Bills Digest no. 140 2009–10
Crimes Legislation Amendment (Sexual Offences Against
Children) Bill 2010
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
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Crimes Legislation Amendment (Sexual
Offences Against Children) Bill 2010
Date introduced: 4 February 2010
House: House
of Representatives
Portfolio: Home Affairs
Commencement: The day after Royal Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends the
Australian Crime Commission Act 2002, the Crimes Act
1914, the Criminal Code Act 1995, the
Surveillance Devices Act 2004 and the
Telecommunications (Interception and Access) Act 1979.
The Bill will:
- amend existing offences relating to child sex tourism as well
as introduce new offences for dealing in child pornography and
child abuse material overseas.
- introduce new offences for using a postal service for child
sex-related activity as well as enhancing the coverage of offences
for using a carriage service for sexual activity with a child, or
for the supply and distribution of child pornography or child abuse
material.
A new scheme is also introduced in this Bill to
provide for the forfeiture of child pornography, child abuse
material and items containing such material.
The Bill will make minor consequential amendments
to ensure existing law enforcement powers continue to facilitate
the prosecution of Commonwealth child sex-related offences.
Since the enactment of the child sex
tourism offences in 1994, 30 prosecutions have been commenced, with
a total of 19 convictions obtained.[1] The Australian Institute of Criminology
has noted that:
it is not known whether child sex tourism
legislation has any real deterrent effect on Australians determined
to have sex with children overseas, but there have been several
successful prosecutions for such offences that would previously
have been beyond the reach of Australian law.[2]
While the number of convictions is not significantly high,
Australia’s law in this context has been applauded
internationally. For example in their reviews of sexual offence
frameworks, the United Kingdom and Scotland referred to the
Australian reforms and Australian views on best practice. Further,
‘that Australia’s laws have been used to guide reform
internationally indicates that Australian practice is at a minimum
on par with, and in some cases goes beyond, international
practice’.[3]
The constitutional validity of the regime has also been tested,
and upheld, by the High Court. In XYZ v
Commonwealth[4], the High Court held that the provisions were
supported by section 51(xxix) of the Constitution (which allows the
Commonwealth Parliament to make laws with respect to
‘external affairs’), being laws which apply
extraterritorially and which implement Australia’s
international treaty obligations under the Convention on the Rights
of the Child.[5]
In 2005, amendments were made to the Criminal Code to prohibit
using a carriage service (meaning telephone, Internet etc.) for
sexual activity with children. Offences were also introduced to
prohibit using a carriage service for child pornography and child
abuse material. Possessing, producing, supplying or obtaining such
material is also an offence. The policy reason behind these
offences is that the anonymity of the Internet is exposing a large
of number of children to being sexually abused. Further:
there are links between the possession of child
pornography and the commission of sexual offences against children.
It is not necessarily the case that every person in possession of
child pornography is also involved in sexually abusing children.
There is also a lack of empirical research in this area. However,
there is widespread support for the view that it is likely that the
two may be connected.[6]
The creation, distribution and possession of
child pornography and child abuse material fuels demand, and
increases the market for the sexual and other exploitation of
children. The production of child pornography requires a child to
be victimised: sexual and other offences are often committed
against real children in order to create photographic and video
images of child pornography and child abuse activity. Creators of
child pornography may travel overseas in order to exploit children
in countries where there are inadequate child sex-related
offences.[7]
While the existing laws are capturing the intended conduct, the
Rudd Government sees a need to improve the effectiveness and scope
of the offences:
This Government is committed to taking all
necessary action to prevent harm to children from occurring both in
Australia and overseas. The sexual exploitation of children is
devastating to the children involved, their families, and their
communities.
We have a duty to ensure that with overseas
travel commonplace, and the internet making information about
destinations more accessible, Commonwealth laws provide a
significant deterrent to abuse and a sound basis for prosecuting
offenders.
Equally, rapidly changing technologies and the
anonymity that the internet provides have resulted in unprecedented
opportunities for child sex offenders. Our laws need to keep pace
with the speed of technological change.[8]
This Bill is enhancing existing laws to achieve greater coverage
of child sexual offences as well as to increase the penalties of
some of the existing offences. It would be virtually impossible to
argue against the Bill when the goal of protecting children from
any harm, or potential harm, is a universal one. However, some
provisions may attract particular attention for being unusually
oppressive regarding the defendant and are inconsistent with the
usual drafting rules for offences in the Criminal Code. As will be
discussed throughout this Digest, the Attorney-General’s
Department has provided extensive and thorough justification for
the application of absolute liability to these types of
offences.
