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CHAPTER 4: Adequacy of Police Resources, Role of the NCA, and Other Matters
4.1 The previous chapter dealt with the issues
raised in paragraph (a) of the terms of the Committee's inquiry. In this
chapter the Committee considers the matters referred to in the remaining
paragraphs: the adequacy of law enforcement resources, the role of the
NCA, whether the Review's conclusions were justified, and the extent of
official protection of paedophiles. It follows from the conclusions of
the previous chapter on the limited scope and extent of the networks in
Australia that the comments made in this chapter are correspondingly limited.
Many do not relate only to networks as such, but to the problems of combating
all types of criminal paedophile activity. The following points provide
a context for the comments made in this chapter.
4.2 First, as explained in the previous chapter,
only a small proportion of the cases of child sexual abuse involve organised
or networked groups in any significant sense. It is essential that any
focus by law enforcement agencies on organised paedophilia is not at the
expense of resources devoted to the majority of cases of child sexual
abuse. [note #232]
4.3 Second, a focus on networks or organised
paedophilia may send the wrong signal to the general community. There
has been a widespread reluctance in Australia to accept the reality that
most child abuse is committed by a close relative or person well known
to the victim. The tendency has been either to deny that much abuse occurs
or to blame strangers and attach disproportionate importance and credence
to claims, often sensationalised by the media, about shadowy paedophile
organisations and networks. Much effort has been made in recent years
to educate the community as to the true position. Any unwarranted focus
on organised paedophilia risks undoing some of this effort. The Association
of Children's Welfare Agencies told the Committee:
We would be concerned - in an environment where it is tempting to deny
the prevalence of child abuse and child sexual assault - when claims
are made which are lacking in any concrete evidence and which, in a
tabloid environment might seem quite outlandish. When they are not able
to be proved and when the allegations fall into some disrepute because,
perhaps, they were outlandish and not based on anything which could
be proved, our concern is that that goes further towards the denial
process of child sexual assault. [note #233]
4.4 Thirdly, even in cases where some sort of
organisation or network does exist, it may not play a major role in the
commission of sexual offences against particular children. With traditional "organised crime", it is widely accepted that a strategy which
focuses on the organisation and seeks to convict its leaders will be more
effective than one which deals piecemeal with the individual crimes committed
by organisation members. Much of the work of the National Crime Authority
reflects this. It is far from clear that the same argument applies to
the very different type of networking which is found among some paedophile
offenders. The networks often seem primarily to provide paedophiles with
moral support, self-legitimisation, and a means of swapping seduction
strategies and child pornography, rather than directly facilitating the
commission of offences against specific children. Where this is true,
removal of the network may not lead to any marked reduction in the sexual
abuse of children. Undue focus on networks may therefore represent a mis-allocation
of resources. Moreover, some of the networks appear to be so loose and
unorganised that there is little in the way of structure or key organisers
to be the focus of law enforcement efforts.
4.5 The Committee is not suggesting that police
should simply ignore such networking as does exist. Clearly following
the links between paedophiles may provide intelligence that enables investigators
to identify someone hitherto unsuspected of committing offences against
children or possessing child pornography.
4.6 Fourthly, the Committee was told that in
some important respects the investigative strategies used against traditional "organised crime" cannot be employed against paedophile networks.
When investigating the former, a common strategy is to avoid immediately
arresting the street level criminals in the hope that by monitoring their
activities and/or persuading some of them to become informers, the police
can gain information and evidence against those further up the hierarchy.
Electronic surveillance can be used in a similar way. As police told the
Committee, if a surveillance team found that an offence against a child
was about to occur, it would have to intervene immediately: it simply
would not be acceptable to allow the offence to proceed so as to find
out more about any network or organisation that might be involved.
