‘Draconian’ child sex offender laws ‘will result in injustice’: Lawyers speak up

New laws proposed this week by the Malinauskas government to indefinitely detain repeat child sex offenders are a “dangerous breach of the separation of powers” according to one of the nation’s top lawyers.

Jan 25, 2024, updated Jan 25, 2024
Photo: Shutterstock.

Photo: Shutterstock.

Introduced earlier this week, and described by Premier Peter Malinauskas as “the most draconian laws of their type anywhere in the country”, the proposed amendments to the Sentencing Act 2017 would ensure repeat child sex offenders are automatically sentenced to indefinite detention.

The proposal also contemplates lifetime electronic monitoring for paedophiles that successfully convince a court they can control their sexual urges and can therefore be released back into society.

But the national criminal justice spokesperson for the Australian Lawyers Alliance (ALA), Greg Barns SC, said the laws were developed without consultation with the legal community and would result in injustice.

Greg Barns SC

“These new laws will result in injustice and are a dangerous breach of the separation of powers by interfering with judicial discretion,” said Barns, who is the former national president of the ALA and is an advocate for Australia adopting a Bill of Rights.

“Importantly there is no evidence to suggest such laws will reduce offending.”

He said the proposed laws “fail to consider the unique factors in each case”.

“They might, for example, mean that young people are locked up for life. They might mean that a court dealing with an offender who has committed offences many years ago but who is now fully rehabilitated will not be able to take that into account,” Barns said.

“The laws represent a dangerous attack on the separation of powers. In our system of democracy, it is the courts that adjudicate cases and determine and impose appropriate sentences.”

Ultimately, the Senior Counsel said the laws would act in a way to restrict the discretion of the courts, undermining the rule of law and the “integrity of the legal system”.

The ALA added it anticipated there would be more not-guilty pleas, and victims would be “subjected to the trauma of a trial”, if the proposed laws come to pass.

“There is no evidence that such draconian laws will reduce offending. All around the world, governments’ so-called ‘tough on crime’ sentencing initiatives have been shown to have zero impact as a deterrent,” he said.

“Electronic monitoring and detention for life are expensive. Evidence shows that offending reduces as people age. What is the point of electronic monitoring of an infirm 80-year-old?”

Law Society of SA president Alex Lazarevich said his organisation would need to see the full detail of the proposed laws before being able to make detailed comments, but that the topic “deserves full and close attention”.

Law Society of SA president Alex Lazarevich

“It is crucial that extensive consultation takes place to ensure proposed laws do not give rise to unintended consequences or run the risk of being challenged in the Courts,” he said.

“Rushing legislation through Parliament, particularly legislation that removes discretion from the courts and confers greater decision-making power to the Government, can increase the potential for oversights that can at best create confusion and at worst undermine the stated purpose of a reform.

“Aspects of the Bill will require thorough consideration to ensure they do not result in arbitrary outcomes, noting the proposal does have the effect of potentially subjecting a person to indefinite detention, or at the least, lifetime electronic monitoring.”

Young people and people with disabilities may also be “undeservingly captured” by the new laws, Lazarevich said.

“Child sex offences can range from heinous acts of cruelty to honest mistakes made by young people unaware that sexting or a being engaging in a sexual relationship at a young age could fall foul of child sexual offence laws,” he said.

“There have been identifiable cases of people, particularly young people and people with intellectual disabilities, being unwittingly or undeservingly captured by the current regime.

“We need to make sure that the proposed laws do not subject such people to potentially lifelong punishment or draconian conditions.”

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