by the Commissioner of Police and the Commissioner is also responsible for developing, maintaining and adhering to guidelines about access to the register. A registrable offender is able to request, in writing, access to their information and seek amendment of incorrect information [s 63].

It is an offence to disclose confidential information about a registrable offender obtained under the Act, except in accordance with the Act (including law enforcement purposes and as otherwise set out). The maximum penalty for this is 5 years imprisonment [s 67].

Registrable offenders are prohibited from particular work

Registrable offenders are prohibited from applying for or engaging in work child-related work.

The maximum penalty for this is imprisonment for 5 years [s 65 Child Sex Offenders Registration Act 2006 (SA)].

This includes work involving contact with a child in connection with any of the following:

(a) pre-schools or kindergartens;

(b) child care centres;

(c) educational institutions for children;

(d) child protection services;

(e) juvenile detention centres;

(f) refuges or other residential facilities used by children;

(g) foster care for children;

(h) hospital wards or out-patient services (whether public or private) in which children are ordinarily patients;

(i) overnight camps regardless of the type of accommodation or of how many children are involved;

(j) clubs, associations or movements (including of a cultural, recreational or sporting nature) with significant child membership or involvement;

(k) programs or events for children provided by any institution, agency or organisation;

(l) religious or spiritual organisations;

(m) counselling or other support services for children;

(n) commercial baby sitting or child minding services;

(o) commercial tuition services for children;

(p) services for the transport of children; and

(q) taxi services and hire car services.

[s 64(1) Child Sex Offenders Registration Act 2006 (SA)].

There is a defence to this charge where the accused can prove that they did not know that the work was child related work [s 65(2)].

The Commissioner of Police can give a person who has committed a class 1 or 2 offence written notice to provide them with information about their work [s 65A(1)]. It is an offence to fail to comply with such a notice, maximum penalty $10 000 or imprisonment for 5 years [s 65A(2)].

Under the Act a police officer are able to disclose to any employer or prospective employer that a person has been arrested or reported for a class 1 or 2 offence and provide details of the alleged offence [s 65A(3)(b)].

A person engaged in child-related work who is arrested or reported for a class 1 or 2 offence must disclose this to their employer within 7 days (in the case of an arrest or report prior to commencement of the section – within 7 days of commencement)[s 66(1)]. A person must also, on application for work, disclose if they have been reported for such offences if proceedings have not been finalised [s 66(2)]. Under both of these provisions the maximum penalty is $5000.

Exemptions, modifications and suspensions granted by the Commissioner of police.

The amending Act has inserted Part 5A—Exemptions, modifications and suspensions granted by Commissioner. This deals with the general power of the Commissioner of police, on application (and payment of a fee) of a registrable offender, make a declaration to modify their reporting obligations [s 66B Child Sex Offenders Registration Act 2006 (SA)].

The Commissioner of Police may only make such a declaration if:

  • The relevant offences against were either indecent assault, acts of gross indecency or unlawful sexual intercourse with a person under 17 years; and
  • the registrable offender has been a registrable offender for at least 12 months and has complied with the Act during that period; and
  • the Commissioner is satisfied that the offender does not pose a risk to the safety and well-being of children [s 66B(4)].

The Commissioner of Police may not make such a declaration if:

  • there was more than one victim of the relevant offences; or
  • the offender was more than 10 years older than the victim at the time of any relevant offence; or
  • the victim of any relevant offence was less than 14 years old; or
  • any relevant offence was committed in connection with child-related work engaged in by the offender [s 66B(5)].

The Commissioner of Police may refuse to consider an application to make such a declaration unless the registrable offender undergoes a risk assessment at their own expense [s 66B(2) –(3)]. The Commissioner must take into account any risk assessment, any other offending, any victim impact statement and the sentencing remarks relating to each relevant offence [s 66B(7)].

If the Commissioner does make a declaration under this part, the Commissioner can attach conditions to it [s 66B(6)].