The Bill was referred to
the Senate Legal and Constitutional Affairs Committee for inquiry
and reported on 18 March 2010. Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/legcon_ctte/crimessexualoffences/index.htm
The Committee made one technical recommendation and that was to
amend the Bill to provide that:
consistent with the proposed approach under
Division 272, a proceeding for an offence under Division 273 of the
Criminal Code Act 1995 (relating to child pornography and
child abuse material offences) must not be commenced without the
consent of the Attorney-General, if the defendant was under 18
years of age at the time he or she allegedly committed the
offence.[9]
The Explanatory Memorandum notes that the amendments made by
this Bill will have no financial impact on Government
revenue.[10]
The Senate Committee on Legal and Constitutional Affairs
received 8 submissions to its inquiry into this Bill. Those
submissions were generally supportive of the Bill. However, there
was an overarching unease that the provisions had the potential to
capture unintended conduct. For example, the Law Council of
Australia (LCA) is opposed to the introduction of the preparatory
offence (proposed section 272.20)[11] in its current form and
recommended that the offence be narrowly defined ‘so that it
only captures conduct of … [a] more advanced and direct
nature’:
In that way, the likelihood of innocent
and legitimate conduct erroneously becoming the subject
of charge and prosecution would be decreased. Likewise, the
likelihood of malevolent but nascent private intentions, which are
yet to result in any harm and are still several significant steps
from being realised, would also be avoided.[12]
Similarly, the LCA had the view that the offence of causing a
child to engage in sexual activity (proposed section
272.9) drafted in its current form may capture
‘innocent, everyday sexual relations between consenting
adults that happen to be observed by children.’[13]
The practice of what is termed ‘sexting’[14] was also flagged as
possible conduct that may be unintentionally captured by these
offences. The apparent generality of drafting in proposed
section 474.27A was specified as a section that may
capture conduct of an 18 year old and a 15 year exchanging nude or
otherwise sexual pictures over the internet or mobile phone, ie.
sexting. The Australian Privacy Foundation:
acknowledged that the prosecution of young
people in relation to such offences would depend on the discretion
of police and prosecuting authorities [but] preferred an approach
that relies on the availability of appropriate defences or
definitions to ensure that sexting is not capture by child sex
offences. In this way young people would not have to rely on
discretionary decisions to otherwise avoid prosecution for very
serious offences.[15]
The Senate Committee agreed that young people engaged in such
behaviour should not be exposed to the grave consequences and
stigma that attach to allegations of, and convictions for, child
sexual offences.[16] The Committee therefore recommended that the discretion
of the Attorney-General be extended to prosecution of people under
18 years of age for child sex offences:
This would mean that a young person could not
be prosecuted for an offence under Division 272 (as already
proposed) or Division 273, without the consent of the
Attorney-General. The committee is of the view that the extension
of this safeguard may ensure that behaviour which is not
exploitative of, or harmful to, children is not captured by the
child sex offence regime (particularly where that behaviour
involves children themselves).[17]
The offence provisions in the Bill apply absolute liability to
some elements of the offence. The Explanatory Memorandum outlines
the justification for applying absolute liability in each case. For
example:
Absolute liability is appropriate and required
for the element of the offences that the sexual intercourse was
engaged in outside Australia because this element is a
jurisdictional element of the offence. A jurisdictional element of
the offence is an element that does not relate to the substance of
the offence, but marks a jurisdictional boundary between matters
that fall within the legislative power of the Commonwealth and
those that do not. The issue of whether the person intended to
engage in the conduct in Australia or overseas is not relevant to
their culpability. This is consistent with Commonwealth criminal
law practice, as described in the Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.[18]
A further example of applying absolute liability to some of the
offences is under proposed subparagraph
272.10(1)(b)(i) (that the child had a mental impairment).
With no fault element needing to be proven by the prosecution and
the defence of mistake of fact not being available the only element
the prosecution needs to prove is the fact that the child had a
mental impairment. While this is a significant burden on the
defendant, a specific defence based on a belief that the child did
not have a mental impairment is inserted into the Bill to balance
the provision.
If the offences in the Bill applied strict liability rather than
absolute liability, it would not be necessary to have such specific
defences drafted alongside the offences. The drafting of the Bill
is a little unconventional yet is justified by the nature of the
conduct and the seriousness of the offences. The Senate Legal and
Constitutional Affairs Committee agreed yet sought to ensure that
prosecutions for these offences are not brought in inappropriate
circumstances. In recommending that the Attorney-General’s
consent be required to prosecute, the provisions in this Bill will
join a small number of existing Acts that provide that a
prosecution for an offence under the Act cannot be commenced or, if
commenced, cannot proceed except with the consent of the
responsible Minister or some specified officer.[19] The Director of Public
Prosecutions Prosecution Policy explains that
in some cases the consent provisions will have
been included as it was not possible to define the offence so
precisely that it covered the mischief aimed at and no more. Other
cases may involve a use of the criminal law in sensitive or
controversial areas, or must take account of important
considerations of public policy. In appropriate cases the decision
whether to consent to a prosecution is made after consultation with
a relevant department or agency.[20]
Section 10.5 of the Criminal Code contains a defence of lawful
authority that excludes a person from being criminally responsible
for an offence if the conduct constituting the offence is justified
or excused by or under a law. Provisions in this Bill have sought
to make specific exclusion from prosecution where a person is
investigating the potential offence, or is involved with the
monitoring of an internet site or developing an internet content
filter (see for example proposed subsection
273.9). On the face of it, it would seem unnecessary
drafting to be so explicit in the immunity from prosecution when
the defence of lawful authority would likely apply. However, maybe
because of the gravity of the offences, the drafters sought to put
it beyond doubt that law enforcement or similar persons involved
with information technology are not criminally responsible for the
offence (if acting in the course of his or her duties and is
engaging in reasonable conduct).
Page 36 of the Explanatory Memorandum notes that
proposed subsection 272.16(2) will provide a
defence to offences committed under section 272.15 or 272.16. A
minor error in this explanation is that 272.16 is not an offence
provision so much as a list of defences against offences provided
for in other sections.