4.7 Fifthly, the approach taken in this chapter
assumes that the National Crime Authority will not have any continuing
role in relation to organised paedophile activities. The Authority is
due to complete its strategic intelligence assessment early in 1996. At
an 11 August 1995 meeting with the Authority, the Committee Chairman summarised
his tentative view of what its inquiry had found, along the lines set out in the previous chapter. He then asked Mr Sherman,
the Authority Chairperson, what the Authority's continuing involvement
would be if the Authority's assessment came to similar findings. Mr Sherman
If our assessment comes out in terms similar to those that you have
just articulated, I do not propose that the NCA stay around in that
area creating a role for itself. But we have to be sure that is the
case. If it is, we will get on to other things. [note #234]
4.8 The Committee endorses this view. It considers
that unless criminal paedophile activity can be shown to be organised
in fairly extensive and sophisticated ways that span State/Territory boundaries,
there is no justification for bringing the Authority's specialist skills,
expertise and special coercive powers to bear on an on-going basis. [note
#235] The specialist units in State and Territory police forces have
skills and expertise in investigating child sexual assault that the Authority
does not possess. It appears to the Committee that, with the enhancements
discussed later in this chapter, State and Territory police are better
placed than the Authority to deal with the limited degree of organisation
and sophistication involved in paedophile networking.
4.9 It is better to leave the principal area
of child sex offences to State and Territory police (and the international
aspect to the Australian Federal Police) rather than try to split the
area, with the Authority having a role in relation to the "organised"
part. The "organised" part is not, in the Committee's view sufficiently
organised, sufficiently large or sufficiently distinct to constitute a
separate area which poses special problems requiring a different approach.
However, the Committee received evidence that there were areas where current
law enforcement arrangements are not effective. This problem is most pronounced
in the detection of pornography and/or information which has either been
imported on CD ROM disks or electronically via computer links. No particular
agency appears to have responsibility for the surveillance of the computer
transmission of pornographic material. [note #236] In fact, the only apparent point when police
have jurisdiction to prosecute those responsible for downloading child
pornography is when the possession of it constitutes a State or Territory
offence. To the extent that improved communication and co-ordination are
required among law enforcement agencies, the Committee is of the view
that the Commonwealth should accept responsibility for the detection of
offences involving the transmission of child pornography using the telephone
network. This responsibility ought to be resolved
by direct arrangements between the specialist State and Territory units
and whichever Commonwealth agency is considered to be most suitable for
the job. The National Crime Authority is not the suitable agency in this
Information Sharing among Law Enforcement Agencies
4.10 End Child Prostitution in Asian Tourism
(Australia) told the Committee that there needed to be better sharing
of information and coordination of activities amongst Australian law enforcement
agencies: "While it seems a great deal of connections exist between
[paedophile] individuals, there does not seem to be enough connection
and coordination between the police forces". [note #237]
4.11 The Australian Federal Police told the Committee
there was a good level of cooperation and information exchange between
police services. [note #238] Other police forces also indicated that
the level of information exchange was reasonably good, both amongst the
various State and Territory police forces, between those forces and agencies
such as the Australian Customs Service and the AFP, and between local
and overseas agencies. [note #239] It seems that in recent years there has
been an increased willingness amongst law enforcement agencies to cooperate
and to share information generally, and this has improved the both information
flows and coordination in relation to paedophile investigations. [note
#240] This also seems to be true to some extent between Australian
and overseas agencies. [note #241]
4.12 None of the police, however, suggested that
the position was perfect. The South Australia Police told the Committee
that police were still on a learning curve in relation to paedophiles
and their networks "and probably not a lot has happened in the sense
of inter-jurisdictional cooperation as a proactive means to combat it". [note #242] The Committee was told:
"What needs to happen is that there needs to be better coordination
not only of the transfer of information but also in regard to the investigations
that are undertaken". [note #243] The
Australian Federal Police also argued that there was room for improvement
in the area of information exchange:
The AFP is of the view that the single most important issue in addressing
law enforcement interests in this sensitive issue is the need for timely
and effective exchange of information. Through the exchange of information
and the adoption of a more pro-active approach - having due regard,
of course, to civil liberties - the opportunity exists to identify paedophile
activity at an earlier stage. There is a need for such information to
be effectively managed and this may be best achieved by individual jurisdictions
exchanging information on a more formalised basis than is the case at
the moment. [note #244]
4.13 The AFP gave as an example its need for
better information from other agencies on known and suspected paedophiles
so that airport watch lists could be maintained and destination countries
alerted. [note #245] It suggested that
the Australian Bureau of Criminal Intelligence
should be the repository of the information. [note #246] The ABCI currently has a project involving
the collection and dissemination of intelligence on paedophiles, and it
has a database which State and Territory police forces and the AFP access.