The Commissioner of Police may also, with or without application, suspend a person’s reporting obligations on the basis that they have a disability that makes it impossible for the person to satisfy his or her reporting obligations and do not pose a risk to the safety and well-being of children [s 66C].

The Commissioner of Police may only revoke such a declaration if there is a change to the grounds on which it was made or the person is charged with any class 1 or 2 offences. The Commissioner must give the registrable offender written notice, as soon as practicable, of any declaration or revocation, or variation [ s66D(4)].

Applications can not be made within 12 months of each other by the same registrable offender [s66D(1)(c)].

Applicants can appeal decisions of the Commissioner of Police under this Part to the Administrative and Disciplinary Division of the District Court [s 66E].

Publication of information about registrable offenders

The Commissioner can publish information about registrable offenders where the registrable offender’s whereabouts is unknown and the registrable offender either has failed to comply with reporting obligations or has provided false or misleading information [see ss 66F-H Child Sex Offenders Registration Act 2006 (SA)].

The Act contains prohibitions on inciting animosity or harassing people identified as offenders [s 66I] and prohibitions on the publication of identifying information without written approval from the Minister [s 66J].

Change of name of registrable offender

A registrable offender must obtain the Commissioner of Police’s written permission before registering, or applying to register, to change their name. The maximum penalty for this is $10 000 or imprisonment for 2 years [s 66K].

Information provided to parents or guardian

A registrable offender who stays overnight in a house where there is a child or generally resides in the same household as a child must tell the parent or guardian of that child that they are a registrable offender and what the offence/s were that caused them becoming a registrable offender. The maximum penalty for failing to do this is $25 000 or imprisonment for 5 years [s 66L].

Search powers

Police have extensive powers to search premises of registrable offenders to ensure compliance with the Act. Included in this is the ability to break open and search cupboards etc, search computers and other devices [s 66M]. If a computer or other device requires a password to be inspected, the registrable offender must provide that, maximum penalty, imprisonment for 2 years [s 66M(2)].

Effect of spent convictions

The fact that an offence in respect of which a registrable offender has been found guilty becomes spent does not affect the status of the offence as a registrable offence for the purposes of the Child Sex Offenders Registration Act 2006 (SA) in respect of the registrable offender [s 71].

Paedophile restraint orders

Courts have the power, where appropriate, to make a paedophile restraint order where a person has been found loitering near children; or is required to comply with reporting obligations imposed by Part 3 of the Child Sex Offenders Registration Act 2006 (SA) and either:

  • the person uses the Internet to communicate with children that they have no good reason to communicate with; or
  • the person has been found loitering near children on at least one previous occasion and there is reason to believe the person may, unless restrained, again loiter near children or use the Internet.

    [s 99AA(1) Criminal Procedure Act 1921 (SA)]

In considering whether to make an order the court considers a number of matters such as whether the person's behaviour aroused reasonable apprehension or fear in a child or if the person may act inappropriately towards a child. The court will also consider any prior criminal record, any evidence of sexual dysfunction suffered by the person and any other relevant matters. A child sexual offence relates to a child aged under 16 years and is widely defined to include rape, indecent assault, incest, unlawful sexual intercourse, gross indecency, child prostitution and any offence involving indecency or sexual misbehaviour. It also includes any attempts to commit these offences [s 99AA(3)].

The conditions of a paedophile restraint order can be quite broad and can restrain the person from loitering near children in any circumstances and from using the Internet in a specified manner [s 99AA(2)]. However, generally they are more restrictive, restraining the person from loitering near children in specified places or circumstances.

The procedure to obtain a paedophile restraint order is similar to a general restraining order intervention order [see further s 99AA Criminal Procedure Act 1921 (SA) and the section in this handbook on family violence].

See further the section in this handbook on Child Sexual Assault for information on registration of offenders for other restrictions imposed on child sex offenders.

