Bills Digest no. 52 2007–08
Crimes Legislation Amendment (Child Sex Tourism Offences
and Related Measures) Bill 2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Disclaimer
Purpose
Background
Financial implications
Main provisions
Conclusion
Endnotes
Contact officer & copyright details
Passage history
-
amend the definition of serious and organised
crime in the Australian Crime Commission Act 2002 to
expressly include the existing child sex carriage service offences
in the Criminal Code (Schedule 1, item 1)
-
amend the Crimes Act 1914 to provide
for the forfeiture of child pornography and child abuse material,
and equipment containing such material, that is used in the
commission of Commonwealth child sex offences (Schedule 1,
item 2, proposed new section 10 to
12B)
-
repeal Part IIIA of the Crimes Act
1914 dealing with child sex tourism and insert these
provisions into the Criminal Code Act 1995 with some
updating of the language and structure of the offences
(Schedule 1, item 9)
-
add a preparatory offence to capture the
behaviour of people who are preparing to commit a child sex tourism
offence (proposed new section 272.17)
-
add new child sex tourism offences to capture
the procuring and grooming of a child for the purposes of child sex
overseas (proposed new sections 272.11 and
272.12)
-
add new offences that would make it illegal for
Australian citizens and residents to possess, control, produce,
distribute or obtain child pornography and/or abuse material while
overseas (proposed new section 273.5 and 273.6),
and
-
make consequential amendments to the
Surveillance Devices Act 2004 (items 17 to
18) and the Telecommunications (Interception and
Access) Act 1979 (items 19 to 23).
When introducing the Bill, the
Attorney-General stated that:
The Australian government is committed to
protecting children from the threat of sexual abuse. The measures
contained in the bill will result in a strengthened child sex
tourism regime and send a strong message to Australians
contemplating such behaviour overseas. The measures also complement
the government s current initiatives with respect to the protection
of Indigenous children in the Northern Territory and the protection
of Australian families online.
[1]
The second reading speech states that
'Australians play a large part in the child sex industry overseas,
particularly in Asian and Pacific countries'. [2] No further details on the scope of
the problem are offered in the Explanatory Memorandum.
'Child sex tourism' is not a term defined in
the Bill but in the common parlance could be defined as travelling
to a foreign country with the intent to engage in sexual activity
with a child under the age of 18. [3] Australian NGO Childwise summarises the situation
of Australians and child sex tourism in the following manner:
-
Thousands of Australians travel overseas to
sexually abuse children.
- Australian child sex offenders have been identified in over 25
countries.
-
Since 1994, 20 Australians have been prosecuted
under the child sex tourism law: 12 convicted, 4 charges dropped
and 4 outstanding.
-
Australians were the first foreigners to be
prosecuted for child sex offences in Thailand, the Philippines,
Fiji, Samoa and East Timor.
-
In recent years approximately 30 Australians
have been prosecuted overseas for child sex crimes.
[4]
Economic difficulties, civil unrest, poverty,
and displacement of refugees all contribute to the growth of this
industry. [5] The
United Nations International Children's Educational Fund (UNICEF)
released a report in 1997 estimating more than 1 million children,
overwhelmingly female, are forced into prostitution every year, the
majority in Asia. [6]
Commonwealth child sex tourism offences are
currently located in Part IIIA of the Crimes Act 1914,
sections 50AA-50GA. The offences were inserted by the Crimes
(Child Sex Tourism) Amendment Act
1994 (no Bills Digest available). Some sections were
amended by the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2001.
Australia signed the Optional Protocol to
the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography on 18 December 2001.
[7] It was ratified
by Australia on 8 January 2007 and entered into force for Australia
on 8 February 2007.