Item 1 will repeal Part IIIA of Crimes Act
1914. This is to facilitate the movement of the offences into
the Criminal Code Act 1995. It has been general practice,
where possible and when appropriate, to transfer Commonwealth
criminal offences enacted prior to 1995 into the Criminal Code.
After Division 271 of the Criminal Code, insert new Division 272
– child sex offences outside Australia
Item 4 inserts new Divisions 272 and 273.
Division 272 deals with child sex offences outside Australia.
Division 273 deals with offences involving child pornography
material or child abuse material outside Australia.
Proposed section 272.1 will insert new
Definitions for the purposes of this Division. The terms
‘cause’, ‘offence’, ‘position of
trust or authority’ and ‘sexual intercourse’ are
then defined in proposed sections 272.2-272.5.
Note that there are further definitions provided in the Bill for
other terms such as ‘make available’ and ‘engage
in sexual activity’ (see page 12).
Proposed section 272.6 outlines the
jurisdiction for the offences in this Division. At the time of the
offence, the person must be a citizen or resident of Australia, a
body corporate incorporated under an Australian law or any other
body corporate that carries on its activities in Australia.
It is made clear by proposed section 272.7 that
the Divisions does not limit or exclude the operation of any other
Australian law.
This subdivision outlines the proposed offences and their
defences. Together the offences are titled ‘Sexual offences
against children outside Australia’.
Proposed section 272.8 creates two offences,
both with a penalty of imprisonment for 20 years. Proposed
subsection 272.8(1) makes it an offence if the person
engages in sexual intercourse with another person (the child) and
the child is under 16 and the sexual intercourse is engaged in
outside Australia. Proposed subsection 272.8(2)
creates a new offence of causing the child to engage in sexual
intercourse in the presence of the defendant (outside Australia).
Further:
[Proposed] subsection 272.8(3)
will exclude the application of the automatic fault element
applying to a result of conduct under section 5.6 of the Criminal
Code (recklessness) and specifies that intention is the fault
element applying to the physical element in paragraph 272.8(2)(b).
Under paragraph 272.8(2)(b), the prosecution will have to prove
that the person’s conduct caused the child to engage
in sexual intercourse in the presence of the person (as the high
maximum penalty reflects). Given the offence is intended to address
the occurrence of actual sexual intercourse, it is appropriate for
the prosecution to have to prove that the person meant the child to
engage in sexual intercourse in their presence (rather than that
they were reckless as to this fact).[21]
Proposed section 272.9 will create two new
offences and insert a specific defence provision against those
offences. The first (proposed subsection 272.9(1))
will create a wide reaching offence for a person engaging in sexual
activity with another person, where that person is under 16. The
sexual activity must be engaged in outside Australia and the
penalty for that offence is 15 years’ imprisonment.
Proposed subsection 272.9(2) creates an offence
for a person to engage in conduct that causes the other person (the
child) to engage in sexual activity in the presence of that person.
The child must be under 16 at the time and the conduct must occur
outside Australia. The person must intend (rather than be
reckless for example) for his or her conduct to cause the child to
engage in sexual activity.
It is a defence under proposed subsection
272.9(5) to a prosecution under this section if the
conduct constituting either offence in the subsection consists only
of the child being in the presence of the defendant while sexual
activity is engaged in. Further, the defendant must prove that he
or she did not intend to derive gratification from the presence of
the child during that activity.
The Law Council of Australia is critical of this proposed
defence to this offence, saying it is not convinced that:
this defences provides adequate protection
against the potential for the proposed offence in s272.9(2) to
capture innocent, everyday sexual relations between consenting
adults that happen to be observed by children.[22]
The Attorney-General’s Department responded by saying that
with a fault element of intention, the drafting of the offence is
acceptable.[23]
Note that it is a defence in proposed subsection
272.16(1) to an offence under proposed sections
272.8 or 272.9 if the defendant proves
that at the time, he or she believed that the child was at least
16. Proposed subsection 272.16(2) will provide a
defence to these offences based on a belief about age. This is
discussed further at page 12.
Proposed section 272.10 will create a new
aggravated offence where the above offences (in sections 272.8 and
272.9) occur where the child has either (i) a mental impairment;
and/or (ii) the person is in a position of trust or authority in
relation to the child, or the child is otherwise under the care,
supervision or authority of the person. The penalty for this
aggravated offence is 25 years imprisonment. The Explanatory
Memorandum provides a thorough explanation of the liability that
applies to these subparagraphs, at page 22 which can be used as an
aid to the law’s interpretation.
Proposed section 272.11 creates a new offence
relating to persistent sexual abuse of a child (under 16 years of
age) outside Australia. The offence is technically complex and the
Explanatory Memorandum provides a good overview of what is required
for a successful prosecution under this section (see pages 23-24).
This section contains 11 subsections. A person will commit an
offence under section 272.11 if the person commits an offence
(under sections 272.8(1), (2) or 272.9(1) or (2)) on 3 or more
separate occasions during any period. The offence must have also
been committed against the same child. The penalty for this offence
is 25 years imprisonment. Proposed subsection
272.11(4) will provide that it is immaterial whether the
underlying offence or conduct is the same on each occasion.
Further, it will not be required to specify or to prove the
dates, or exact circumstances of the occasions, on which the
conduct constituting the offence against this section occurred
(proposed subsection 272.11(5)). However, a charge
must specify, with reasonable particularity, the nature of and the
period during which the offence occurred (proposed
subparagraphs 272.11(6)(a) and (b)).