Tattooing, body modification and body piercing

Part 4 of the Summary Offences Act 1953 (SA) regulates body piercing and body modification such as tattooing:

Except where the tattoo is made for medical reasons and is performed or administrated by a doctor, nurse or dentist, it is an offence to perform a body modification procedure on a person under the age of 18 [s 21R]. It is also an offence to perform such a procedure on an intoxicated person [s 21Q]. However, it is a defence to a charge if the person performing the procedure can prove that at the time of the offence, they actually believed, and had reasonable cause to believe, that the person, for s 21R, was an adult; or for s 21Q, was not intoxicated.

Maximum penalty: $5 000 fine or 12 months imprisonment

Body modification procedure means—

  • tattooing; and
  • body branding; and
  • body implantation; and
  • earlobe stretching; and
  • tongue splitting; and
  • body scarification; and
  • any other procedure prescribed

    [Summary Offences Act 1953 (SA) s 21P]

A person must not sell body modification equipment (for example, ear stretching tapers) to a person under the age of 18 [s 21T].

Maximum penalty: $2 500 fine

A person must not perform any intimate body piercing on a person under the age of 18, or any other body piercing on a person under the age of 16 without first obtaining the consent of the minor’s guardian [s 21R(2)(b)].

Maximum penalty: $5 000 fine or 12 months imprisonment

Consent, referred to above, for under 16 year olds, must be given in person or in writing, in the prescribed form, verified by statutory declaration [s 21S(1)(b)(ii)].

Maximum penalty: $5 000, Expiation fee: $315

Providing false information about age or consent of a minor or guardian is also an offence under the Act [s 21W].

Maximum penalty: $2 500

The Act requires those who offer piercing and body modification services for sale to display prescribed information [s 21U] and to keep records [s 21 V].

Maximum penalty: $1 250, Expiation fee: $160

Prescribed information is set out in the Summary Offences Regulations 2016 (SA).

Alcohol, tobacco and other drugs

Alcohol

If a child is sold or given liquor on licensed premises, both the child and the licensee, the responsible person, and any other person who supplies the child, have committed an offence. Liquor can be supplied at meals in the presence of a child but cannot be served to the child. Children cannot enter or remain on premises where a late night permit or an entertainment venue licence is in place or licensed areas which are declared out of bounds to minors [Liquor Licensing Act 1997 (SA) s 112]. In these situations, a sign should be displayed prohibiting access to minors.

It is illegal for minors to consume alcohol in any public place unless they are with a parent or guardian.

Private Parties

Parents hosting a party for teenagers need to be aware of any insurance and legal implications of serving alcohol to teenagers. At a party in a private house, it is an offence to supply children with alcohol unless the person supplying the adult is a responsible adult or is an authorised adult who has the permission from a responsible adult, and that supply is consistent with the responsible supervision of the child [Liquor Licensing Act 1997 (SA) s 110A(1) , s 110A(4)] . A responsible adult is an adult who is the parent of the child, someone standing in the position or having the responsibilities of a parent, or the spouse or domestic partner of the child [s 110A(1)]. Responsible supervision includes consideration about the age of the child, whether the adult is intoxicated, whether the child is intoxicated, and the quantity and type of alcohol provided [s 110A(5)].

There are now high penalties, $10 000 Maximum Penalty, or a $500 Expiation Notice for this offence if these conditions are not met.

If no parents or responsible adults are present then there can be other long-reaching implications for any consequences that arise as a result of the teenagers’ alcohol consumption. For example, if there is an injury or property damage a lack of supervision will be a factor in establishing negligence. As with any person inviting others onto their property, a duty of care exists for the occupier (host) to take measures to avoid any reasonably foreseeable harm to those invited. With the popularity of social networking gate-crashing of teenage parties has become a new phenomenon and a duty of care can extend to trespassers under s 20(6) of the Civil Liability Act 1936 (SA). Despite not being invited onto the premises, there may still be a duty of care if they are exposed to danger that was reasonably foreseeable and no action was taken by the occupier to avoid it. For this reason it is essential to have a plan in place to deal with emergencies.

See also Gatecrashing - trespassing at private parties and our Young People and Parties factsheet.