The Mutual Assistance in Criminal Matters
Act 1987 deals with arrangements between Australia and foreign
countries regarding mutual assistance in criminal justice
proceedings. Where there is an agreement between Australia and a
foreign country, Australia may request that evidence be taken in
the foreign country [8] and/or that a consenting foreign prisoner be released
from a foreign country to appear as a witness in relation to
proceedings in Australia. [9]
Once made, mutual assistance agreements are
scheduled in separate regulations under the Act. Regulations
currently exist in relation to Thailand, consistently the centre of
many child sex tourism allegations and several successful
prosecutions. The Attorney-General's Department issued a
publication called Fact Sheet 10 - Extradition
and Mutual Assistance relationships with other countries, which
contains a full list of agreements between Australia and other
nations. [10]
One of the key features of legal measures
designed to combat child sex tourism is that the measures must have
extraterritorial application. In other words, Australians can be
prosecuted for their conduct outside Australian territory, instead
of under the laws of the country in which they have committed the
offence (for example, the Bali 9). Part 2.7 of the Criminal
Code establishes common principles governing geographical
jurisdiction. It describes a 'standard geographical jurisdiction',
in which the conduct or a result of the conduct occurs or is
intended to occur wholly or partly in Australia. It also describes
different categories of 'extended geographical jurisdiction' for
cases in which the conduct or results occur overseas, and:
-
the person is an Australian citizen ('category
A')
- the person is an Australian citizen and/or a resident of
Australia ('category B')
-
the jurisdiction is unrestricted, subject to a
'foreign law defence' ('category C'), or
-
the jurisdiction is completely unrestricted
('category D').
The standard geographical jurisdiction applies
to all Commonwealth offences unless a contrary intention appears.
The extended categories apply by specific reference, subject to the
Attorney-General's consent.
Proposed Division 272 would
introduce new sex offences against children overseas. Under this
Division, prosecutions can be undertaken against Australian
citizens ('category A'), residents of Australia ('category B'), a
body corporate under Australian law, and a body corporate that
carries out their activities principally in Australia.
The link to Australian criminal jurisdiction
is the nationality of the offender. Child sex tourism therefore
stands as an exception to the general principle of 'international
comity', which was originally proposed as a theory of criminal
jurisdiction. In Treacy, the theory was stated in these
terms: 'each sovereign state should refrain from punishing persons
for their conduct within the territory of another sovereign state
where that conduct has no harmful consequences within the territory
of the state which imposes the punishment. [11] However, even as an exception,
prosecutions and investigations of extraterritorial offences such
as these, especially involving children, are extremely
difficult.
The second reading speech states that there
have been fifteen successful prosecutions of child sex tourism
offences since their inception in July 1994. [12]
On 8 May 2007, the Federal Government renewed
its commitment to combating
Child Sex Tourism and Human Trafficking offences with funding
extended to the AFP over a further four years. [13] There is some further detail
available in the latest AFP Annual Report:
The AFP is a leading law-enforcement agency in
international efforts to combat sexual offences against children.
Through its International Network, the AFP has contributed
significantly to child sex-offences investigations. Australia has
signed a number of memorandums of understanding (MOUs) with
countries in Asia, the Pacific and South America to facilitate
efforts combating child sex offences. Through these MOUs,
international cooperation, information exchange and
capacity-building programs have enhanced efforts to identify and
investigate those involved in the sexual exploitation of children.
The AFP also supports local law enforcement efforts by providing
investigative assistance, forensic support, computer forensics and
international liaison.
Current analysis indicates that Australian child sex offenders
are almost exclusively male and travel to locations where they are
able to take advantage of socioeconomic factors and lower
law-enforcement capacity to exploit children sexually. Developing
countries have been targeted, with Thailand, Cambodia and the
Philippines being prominent. The AFP is actively assisting with law
enforcement capacity-building in these countries and, as the
efforts in countering this crime type increase, offenders are
likely to travel to other places to exploit children sexually.
At the end of the reporting period the AFP was
conducting 57 investigations into extra-territorial child sex
offences with 11 matters before the courts or having prosecution
briefs prepared.
[14]
In June 2000, the Australian Institute of
Criminology published a Trends and Issues paper on Child Sex
Tourism, which gave details of the first four
prosecutions, between 1996 and 1998. [15] One of the first successful
prosecutions took place in Perth in May 1999, when John Arthur Lee
(aged 45) was found guilty of one count of sexual intercourse with
a girl under 16, and eight counts of indecently dealing with
underage girls while overseas in 1997. He was sentenced to 14 years
with a non-parole period of six years and eight months. [16]
|
Lee
This case is one
of the first involving offences against the child sex tourism
provisions in the Crimes Act 1914. The defendant was convicted on
nine counts of sex tourism and 15 counts under WA law of possessing
obscene material. He was sentenced to 14 years in jail with a
non-parole period of six years and eight months. He has appealed
against sentence.