Proposed subsection 272.11(7) explicitly
outlines what the trier of fact needs to be satisfied of (beyond
reasonable doubt). The trier of fact must be satisfied about the
material facts of certain occasions but need not turn his or her
mind to the dates or chronology of these occasions. A judge will be
required (under proposed subsection 272.11(8)) to
warn the jury of these requirements.
Proposed subsections 272.11(9)-(11) make it
clear that while double jeopardy cannot apply, alternative verdicts
(under proposed section 272.28) can apply.
Proposed section 272.12 creates two new
offences for when the defendant is in a position of trust or
authority. A person will commit an offence (with a penalty of 10
years imprisonment) if the person engages in sexual intercourse
with a young person who is at least 16 but under 18 and, that
person is in a position of trust or authority in relation to the
young person. Proposed paragraph 272.12(d)
provides that the sexual intercourse must be engaged in outside
Australia. It will also be an offence, with a penalty of 10 years
imprisonment) under proposed subsection 272.12(2)
to cause a young person to engage in sexual intercourse in the
presence of the person. The prosecution will be required to show
that the person intended to cause the young person to
engage in sexual intercourse. The Explanatory Memorandum provides
an explanation of the applicability of absolute and strict
liability to aspects of these offences (see pages 27-28).
Similarly, a new offence under proposed section
272.13 will carry a penalty of 7 years imprisonment if the
person engages in, or causes the young person to engage in, sexual
activity with or in the presence of the defendant (proposed
subsections (272.13(1) and
(2)). It will be a defence to a
prosecution under this section if the conduct constituting the
offence consists only of the young person being in the presence of
the defendant while sexual activity is engaged in and the defendant
proves that he or she did not intend to derive gratification from
the presence of the young person during that activity
(proposed subparagraphs 272.13(6)(a) and
(b) . Again, the Explanatory Memorandum provides
an overview and explanation of the applicability of fault elements
and absolute or strict liability to these offences (see pages
29-30).
Procuring and grooming offences are set out in proposed
sections 272.14 and 272.15.[24] Proposed section
272.14 will create the offence of procuring a child to
engage in sexual activity in Australia. Note that the term
‘sexual activity’ will be defined in the Dictionary to
mean:
Sexual intercourse or any other act of a sexual
or indecent nature (including an indecent assault) that involves
the human body, or bodily actions or functions (whether or not that
activity involves physical contact between people).[25]
Further, the phrase ‘engage in sexual activity’
means:
Without limiting when a person engages in
sexual activity, a person is taken to engage in sexual activity if
the person is in the presence of another person (including by a
means of communication that allows the person to see or hear the
other person) while the other person engages in sexual
activity.[26]
The offence will apply when the person engage in conduct with
the intention of procuring the child in engage in sexual activity
(whether or not with the person outside Australia). The child is
someone who is under 16, or who the person believes to be under 16.
Paragraph 272.14(1)(d) provides that the offence will apply
regardless of where, or by what means, the procuring took place,
provided the intention was to procure the child to engage in sexual
activity outside Australia. The penalty for this offence is 15
years imprisonment.
Proposed section 272.15 will create the offence
of grooming a child to engage in sexual activity outside Australia.
A person will commit an offence if the person’s conduct has
the intention of making it easier to procure the child to engage in
sexual activity (whether or not with the person) outside Australia.
The child must be under 16 or the person must believe the person to
be under 16. Proposed subparagraph 272.15(1)(d)
provide that the offence will apply regardless of where, or by what
means, the procuring took place, provided the intention was to
procure the child to engage in sexual activity outside Australia.
The penalty for this offence is 12 years imprisonment.
A defence based on the defendant’s belief about age is
outlined in proposed section 272.16. The
Explanatory Memorandum confirms that this section is based on
existing sections 50CA, 50CC and 50CD of the Crimes Act. The
Explanatory Memorandum further states that ‘the purpose of
the defence is to ameliorate the effect of applying absolute
liability to the circumstances of the offences that the child was a
certain age’.[27]
It will be a defence to a prosecution for offences against
proposed sections 272.8, 272.9,
272.14 or 272.15 if the defendant
proves that at the time he or she engaged in the conduct, he or she
believed that the child was at least 16. Additionally, it is a
defence to a prosecution under proposed section
272.12 or 272.13 if the defendant proves
that, at the time of the sexual intercourse or sexual activity, he
or she believed that the young person was at least 18.
Proposed section 272.17 will provide a defence
to the same offences in this subdivision if the defendant proves
that a valid and genuine marriage exists between the defendant and
the child. This must be proven on the balance of probabilities.
This subdivision outlines the offences of benefiting from,
encouraging or preparing for sexual offences against children
outside Australia.
A penalty of 20 years imprisonment will apply to a person who
engages in conduct with the intention of benefiting from an offence
against the Division. Proposed section 272.18
requires that the conduct must be reasonably capable of resulting
in the person benefiting from an offence. This will apply whether
within or outside Australia and whether or not the intention is for
financial benefit. It is immaterial whether or not the
offence is in fact committed.
Further, a person will commit an offence (under proposed
section 272.19) if they have the intention to encourage an
offence and the conduct is reasonably capable of encouraging such
an offence. The penalty for this offence is 20 years imprisonment.