Under the Public Intoxication Act 1984 (SA) the police can apprehend anyone (including a child) if they believe he or she is under the influence of alcohol and by reason of that fact is unable to take proper care of themselves. The police can then take him or her home or to a police station or sobering up centre. Where reasonably possible, the parents or guardians of a child who is detained should be contacted and special arrangements should be made to keep the child away from contact with adults who are detained at the same place [ss 6,7].

See further our Alcohol and the Law factsheet.

Tobacco

It is an offence with a fine up to $5000 to sell, lend or give tobacco products to a person under 18 years [Tobacco Products Regulation Act 1997 (SA) s 38A]. A customer who is suspected of being under 18 years old may be requested to show proof of their age [s 39], and it is offence to refuse or give a false statement or identification [s39(2)].

See further our Cigarettes and the Law factsheet.

Other drugs

Under the Controlled Substances Act 1984 (SA) it is an offence to consume, possess, manufacture, sell or supply any controlled (an unlawful) drug. There are many other offences about the use and manufacture of drugs and even synthetic drugs and drug alternatives see more in the section on Drug Offences.

Young offenders are dealt with differently to adults with regards to drug offences and possible sentencing options exist include informal or formal police cautions or Family Conferences (see Young offenders). However, the option of an expiation notice for a simple cannabis possession offence does not apply [s 45A(2)].

Drug offences committed against children are taken very seriously and extremely heavy penalties can apply. The sale, supply or administration of a controlled drug to a child or in a school zone attracts a maximum penalty of $1 000 000 or life imprisonment or both [Controlled Substances Act 1984 (SA) ss 33F and 33G].

See further our Drugs and the Law factsheet.

Gambling

A bet by a child (under 18) or by an adult with a child is an offence under the Lottery and Gaming Act 1936 (SA) [ss 53, 54]. It is also an offence to receive money from a child for the purpose of gambling [s 55].

Children cannot operate poker machines or enter areas where poker machines are operating [Gaming Machines Act 1992 (SA) ss 56-58]. Similar restrictions apply to 'Keno' games in licensed premises.

It is also an offence to sell lottery tickets to children under the age of 18 years, State Lotteries Act 1966 (SA) [s 17B]. However, it is a defence if the ticket seller reasonably believed the child was over 18 years.

See also Cheating at Gambling.

Dishonest communication with a child

It is an offence for a person aged 18 years and over to use deceptive means in order to meet or arrange to meet a child.

A person aged 18 years or over who:

  • knowingly communicates with a child; and
  • makes a false representation that they are younger than they are, or that they are someone other than who they are; and
  • meets or arranges to meet with the child

is guilty of an offence. Maximum penalty: imprisonment for 5 years.

See section 139A(1) of the Criminal Law Consolidation Act 1935 (SA).

Further, a person who engages in the above conduct AND with the intent to commit an offence against the child will be guilty of an offence. Maximum penalty: imprisonment for 10 years [see s 139A(2)].

The definition of a child for these offences is any person under the age of 17 years.

Criminal neglect

Criminal neglect

Where a child (a person under 16 years) or a vulnerable adult dies or suffers harm as a result of an act, the person who, at the time of the act, had a duty of care to the victim, may be charged with an offence under section 14 of the Criminal Law Consolidation Act 1935 (SA).

Vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired through physical disability, cognitive impairment, illness or infirmity [s 13B(1)].

An act includes an omission and a course of conduct [s 13B(1)].

To be guilty of this offence a person would:

  • have to have had a duty of care to the child or vulnerable adult at the time of the act; and
  • been aware, or ought to have been aware, that there was a risk that harm would be caused to the victim by the act; and
  • failed to take reasonable action to protect the victim from harm and the failure was so serious that a criminal penalty is warranted.

See Criminal Law Consolidation Act 1935 (SA) s 14(1).

Harm in these matters means physical or mental harm (whether temporary or permanent) [s 21], and includes detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent) [ss 13B(2) and 13B(3)].