[note #247] The Australian Federal Police
Association also argued for better coordination of information between
agencies, but said that the AFP itself should take on the task. [note #248]
4.14 The Committee RECOMMENDS that the Minister
for Justice raise with the Australasian Police Ministers' Council the
issue of how the improved flow of information on paedophile offenders
and suspects between Australian law enforcement agencies can best be achieved,
and in particular:
- whether enhancing the Australian Bureau of Criminal Intelligence's
database is the most appropriate avenue along which to proceed; and
- whether formal agreements between relevant law enforcement agencies
on information sharing should be put in place.
More Effort into Following up Links and a More
4.15 The 1994 interim report by the NSW Independent
Commission Against Corruption noted: "In response to the increased
reports of child sexual abuse, national and State law enforcement agencies
have focused attention on the potential to enhance proactive approaches
to investigation of child sexual abuse". [note #249] The National Association for Prevention
of Child Abuse and Neglect told the Committee that there needed to be
a greater effort by police to detect organised aspects of paedophile offences:
"When investigating organised paedophile activity, you actually have
to go and seek it out and follow it up, based on the leads you have".
[note #250] Ms Bernadette McMenamin of End
Child Prostitution in Asian Tourism (Australia) also told the Committee
that there needed to be better follow-up of possible links when an individual
child-sex offender is arrested:
There might be a case where child pornography is found but I think
to look beyond that into the links that this person has, both in Australia
and overseas, would be critical in discovering how extensive this person's
networks are. [note #251]
4.16 The Committee regards this as a useful point
which the Committee would encourage police to put into practice wherever
possible. [note #252] However, there are practical limits on
what can be achieved. In the pornography case for example, the material
may have been in the person's possession for many years and have originated
overseas. Follow-up may not prove productive, either in uncovering a possible
distribution network or in identifying the child depicted in the material.
The South Australia Police told the Committee, however, that if home-made
child pornography was found it would be followed up, with the relevant
interstate or foreign law enforcement agency being informed if the material
came from outside South Australia. [note #253]
4.17 Other police told the Committee that they
do engage in covert or "sting" operations in an effort to try
to find out how child pornography is being distributed and how paedophiles
network. [note #254] Operations in the United States in which
law enforcement officers pretend to be vendors or purchasers of child
pornography have been conducted on an elaborate and aggressive scale for
over a decade. [note #255] These operations have attracted controversy.
One reason has been that the efforts mounted by agencies have sometimes
come very close to entrapping someone into seeking and buying child pornography
who otherwise would not have done so. [note
#256] Another basis of criticism has been that the results do not justify the considerable
resources used, with relatively few of those convicted through such operations
being involved in sex offences against children. [note
#257] Law enforcement officials, however, disagree, citing statistics
of the success of the operations in uncovering child-sex offenders. [note
4.18 In the Committee's view there is a balance
to be struck between the utility of covert and "sting" operations,
and the resources they require. [note #259]
It is a matter for judgment in particular circumstances whether it would
be more efficient to follow direct leads to suspected child-sex offenders
than to try to follow a child pornography trail in the hope that it will
lead to the uncovering of a hitherto unsuspected child-sex offender. [note #260]
National Register of Paedophiles?