To ‘encourage’ means to incite to, or urge, by any
means whatever (including by a written, electronic or other form of
communication); or aid, facilitate or contribute to in any way
whatever (proposed subsection 272.19(4)).
Preparing for, or planning an offence involving sexual
intercourse, or other sexual activity with a child will also be an
offence (proposed section 272.20), with a penalty
of 10 years imprisonment. Further, if a person does something with
the intention of preparing for, or planning an offence against
proposed sections 272.12 or
272.13, that person may be found guilty of an
offence and subject to 5 years imprisonment. These offences apply
regardless of where the act is done, regardless of whether the
offence was actually committed. Under proposed
subparagraphs 272.20(3)(c) and (d) both offences will
apply whether or not the act is done in preparation for, or
planning, a specific offence against a provision referred to in
subsections (1) or (2). The Explanatory Memorandum states that
this clarifies that it is not necessary for the
prosecution to identify a specific offence – it will be
sufficient for the prosecution to prove that the particular conduct
was related to ‘an’ offence. This ensures that the
offence will be available where a person has planned a range of
activities preparatory to committing a child sex tourism offence,
that are still in formative stages. For example, the person may not
necessarily have decided on a particular target, time or date or
other specific particulars of the elements that would constitute
one of the specified child sex tourism offences.[28]
This subdivision deals with use of video link evidence in
proceedings for an offence against this Division. So long as the
witness is not a defendant in the proceeding, proposed
section 272.21 will allow the court to direct that the
witness give evidence by video link. There are a number of sound
factors (including technical factors specified under
proposed section 272.22) that the court needs to
satisfy itself of in making this direction.
Subdivision E
Subdivision E deals with specific rules about the conduct of
trials for offences under this Division. This includes requiring
the consent of the Attorney-General if the defendant was under 18
at the time her or she allegedly engaged in the conduct
constituting the offence (proposed section
272.31).
A new Division 273 is proposed to be inserted
into the Criminal Code (Item 4). This Division is
entitled ‘Offences involving child pornography
material or child abuse material outside
Australia’.
Subdivision A addresses preliminary matters
including definitions, jurisdiction and double jeopardy. In
submissions to the Senate Committee’s Inquiry into the Bill,
the Victorian Police queried if the definition of certain material
includes copies of documents. However, for consistency with the
existing arrangements in the Evidence Act 1995
and similar criminal offences, copies of documents have been
included in the definition.
Subdivision B contains three new offences.
These offences cover the possession, control, production,
distribution or obtaining of child pornography or child abuse
material outside Australia (proposed sections
273.5 and 273.6). Both offences have a
penalty of 15 years imprisonment. There is also an aggravated
offence (proposed section 273.7) which makes it an
offence to engage in conduct under proposed section
273.5 and 273.6 on 3 or more occasions
and with 2 or more people. This aggravated offence carries a
penalty of 25 years imprisonment.
Subdivision C outlines the defence to offences
in this Division. A person is not criminally responsible for an
offence against proposed section 273.5 or
273.6 if their engagement in that conduct is of
public benefit and does not extend beyond what is of public
benefit. Proposed subsection 273.9(2) outlines
that conduct is only of public benefit if and only if, the conduct
is necessary for or assistance in law enforcement, compliance
monitoring, the administration of justice or conducting scientific,
medical or educational research. The conduct must be reasonable
having regard to the purpose (proposed subparagraph
273.9(3)).
If a person is a law enforcement, intelligence or security
officer (or similar) and is acting in the course of his or her
duties, and engages in reasonable conduct, they will not be found
guilty of the offences under proposed sections
273.5 and 273.6. Further, under
proposed subsection 273.9(5), if the person is
assisting the Australian Communications and Media Authority to
detect specific prohibited content, that person is not criminally
responsible for an offence against proposed sections
273.5 and 273.6. Similarly, if a person
is involved in manufacturing or developing content filtering
technology that person is not criminally responsible for an offence
against proposed sections 273.5 or
273.6. It is not clear why the defence of
lawful authority in the Code (section10.5) would not be sufficient
for a defence against these offence provisions. However, it may be
a policy decision to put it beyond doubt because of the seriousness
and stigma that would be attached to a person who is charged with
an offence under this section. The drafters may have also
considered that it might serve as a necessary and an effective
guide for prosecutors.
This subdivision (proposed sections
273.10-273.15) allows and facilitates the giving of
evidence by a witness by videolink.
Items 5-11 insert new definitions into the
Criminal Code’s Dictionary of the following terms:
-
cause
- engage
in sexual activity
- mental
impairment
- position
of trust or authority
-
procure
- sexual
activity and sexual intercourse.
Part 2 of the Bill makes amendments relating to
child sex offences involving postal or similar services, or
carriage services. These amendments are to Divisions 470, 471, 473,
474 of the Criminal Code.
Proposed section 470.4 provide that the
definitions that presently apply to other telecommunications
offences in the Criminal Code will also apply to proposed
Subdivisions B and C of Division 471.
Item 14 inserts a new subdivision B at the end
of Division 471. This Subdivision is entitled ‘Offences
relating to use of postal or similar service for child pornography
material or child abuse material’. The general offence is at
proposed section 471.16 and creates an offence if
a person causes an article to be carried by a postal or similar
service and the article is, or contains, child pornography
material. The penalty for this offence is 15 years imprisonment.