In 1997 the
defendant returned to Australia from a holiday in Cambodia bringing
photographs which showed him engaged in sexual acts with young
women. He brought the photos into Australia hidden in an album
underneath innocuous photographs, but he subsequently showed some
of the photos to workmates. The matter was reported to the WA
Police who conducted an investigation with cooperation from the
AFP.
The case posed a
challenge to the investigators because they were not able to
identify any of the young women in the photos and because the
defendant s face did not appear in them. They were able to
establish where the offences were committed by locating the hotel
rooms shown in the photographs. The prosecution relied on the
photographs and on expert evidence from a paediatric
endocrinologist to establish that the women in the photos were
under-age. The prosecution also relied on evidence from a forensic
pathologist to establish that limbs and other body parts shown in
the photographs belonged to the defendant. The investigators were
also able to blow up a photograph which showed the defendant s
fingers and obtain fingerprint details using computer enhancement
techniques.
|
In March 2004, Gregory Roy Cook (aged 51) was
sentenced in Sydney to 18 months gaol for sexually assaulting an
eight year old girl in Vietnam, an offence committed in Danang in
July 2003. At that time, Senator Ellison, Minister for Justice,
noted that 13 Australians had been charged in relation to
paedophilia activities overseas. [17] In August 2005, he noted that a further 13 had
been convicted overseas with the help of Australian authorities.
[18] An April 2005
newspaper article noted that there had also been four
unsuccessful prosecutions. [19]
Details of successful prosecutions can be
found in the Annual Reports of the Commonwealth Director of
Prosecutions. In the latest report, there is a description of the
first successful prosecution for 'grooming' offences, the subject
of reform in this Bill.
|
John Douglas
Holmes
John Holmes was one of the first people prosecuted
in Australia under new provisions of the Criminal Code prohibiting
the grooming of children for sexual purposes. Holmes was also
charged with offences of importing child pornography, possessing
child pornography and using a carriage service to disseminate child
pornography.
In September 2005, the AFP received information
from the Queensland Police Service about an online paedophile
network. Police intercepted an email from Holmes email address
which contained images of child pornography.
On 3 September 2005, Holmes travelled to the
Philippines in the course of his employment, and returned carrying
several images of child pornography in his luggage. Police executed
a search warrant on Holmes premises and found numerous images of
child pornography on floppy disks and on a home computer. The
computer was seized and subsequently examined.
The examination identified numerous chat logs of a
sexually explicit nature between Holmes and a person he believed to
be an 11 year old girl living in the United Kingdom. This person
was in fact an adult male. The chat logs also revealed that Holmes
attempted to meet up with this person in London for the purposes of
having sex. The conversations between Holmes and this person
constituted the grooming offence.
Holmes pleaded guilty, and was sentenced on 19 May
2006. For possessing child pornography, he received a sentence of
one year and eight months imprisonment, to serve one year and two
months of that term. For using a carriage service to transmit child
pornography, he was sentenced to two years imprisonment, with
non-parole period of one year and four months.
For importing the child pornography, he was
sentenced to a good behaviour bond for four years. For the grooming
offence, he was sentenced to two years and nine months
imprisonment, with non-parole period of one year and eight
months.
Action has been taken to forfeit the computer
equipment used in the offences to the Commonwealth under proceeds
of crime legislation.
|
-
Karen D
Breckenridge, 'Justice beyond borders: a comparison of Australian
and U.S. child-sex tourism laws', Pacific Rim Law and Policy
Journal 13 (2) April 2004, pp. 405-438.
-
Marianna
Brungs, 'Abolishing child sex tourism: Australia's contribution',
[2002] Australian Journal of Human Rights, Vol. 17.
-
Fiona
David, 'Child Sex Tourism', Trends and issues in crime and
criminal justice series no. 156, Australian Institute of
Criminology, June 2000.
-
-
C.
Penfold, Child pornography laws: the luck of the locale ,
Alternative Law Journal, vol. 30, June 2005, pp. 123-5,
140.
-
Naomi L.
Svensson, 'Extraterritorial Accountability: An assessment of the
effectiveness of child sex tourism laws', Loyola L.A.