4.19 Overlapping with the calls by some police
for improved sharing of information amongst police were calls from several
non-government organisations for some sort of national register of paedophiles.
These organisations were seeking a broader system than a police intelligence
database - one that could be used to help parents and others responsible
for children to screen those likely to come into contact with the children.
The Committee was made aware of the difficulties faced by agencies and
voluntary organisations trying to ensure that anyone working with or acting
through them was not a paedophile. At present community organisations
can ask police to conduct a check on someone (with their consent) to see
if he or she has been convicted of a child-sex
offence. [note#261] But the Committee
was told that currently there are defects in the record systems used by
4.20 The National Association for Prevention
of Child Abuse and Neglect (NAPCAN) suggested that ideally the system
should be enhanced in the following ways for the following reasons.
- The linkage between child-sex offender records held by police and
those held by child welfare departments and agencies should be improved,
and the possibility of a national register considered. It was said that
at present police records do not necessarily contain the names of persons
who have been notified as abusers to the child welfare system, if no
prosecution was brought and conviction obtained. [note
#262] The Committee was told that better integration of existing
registers would, for example, highlight the fact that the same names
keep on appearing on the different registers. [note
#263] The Committee assumed that what was being sought was ideally
a national registry scheme.
- Following from the previous point, it was important that the records
should indicate if a person, even though never convicted, had been the
subject of allegations of child abuse or that there was some evidence
against that person. The Committee was told that there are cases in
which a person had been subject to police and welfare department investigations
but never convicted, and yet was subsequently able to obtain a position
delivering services to vulnerable children. [note
- The vetting system should not just check for child-sex offences but
extend to other offences such as indecent exposure, aggravated assault
and peeping-Tom offences, because there is some evidence from research
that engaging in these activities indicates a propensity to commit child-sex
offences. [note #265]
- The vetting process for employees and volunteers should not be confined
to those in full-time direct contact with children, but should include
all members of the organisation and, in the case of an operator of a
child care facility, all members of that person's family as well. As
NAPCAN explained, people who have offended have been in positions not
seen as giving rise to significant risks, such as a bus driver or an
accountant who periodically spent a day in a child-care centre. [note
- A relatively wide range of people having care of children should be
able to access the system to screen someone coming into contact those
children. Possibly this might even extend to parents being able to check
on a neighbour offering to look after their children. Parents, it was
argued, should have the means to ascertain the safety of their children.
4.21 The general thrust of what NAPCAN proposed
was supported by the spokespersons for other non-government groups who
appeared before the Committee. [note #268]
4.22 The Committee notes that the Victorian Parliament's
Crime Prevention Committee in May 1995 recommended that the Victoria Police
establish and maintain a register of sex offenders. The Victorian Committee
stated that the system was required because of "the high recidivism
rate of sex offenders and their propensity to continue to offend over
their lifetime". [note #269] The
system it proposed would require lifetime registration for adults convicted
of an indictable sexual offence, not limited to offences against children.
A shorter registration period would apply to juvenile sex offenders. Those
on the register would have to notify a change of address or source of
employment within 10 days. Any person moving into Victoria who had been
convicted elsewhere in Australia of a relevant offence would also have
to register within 10 days of arrival. Registration details would include
a DNA sample, fingerprints and a photograph. Any failure to comply with
registration requirements would constitute an indictable offence. The
Victorian Committee also recommended "that the Attorney General and
the Police Minister lobby for an extension of the sex offender registration
program nationally". [note #270]
4.23 The Committee understands the motivation
- prevention of child sexual abuse - that led to the calls for a better
system for collecting and distributing information on child-sex offenders.
If prison sentences and treatment programs have only limited success in
preventing paedophiles from re-offending, it is logical to take greater
steps to prevent them from having unsupervised access to children. However,
the Committee has some concerns with the scope of the proposals put to
it. In general terms, the Committee believes
that any proposal for something along the lines of a national register
must firstly be shown to be a cost-effective means of addressing the problem,
and secondly, must have an appropriate regard for the rights of those
whose names may appear on the register.