The Explanatory Memorandum notes that:
The purpose of this offence is to ensure that
the use of a postal or similar service for conduct relating to
child pornography is criminalised in a way that is consistent with
comparable offences directed at the Internet.[29]
It will also be an offence (under proposed subsection
471.17(1)) where a person possesses, controls, produces,
supplies or obtains child pornography material with the intention
that the material will be used by that person, or another, in
committing an offence against proposed section
471.16. Again, the penalty for this offence is 15 years
imprisonment. Proposed subsection 471.17(3) states
that it is not an offence to attempt to commit any
offence. A person may be guilty of an offence under
proposed subsection 471.17(2) even it is
impossible to send the material, for example, if a computer
contains child abuse material but is not connected to the
internet.
Defences available to these two offences are listed in
proposed section 471.18 and are similar to those
relating to child sex offences. That is, if a person is a law
enforcement, intelligence or security officer (or similar) and is
acting the course of his or her duties, and engages in reasonable
conduct, they will not be found guilty of the offences under
proposed sections 471.16 and
471.17. While the defence of lawful authority
under the Code would likely apply to this provision, it would seem
that the Government intends to put it beyond doubt that these
persons are not to be captured by this offence.
The new offences of using a postal or similar service for child
abuse material (proposed section 471.19) or for
possessing, controlling, producing, supplying or obtaining child
abuse material for use through a postal or similar service
(proposed section 471.20) are similarly framed to
the new child pornography offences and have the same penalty
provision (15 years imprisonment). Again, defences are prescribed
(under proposed section 471.21) and an aggravated
offence (proposed section 471.22 involving conduct
on 3 or more occasions and 2 or more people) will result in a
penalty of 25 years imprisonment.
Subdivision C creates new offences relating to
the use of postal or similar services involving sexual activity
with a person under the age of 16. These are procuring and grooming
offences. Proposed section 471.24 will create an
offence to send an article by post or a similar service to another,
with the intention of procuring the recipient to engage in sexual
activity. Further, the recipient is, or who the sender believes to
be under 16. The penalty for this offence is 15 years imprisonment
(proposed subsection 471.24(1)). The Explanatory
Memorandum explains that the offence will apply:
Where a person (the sender) engages in conduct
using a postal or similar service with the intention of procuring
the child (the recipient) to participate in the following:
- sexual
activity with the sender
- sexual
activity with another person who is at least 18 years of age (a
participant), or
- sexual
activity with another person who is under 18 years of age in the
presence of the sender or a participant who is, or the sender
believes to be, at least 18 years of age.
The offence is modelled on the existing
carriage service offence in section 474.26 of the Criminal Code,
which deals with the use of a carriage service to procure a person
under 16 for sexual activity.[30]
Similarly proposed section 471.25 will create
an offence of using a postal or similar service to
“groom” a person (or persons) under 16. The Explanatory
Memorandum notes that the purpose of this offence
is to give law enforcement authorities the
means to deal with preparatory conduct and enable a person to be
arrested before any physical harm to the child occurs.[31]
The term “grooming” is taken to mean
‘intentionally making it easier to procure’ an
individual to participate in sexual activity.[32]
The offence in proposed subsection 471.25(3)
operates in the same way as the other offences in the section with
the additional element that the sender intends that the sexual
activity take place with another person who is under 16 in the
presence of the sender, or another person who is at least 18. While
the previous two offences in this section carry 12 years
imprisonment, this offence will carry 15 years imprisonment.
Further, absolute liability will apply to all three offences in
this section on the physical element of belief about the
child’s age. As explained in the Explanatory Memorandum:
The effect of applying absolute liability to an
element of an offence means that no fault element needs to be
proved and the defence of mistake of fact is not available.
Accordingly, the prosecution will not be required to prove that the
person knew or was reckless as to the fact that the recipient was
under 16 years of age. Applying absolute liability to this element
of the offence is appropriate given the intended deterrent effect
of this offence and the availability of a specific ‘belief
about age’ defence available under proposed
subsection 471.29.[33]
Sending indecent material to a person under 16 will also be an
offence against this Subdivision. Proposed section
471.26 will carry a penalty of 7 years imprisonment if a
person sends indecent material to a person who is, or is believed
to be under 16. The meaning of indecent is provided as
‘indecent according to the standards of ordinary
people’ (proposed subsection 471.26(3)).
Because the age-related provisions in these offences can only be
determined by the defendant’s exclusive knowledge,
proposed section 471.27 sets out a number of
age-related provisions about how the age of the sender, recipient
and participant affects the criminality of conduct under this
Subdivision. Proposed subsection 471.27(5)
outlines the admissible evidence in determining how old a person is
or was at the time of the offence. This includes: the
person’s appearance, medical or other scientific opinion, a
document (or copy of a document) that is or appears to be an
official or medical record from a foreign country (proposed
subparagraphs 471.27(5)(a)-(d)).
Proposed section 471.28 provides that a person
may be found guilty of an offence under proposed section
471.24 or 471.25 even if it is impossible
for the sexual activity referred to in that section to take place.
The Explanatory Memorandum explains that this
is consistent with the fundamental component of
the offence – criminalising the person’s intention to
engage in sexual activity with a child. It will not matter if it is
impossible for the sexual activity to take place.[34]
Attempting to commit an offence under proposed sections
471.24 or 471.25 will not be an offence.