International and Comparative Law Review, 28, 2006, pp.
641-664.
The Explanatory Memorandum claims there will
be no financial implications as a result of this Bill. However, As
noted above, the AFP have received an additional $9.1 million over
four years to 'substantially boost the capacity of the AFP
Transnational Sexual Exploitation and Trafficking Team (TSETT) for
assessing and investigating all forms of international trafficking
offences, including child sex tourism'. [20]
Back to top
Schedule 1, item 1 would amend
the definition of serious and organised crime in the Australian
Crime Commission Act 2002 to expressly include the existing
child sex carriage service offences in the Criminal Code. This
codifies in the ACC Act itself changes that were made by regulation
in December 2006.
Schedule 2 of the Families, Community Services
and Indigenous Affairs and Other Legislation Amendment (Northern
Territory National Emergency Response and Other Measures) Bill 2007
(part of the NT Bills package) recently amended the definition of
'serious and organised crime' to include Indigenous violence or
child abuse. [21]
Schedule 1, item 2,
proposed new section 10 to 12B would amend the
Crimes Act 1914 to provide for the forfeiture of child
pornography and child abuse material, and equipment containing such
material, that is used in the commission of Commonwealth child sex
offences. At the moment, the AFP must rely on proceeds on crime
legislation, as noted in the extract of the case of John Douglas
Holmes, above.
Schedule 1, item 9 would
repeal Part IIIA of the Crimes Act 1914 dealing with child
sex tourism and insert these provisions into the Criminal Code
Act 1995 with some updating of the language and structure of
the existing offences, plus the addition of new offences as
discussed below. The Explanatory Memorandum provides a useful table
of the existing provisions in the Crimes Act and the equivalent
provisions introduced by this Bill in the Criminal Code. [22]
This is part of a long term drafting project,
explained in detail by Jennifer Norberry in Bills
Digest No. 92, 2000-01 of the Environment and Heritage
Legislation Amendment (Application of Criminal Code) Bill 2000.
In 2004, the Commonwealth Government made a
range of amendments to crimes legislation, dealing with child sex
offences, in particular the procurement and grooming of children,
and also the use of carriage services in child sex offence
activities.
To some extent the introduction of the
Commonwealth Internet procuring and grooming offences has overtaken
the need for parallel reforms in the States. In the absence of a
specific NSW online grooming offence, NSW Police can (and does)
refer cases to the Commonwealth Director of Public Prosecutions.
[23]
The amendments to proposed section
272.11 and 272.12 reflect current laws dealing with the
offences of procuring and grooming children for sex offences
domestically. While the Criminal Code already deals with these
offences as they occur in Australia, the proposed laws extend the
Criminal Code to capture the same offences, where they might occur
outside of Australia.
Proposed section 272.11
creates a new offence for a person to engage in conduct to procure
a second person (who is either under 16, or the first person
believes they are under 16 - the 'child') for sexual activity
outside Australia. The definition of
procure is to encourage, entice, or
recruit a person, or to induce the person (whether by threats,
promises or otherwise) for sexual activity. The definition of
sexual activity is an exhaustive
definition including sexual intercourse, acts of indecency or any
other activity of a sexual or indecent nature that involves the
human body, or bodily actions or functions (whether or not that
activity involves physical contact between people). [24]
The procurement offence applies to a range of
activities including committing acts of indecency, submitting to
acts of indecency committed by a third person and engaging in
sexual activity in front of a child. The Explanatory Memorandum
provides a number of examples of prohibited conduct, to demonstrate
the breadth of coverage of the new offences over a wide range of
possible activities.
Aspects of the procurement offence to note
are:
-
actual successful procurement of a victim is
not required for the offence; an offending person is captured by
the provision if they simply engage in conduct to encourage,
entice, recruit or induce a child for sexual activity. In addition
to this, the potential for successful procurement is also not
required for the offence subsection 272.11 (4)
states that a person may be found guilty, even if it is impossible
for the procurement to take place
-
subsection 272.11(5) clarifies
that the offence does not require that the child actually exist.