A defendant has a duty of care to the victim if they are the parent or guardian or the victim, or where they have assumed responsibility for the victim's care [s 13B(4)].

The maximum penalty if the child or vulnerable adult dies is imprisonment for life. In any other case the maximum penalty is imprisonment for 15 years [s 14(1)].

This is a lesser charge than murder or manslaughter and may be used in circumstances where it is not clear precisely who is responsible for the death (or harm) of a child. Often in cases involving death or harm to a child (or vulnerable adult) it is clear that at least one of the caregivers was responsible but proving beyond a reasonable doubt that it was one parent/guardian rather than the other, particularly where both accuse one another and where the victim cannot testify, can be extremely difficult. This offence allows for charges to be laid in such circumstances [see s 14(2)]. The emphasis is on the fact that an act has occurred and insufficient protection was provided by the person or persons responsible for the care of the child or vulnerable adult.

Where a defendant is charged under this section in respect of a course of conduct, it is not necessary to prove that the defendant was aware, or ought to have been aware, that harm would be caused to the victim by each act making up the course of conduct [s 14(3)(a)].

Failure to provide food

Section 14A of the Criminal Law Consolidation Act 1935 (SA) provides for an offence where a person fails, without lawful excuse, to provide (and where they are liable to provide) necessary food, clothing or accommodation to a child or vulnerable adult [s 14A]. Maximum penalty for this offence is imprisonment for 3 years.

Weapons

It is an offence for a person to carry an offensive weapon or have possession of a dangerous article without a lawful excuse [see Summary Offences Act 1953 (SA) s 21C]. For more information about weapons offences, see CRIMINAL AND TRAFFIC OFFENCES, Weapons.

Knives

As of 3 February 2012, it is an offence to sell a knife to a minor under the age of 16 years [see Summary Offences Act 1953 (SA) s 21D(1)]. The maximum penalty for this offence is a fine of up to $20 000 or imprisonment for up to two years.

A knife for the purposes of this offence does not include a razor blade permanently enclosed in a cartridge or a disposable plastic or wooden knife used for eating [ See reg 8 Summary Offences Regulations 2016 (SA)].

It is a defence if the person selling the knife requested a prescribed form of evidence of age, such as a driver's licence or proof of age card, and the minor made a false statement or produced false evidence of their age, resulting in the sale [see s 21D(2)].

It is also an offence, as of 3 February 2013, for a person to market a knife to any person for sale or hire in such a way as indicates or suggests (by its name or description) the knife is suitable for combat or is otherwise likely to encourage the use of the knife as a weapon [see Summary Offences Act 1953 (SA) s 21D(4)]. The maximum penalty for this offence is a fine of up to $20 000 or imprisonment for up to two years.

Firearms

Any person who has a firearm in his or her possession without holding an appropriate licence is guilty of an offence under the Firearms Act 2015 (SA) s 9. A person under the age of 18 cannot normally hold a firearms licence [s 14(3)] but some exceptions apply.

A child aged between 12 and 17 years who is a member of a recognised firearms club and needs to hold a firearms licence for competitions held in another state or country, may obtain a category 1 (shooting club) licence for 3 years [Firearms Regulations 2017 (SA) reg 14(7)].

A child aged between 15 and 17 years whose employer or relative is the operator of a business in primary production may obtain and hold a category 5 (primary production) licence for an A or B class firearm, but may not acquire a firearm [reg 18(4)].

Children aged 10 to 14 years may use a registered firearm (category A or air handgun) under the continuous supervision of a guardian (or other person approved by their guardian) who holds an appropriate licence for the purpose for which the firearm is being used [s 8].

Children 14 to 17 years may also use a registered firearm (category A, B or H) under the continuous supervision of a guardian (or other person approved by their guardian) who holds an appropriate licence for the purpose for which the firearm is being used [s 8].

There is also provision for very specific circumstances relating to coaching, sporting and theatrical or film productions [reg 40].

    Offences against children, young people and vulnerable adults  :  Last Revised: Fri Nov 23rd 2018
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