This is appropriate because those are preparatory offences. It is
not specified that it is not an offence to attempt to commit an
offence under proposed section 471.26.
Defences to the offences in this Subdivision are outlined in
proposed section 471.29. It is a defence to a
prosecution if the defendant proves that at the time of the
offence, the defendant believed that the recipient was at least 16.
For the procuring and grooming offences, it is a defence if the
defendant can prove that he or she believed that the participant
was under 18.
Category A jurisdiction will apply to an offence against
Subdivision B or C of this Division. As the Explanatory Memorandum
notes, this is consistent with the jurisdiction applying to the
carriage service offence regime.[35]
Items 15 – 19 of the
Bill will re-structure Subdivision C and D, including retitling
them ‘General offences relating to use of
telecommunications’ and ‘Offences relating to use of
carriage service for child pornography material or child abuse
material’ respectively.
Items 20-27 will change the parameters of
existing offences in Division 474. Item 20 will
expand the conduct criminalised under section 474.19(1)(a) of the
Criminal Code. If a person uses a carriage service to advertise or
promote child pornography or abuse material, they will be guilty of
an offence. This applies to persons whether or not the person
engages in transmitting or making available actual child
pornography or abuse material. The amendments will also extend the
operation of the offences to cover soliciting such material. The
restructuring of existing sections 474.19 and 474.22 will:
criminalise accessing, causing material to be
transmitted, transmitting, making available, publishing,
distributing, advertising, promoting or soliciting child
pornography or abuse material using a carriage service. The
amendments will separate the conduct of accessing, causing material
to be transmitted, transmitting, making available, publishing,
distributing, advertising, promoting or soliciting from the means
by which this conduct occurs. This will allow for the application
of absolute liability to the element of the offence that this
conduct occurs using a carriage service.[36]
Items 21, 23, 25 and 27 will amend the child
pornography carriage service offences by increasing the maximum
penalty from 10 to 15 years imprisonment. The Explanatory
Memorandum justifies this increase by stating that ‘…
in light of the scale of contemporary offending [this increase]
will ensure that the maximum penalty reflects the worse case
scenario.’[37]
Item 28 will insert a new aggravated offence
(proposed section 474.24A) involving conduct on 3
or more occasions and 2 or more people in relation to these
carriage service offences. The aggravated offence will attract a
penalty of 25 years imprisonment.
Item 29 will insert new Subdivision F, creating
offences relating to the use of a carriage service involving sexual
activity with a person under 16 years of age. The penalty for this
offence (under proposed section 474.25A) is 15
years imprisonment. Similarly, to cause a child to engage in sexual
activity with another person will attract a penalty of 15 years
imprisonment. And aggravated offence under proposed section
474.25B will increase the penalty to 25 years imprisonment
if the child has a mental impairment and/or the person is in a
position of trust or authority in relation to the child, or the
child is otherwise under the care, supervision or authority of the
person.
Items 30 to 43 make some improvements in the
drafting and the subsequent operation of the existing grooming and
procuring offences at sections 474.26 and 474.27. These are
comprehensively explained in the Explanatory Memorandum at pages
92-95.
The existing general ‘catch-all’ provision in
section 474.17 of the Criminal Code carries with it a penalty of 3
years imprisonment. Rather than increasing the penalty for this
general offence, a new offence will be created that explicitly
targets using a carriage service for indecent communications with a
child, or a person the defendant believes to be a child
(proposed section 474.27A). The penalty for this
offence will be 7 years imprisonment. Further, item
45 will repeal the existing subsection 474.28(1) and
replace it with a provision making it clear that absolute liability
applies to the physical element of circumstance of the offence.
That is, where the recipient is someone who is under 16 years of
age. Other amendments in items 46-55 amend section
474.28 to extend its application to the new offences created under
this Subdivision. These items also clarify to which elements of the
offence absolute or strict liability applies. For a full and
thorough explanation, see pages 98-101 of the Explanatory
Memorandum.
Item 59 will insert an important provision in
proposed section 475.1B. This section inserts the
presumption relating to the requirement in all offences in Division
474 that the relevant criminal conduct was engaged in using a
carriage service. The Explanatory Memorandum discusses this in full
at page 104:
The purpose of this section is to address
problems being encountered by law enforcement agencies in proving
beyond reasonable doubt that a carriage service was used to engage
in the relevant criminal conduct.
Division 474 contains offences directed at
telecommunications services, criminalising the use of a carriage
service for a diverse range of criminal conduct. These offences
rely on the Commonwealth’s telecommunications power under the
Constitution. Thus, the requirement in offences across Division 474
that the relevant criminal conduct be carried out through a
carriage service is a jurisdictional requirement, … marking
a jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do
not.[38]
Item 60 inserts a new definition relevant to
existing offences in section 474.19 and 474.22. The term
‘make available’ will include, but not be limited to,
describing how to obtain access, or describing methods that are
likely to facilitate access, to material (for example: by setting
out the name of a website, an IP address, a URL, a password or the
name of a newsgroup).
Part 3 of the Bill makes consequential
amendments to the Australian Crime Commission Act 2002,
the Crimes Act 1914, the Surveillance Devices Act
2004 and the Telecommunications (Interception and Access)
Act 1979 to ensure that existing law enforcement powers are
available to combat all Commonwealth child sex offences in the
Code.