This provision captures investigations where law enforcement
officers assume false identities to catch potential offenders
[25]
-
the offending conduct can take place in a range
of geographical circumstances, including:
-
where the defendant is in Australia, and the
child is overseas
-
where the defendant is overseas, and the
child is overseas
-
where both the defendant and child are in
Australia
[26]
-
the proposed offences are modelled on existing
offences in section 472.26 of the Criminal Code, dealing with the
use of carriage service to procure a person under 16 for sexual
activity
[27]
-
a maximum penalty of 15 years
imprisonment
-
absolute liability
[28] applies to the location of the
conduct, and the fact that the person is under 16. Therefore, a
prosecution need only prove that conduct occurred outside Australia
and/or that the child is a person under 16 years of age. Intent, or
recklessness to these facts, need not be shown by the prosecution.
However, a defence based on belief about the child s age is
available (see discussion with respect to
proposed
subsection 272.13(2) on page 13).
Proposed section 272.12
creates the offence of 'grooming' a child for child sex tourism.
The concept of child 'grooming' was first introduced into the
Criminal Code in 2004, when the Government created an offence for
grooming of children domestically. In the Explanatory Memorandum
for the 2004 Bill, the Government described the new grooming
offences as:
Targeting adult offenders who exploit the
anonymity of telecommunications services (for example, the
Internet) to win the trust of a child as a first step towards the
future sexual abuse of that child. The practice is known as online
grooming .
[29]
The proposed tourism offences are modelled on
those existing offences. [30] However, unlike the domestic offences, the proposed
offences are not limited to conduct which involves the use of a
carriage service. [31] The proposed new offences in section
272.12 capture conduct (regardless of use of a carriage
service) which a person engages in which makes it easier to either
procure a child for sexual activity outside of Australia (either
with the offender or a third person), or procure a child to be
present during sexual activity outside Australia. The purpose of
the provision is explained further by the Explanatory
Memorandum:
Grooming can include a range of conduct that
makes it easier to procure a person for sexual activity including
through building trust with a person under 16 and taking steps to
desensitise the person to the thought of engaging in sexual
activity with adults. For example the person may expose the person
under 16 to pornographic images or encourage romantic feelings in
them.
[32]
Aspects of the grooming offence to note
are:
Both the procurement and grooming offences are
subject to a defence based on belief about age, set out in
proposed subsection 272.13(2). The defence applies
if the person believed that the child was 16 or over at the time of
the conduct constituting the offence. This defence may be subject
to a test of reasonableness by a jury (proposed subsection)
272.13(3)). Proposed subsection 272.14(2)
also provides a defence based on valid and genuine marriage.
Proposed Subdivision C deals
with offences of benefiting from, encouraging or preparing to
commit sexual offences against children overseas.
Proposed section 272.17 is a new offence,
designed to 'capture the behaviour of people who are preparing to
commit a child sex offence' [34] against proposed sections 272.7 to 272.10 and
section 272.15 dealing with having or inducing or benefiting from
sexual intercourse or sexual conduct with a child under 16
overseas. The Explanatory Memorandum explains that the section
would prevent harm occurring to a child, as well as allowing for
arrests within Australia.
The inclusion of an offence of this kind would
enable the client to be arrested prior to a person under 16 being
harmed. The offence of engaging in preparatory acts applies both
inside and outside Australia.
The preparatory offences address a gap in the coverage of the
existing child sex tourism offences. Currently, sections 50DA
(proposed section 272.15) and 50DB (proposed section 272.16) of the
Crimes Act prohibit a person from benefiting from or encouraging
conduct which would amount to a child sex tourism offence being
committed overseas. These offences are targeted at child sex tour
operators rather than the child sex client. There is nothing in the
current offence provisions which clearly prohibits any preliminary
steps being taken by a person who wishes to participate in a child
sex tour. [35]
The maximum penalty for this offence is 15
years or 17 years imprisonment. This proposed provision
criminalises an act in preparation for, or planning conduct of a
kind which would constitute an offence under the other substantive
provisions. The intent required to constitute the offence is not
clear in the drafting of the section. The note to the section reads
as follows:
Note: An example of an act that would constitute
an offence against subsection (1) is booking an airline ticket to
travel outside Australia in preparation for engaging in sexual
intercourse with a person who is under 16 while outside
Australia.
The note seems to present immediate
evidentiary problems. The intent required becomes less clear when
subsection 3 is taken into account:
(3) A person commits an offence under subsection (1) or (2) even
if:
(a) conduct of a kind that would constitute the offence referred
to in that subsection does not occur; or
(b) the person s act is not done in preparation for, or
planning, specific conduct of a kind that would constitute the
offence referred to in that subsection; or
(c) the person s act is done in preparation for,
or planning, more than one course of conduct of a kind that would
constitute the offence referred to in that subsection.
Comparable preparatory offences in the
counter-terrorism area have been criticised for not providing
sufficient certainty when defining criminal behaviour. For example,
in relation to Part 5.3, Divisions 101, 102 and 103 of the
Criminal Code 1995, the Gilbert and Tobin Centre for
Public Law raised with the Security Legislation Review the
following concerns about the 'width' of preparatory offences:
Assuming that change was necessary in order to have such an
effect, these provisions now expressly have the effect of
criminalising people for conduct committed before any specific
criminal intent has formed. While preparatory conduct should
certainly constitute an offence, two key objections may be raised
to an attempt to provide for this in the absence of an intention to
pursue a sufficiently detailed plan.
First, this is contrary to ordinary principles of criminal
responsibility, since people who think in a preliminary or
provisional way about committing crimes may always change their
mind and not implement their plans. This amendment allows a person
to be prosecuted before a genuine criminal intention has taken
shape.
Second (and once more, we acknowledge that this assertion will
benefit from seeing what transpires in the courts in respect of
recent arrests), as a matter of the practicality of securing a
criminal conviction, the width of the offences as amended seems
hardly helpful. Indeed it might be said to encourage authorities to
act precipitately. Of course, with delay may lie danger, but to
arrest persons on the basis of activities or possessions which
cannot, at that point in time, be connected to any specific
terrorist act risks failure in convincing the courts that a crime
was in fact being prepared. It also, by corollary, might be said to
expose a range of innocent activities to criminal sanction by
casting the net so very wide. [36]
New Division 273 creates
offences for Australians to possess, control, produce, distribute
or obtain child pornography and/or abuse material while overseas.
This includes Australian citizens, Australian residents, and any
body corporate that is incorporated in Australia, or carries on
activities principally in Australia (section
273.2). The Bill includes a saving provision for other
State, Territory or Commonwealth laws (section
273.4). [37]
The Bill includes a provision clarifying the
position of double jeopardy that is, a person convicted or
acquitted of an offence for conduct in another country, cannot be
subsequently convicted with respect of that conduct in Australia.
The Explanatory Memorandum explains that the purpose of the new
division is:
To allow prosecution, under Australian law, of
Australians who engage in such conduct overseas, in practice to
deal with circumstances where the foreign country does not have
specific laws to deal with this behaviour or is unwilling to unable
to prosecute.
[38]
The situation described in the Explanatory
Memorandum is not the usual meaning given to double jeopardy rules.
The person would not face prosecution twice for the same offence.
Rather, the provision is to fill any legal vacuums that would allow
a person not to be prosecuted at all.
Proposed sections 273.5 and
273.6 create offences for dealing with child pornography
material and child abuse material respectively. The offences draw
on definitions of child pornography
material and child abuse
material currently being used in the Criminal Code.
[39] The proposed
offences capture people who:
-
have possession or control of such
material
-
produce, distribute or obtain such material;
or
-
facilitate the production or distribution of
such material outside of Australia.
Both offences carry maximum penalties of 10 years
imprisonments and absolute liability applies to circumstances where
the conduct occurs outside Australia (sections 273.5(2) and
273.6(2)). [40] Of the use of absolute liability, the explanatory
memorandum states that:
The application of absolute liability is
appropriate because the issue of whether the person intended to
engage in the conduct in Australia or overseas is not central to
their culpability. It is appropriate to penalise a person for such
conduct irrespective of their knowledge or intention as to where
the conduct occurs.
[41]
The Bill provides a range of defences to the
offences in this provision, such as where the conduct was engaged
for the purposes of:
-
public benefits, such as law enforcement,
monitoring, administration or research (subsections
273.7(2)(a) to (d))
-
the duties of law enforcement, intelligence or
security officers (subsection 273.7(4))
-
detecting prohibited content by the Australian
Communications and Media Authority (subsection
273.7(5))
[1]. The Hon. Philip
Ruddock MP, Attorney-General, House of Representatives,
Debates, 13 September 2007, p. 4.