Schedule 2 of the Bill provides a specific scheme in the
Crimes Act 1914 for the forfeiture of child pornography
and child abuse material that is related to a Commonwealth child
sex offence. The Explanatory Memorandum explains that:
Currently, there is no specific Commonwealth
scheme for dealing with such material or equipment. In cases where
no person is convicted of an offence (either because no prosecution
is commenced or a prosecution is commenced but results in an
acquittal) the seized items must be returned. The return of child
pornography and child abuse material, or items containing such
material, is clearly inappropriate, and risks subjecting the owner
to prosecution for State and Territory possession of child
pornography offences.
In cases where a person is convicted of an
offence, an application must currently be made for the forfeiture
of the material under the Proceeds of Crime Act 2002. This
is a lengthy process and one ill-suited for dealing with child
pornography and child abuse material.[39]
The proposed scheme will have both administrative forfeiture
(notice scheme) and court-ordered forfeiture. The scheme will apply
to all child pornography or child abuse material seized or
otherwise obtained by a Commonwealth, State or Territory police
officer, where he or she believes on reasonable grounds that the
material or article was derived from or used in connection with the
commission of a Commonwealth child sex offence. Under the scheme,
an officer will have the power to issue a notice for the forfeiture
of the material or article.[40] In this context then, a computer, a mobile phone
or DVD that has child pornography content may be forfeited where
there is an identifiable person being in possession of that item.
If an item is forfeited that is not connected with a Commonwealth
child sex offence, then compensation is payable to the person who
owns that item.
For court-ordered forfeiture, the court will be required to
order the forfeiture of all child pornography or child abuse
material, or articles containing such material, that it is
satisfied were derived from or used in connection with the
commission of a Commonwealth child sex offence, in respect of which
a person is or has been convicted, or that the court is satisfied
(on the balance of probabilities) has been committed.[41]
Item 8 will insert a new Part
IE, entitled Forfeiture of child pornography material and
child abuse material. Proposed new subsection
23ZB(1) will outline the forfeiture scheme, applicable if
a constable reasonably believes that the forfeitable thing is
derived from, or was used in connection with, the commission of a
Commonwealth child sex offence. The constable may issue a
notice (proposed subsection 23ZB(2)) which must
fulfil the content requirements under proposed subsection
23ZB(3). Persons who are issued a forfeiture notice have
the capacity to object (in writing) within 30 days of the giving of
the notice (proposed subparagraph 23ZB(3)(c)).
The Bill provides for a person to make a written request to the
head of the police force (and includes the constable who issued the
notice). If the request is for the person to be given a copy of
parts of the thing, or of data contained in the thing that are
readily identifiable (and are not child abuse material), the head
of the police force must comply with the request. The head of the
police force is permitted not to comply with the request if he or
she reasonably believes that to do so might endanger the safety of
anyone or prejudice an investigation or prosecution
(proposed section 23ZC).
Division 3 outlines the court-ordered
forfeiture procedure. The DPP must apply to the court. The
court must be satisfied that a Commonwealth child sex offence has
been committed or that a person is or has been convicted of a
Commonwealth child sex offence (by the court or another court). If
so satisfied, the court must order the forfeiture to the
Commonwealth of things that are derived from, or used in connection
with the commission of the offence and have not already become
property of the Commonwealth (proposed section
23ZD). This section also outlines that interim orders can
be made and that the court may make compensation orders.
Division 4 outlines general provisions relating
to the forfeiture of property under this Part, including
compensation arrangements if property is forfeited when a person
had a right to possess it or had property in the thing (such as a
CD in a computer) immediately before the forfeiture
(proposed section 23ZF).
The Senate Legal and Constitutional Affairs Committee has made
no comments on this Schedule and it would appear that this
forfeiture scheme is widely accepted as necessary and appropriate
to implement.
Concluding comments
This Bill enhances the current child sex legislative regime to
keep pace with technology and to correspond with society’s
expectations of having serious penalties for these types of
offences. The Bill fills in legislative gaps where there were
potential vulnerabilities for children who were somehow involved in
a sexual act or abuse outside of Australia.
While ‘in complex areas like this, good law is challenging
to formulate especially when it is prepared in a highly charged
context’, this Bill is preceded by a comprehensive discussion
paper and extensive public consultation. It is indeed possible that
the Bill meets the challenge of making good law in this area.
However, legislative change is not the only factor in protecting
children from harm online:
While a legislative approach is useful to keep
children safe in the online environment, it is unlikely that law
enforcement alone can cause a noticeable reduction in the online
child-grooming statistics, making non-legislative responses crucial
in improving internet safety for children. Non-legislative
responses include major social networking sites working proactively
with law enforcement agencies to protect children against sexual
offenders online, and the development of software to locate and
identify perpetrators and the distributors of child abuse
materials.[42]
At the time of publication of this Digest, social networking
site Facebook announced the launch of a site to obtain information
and report Facebook pages that are used for sex offenders and
terrorism activity. This is a positive step to complement the child
sex legislative regimes across the world.[43]
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2430.
[43].
‘Facebook moves to oust sex pests and
criminals’, Sydney Morning Herald, 15 April 2010:
http://www.smh.com.au/technology/facebook-moves-to-oust-sex-pests-and-criminals-20100414-se5s.html
Monica Biddington
7 May 2010
Bills Digest Service
Parliamentary Library
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