[2]. The Hon. Philip
Ruddock MP, op. cit., p. 2.
[3]. Although the criminal provisions in this Bill deal with
activities relating to children under the age of 16.
[5]. Eva J. Klain.
Prostitution of Children and Child-Sex Tourism: An Analysis of
Domestic and International Responses. Alexandria, Virginia:
National Center for Missing & Exploited Children, 1999, p.
33.
[10].
Attorney-General's Department, Fact Sheet 10 - Extradition and
Mutual Assistance relationships with other countries, online:
www.ag.gov.au/extraditionandma,
accessed 17 September 2007.
[11].
Treacy [1971] AC 537, per Diplock LJ, at p. 564.
[12]. The Hon.
Philip Ruddock MP, op. cit., p. 2.
[14]. Australian
Federal Police, Annual Report 2005-2006, p. 36.
[16]. Commonwealth
Director of Prosecutions, Annual Report 1998 99, p.
52.
[21]. See further
Sue Harris Rimmer, Bronwen Jaggers, Diane Spooner, Kirsty Magarey,
and Mary Anne Neilsen and John Gardiner-Garden, 'Families,
Community Services and Indigenous Affairs and Other Legislation
Amendment (Northern Territory National Emergency Response and Other
Measures) Bill 2007', Bills
Digest no. 21 2007 08, 13 August 2007, p. 17.
[22]. Explanatory
Memorandum, p. 7.
[24]. The
definitions of procure and sexual activity, which are currently set
out in subsection 472.28(11) of the Criminal Code, are relocated to
the dictionary of the Code under items 12, 14 and 15 of Schedule 1
of the Bill.
[25]. Explanatory Memorandum, p. 13.
[26]. Explanatory Memorandum, p. 13.
[27]. Explanatory Memorandum, p. 12.
[28]. Absolute liability removes the need for prosecution to
show intent.
[29]. Explanatory
Memorandum, Crimes Legislation Amendment (Telecommunications
Offences and Other Measures) Bill 2004, p. 44.
[30]. Section
472.27 of the Criminal Code.
[31]. Explanatory
Memorandum, p. 14. 'Carriage service', as defined by the
Telecommunications Act 1997, means a service for carrying
communications by means of guided and/or unguided electromagnetic
energy.
[32]. Explanatory
Memorandum, p. 14.
[33]. Explanatory
Memorandum, p. 15.
[34]. Explanatory
Memorandum, p. 16.
[37]. State and
Territory provisions relating to possession etc of child
pornography include the following provisions: Australian Capital
Territory Crimes Act 1900 sections 64, 64A and 65; New
South Wales Crimes Act 1900 section 91H; Northern
Territory Criminal Code Act 1983 Schedule 1, section 125B;
Queensland Criminal Code 1899 sections 228A, 228B, 228C
and 228D; South Australia Criminal Law Consolidation Act
1935 sections 63 and 63A; Tasmania Criminal Code Act
1924 sections 130 and 130A-D, and the Classification
(Publications, Films and Computer Games) Enforcement Act 1995
section 74; Victoria Crimes Act 1958 sections 68, 69 and
70; Western Australia Classification (Publications Films and
Computer Games) Enforcement Act 1996, section 60.
[38]. Explanatory
memorandum, p. 21.
[39]. Child
pornography material is defined at section 473.1 of the Criminal
Code to include material that depicts or describes a child engaged
in sexual activity in a way that reasonable persons would regards
as being, in all the circumstances, offensive. Child abuse material
is defined at section 473.1 of the Code to include material that
depicts or describes a child who is the victim of torture, cruelty
or physical abuse in a way that reasonable persons would regard as
being, in all circumstances, offensive.
[40]. Therefore, a
prosecution does not need to prove a person s intention, or
recklessness, to the occurrence of the conduct outside Australia;
it only needs to prove that the prohibited conduct occurred outside
Australia.
[41]. Explanatory
memorandum, p. 23.
Sue Harris Rimmer, PaoYi Tan and Roy Jordan
Law and Bills Digest Section
18 September 2007
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