4.24 The Australian Federal Police cautioned
against regarding such registers as a simple solution, quite apart from
the civil liberties issues the registers raised. On the one hand, a single
mistake on the register or by its operators could call the credibility
of the whole system into question. On the other hand, there was a danger
that employing organisations would assume that if a person was not on
the register he or she posed no problem. They would therefore fail to
screen the person by other mechanisms, such as in-depth interviews and
checking of references. [note #271] In a different context the point was made
to the Committee that not all such organisations appear to have adequate
screening procedures in place at present, and that paedophiles will tend
to gravitate to those in which the procedures are lax. [note
#272] The Committee notes that for organisations reluctant to put
in place thorough screening procedures, a check with a national register
might wrongly be seen as sufficient and cheap alternative.
4.25 A further issue relates to the impact of
legislation allowing the non-disclosure of criminal records where an offender
has not re-offended in a given period (for example ten years) since the
original offence. The Committee was told that in Western Australia the
relevant legislation applies to child-sex offences. [note #273] It was argued that it should not, because
paedophiles have a life-long propensity to offend. [note
#274] In other jurisdictions, the legislation does not have the same
effect, though there are differences in the details. [note
#275] The differences between the various pieces of Commonwealth,
State and Territory legislation [note #276]
would need to be taken into consideration if a national register were
to be created. [note #277]
4.26 Another issue that would need to be considered
is the range of offences which could lead to a register entry. Child-sex
offences are variously defined in the criminal laws of the States and
Territories. The Committee would want to see solid research linking conviction
for non-child-sex offences with a propensity to commit child-sex offences
before it would accept that the former category of convictions should
provide a basis for entry onto any national register.
4.27 A further issue is who would have access
to the register. The Victorian Committee did not indicate who, apart from
police, was to be able to access the register which it proposed (see paragraph
4.22 above). Broadly similar registers are becoming increasingly popular
in the United States, often including the names of persons who have committed
sexual offences against adults. Provision is sometimes being made in the
schemes in the United States for some degree of access to the registers
by members of the public, or for requiring registry officials to notify
local communities, schools and the like that a released offender is living
in the community. [note #278] However, in some cases where this happens
vigilante-style attacks on the ex-offender have
resulted. [note #279] Moreover the legislation establishing these
more public registers has been widely attacked on Constitutional grounds.
4.28 The Committee would have serious concerns
if any enhanced register-system allowed general public access. The Committee
believes that access by non-law enforcement personnel should generally
only be permitted where the subject has consented, typically by signing
a consent form in the context of applying for a job. If there are to be
any exceptions to this consent requirement, the need for them should be
4.29 Subject to these sorts of considerations,
and resolution of the not insignificant questions of who is to pay for
and maintain a national register, [note #281] the Committee broadly supports an improved
method of recording those convicted of child-sex offences. The obvious
avenue to explore is the scope for utilising the existing database held
by the Australian Bureau of Criminal Intelligence.
4.30 However the Committee has a major concern
with the suggestion that an enhanced register should also include the
names of persons who have not been convicted. It notes that several of
the police officers who appeared before it expressed personal opposition
to, or at least serious doubts about, allowing any sort of public access
to records of allegations, as opposed to convictions. [note #282] Others also expressed grave reservations.
4.31 The Committee acknowledges that many allegations
of child-sex offences do not result in convictions because of a lack of
sufficient evidence, in particular evidence to corroborate the child's
version of what occurred. However, false allegations are not unknown,
whether due to malice, faulty recollection, memory contamination, mistake
or some other cause. [note #284] Major questions of civil liberties arise
if a system is going to be used to deny persons employment and possibly
affect their standing in the community on the basis of allegations not
able to be proven in court. [note #285]
4.32 A major issue in any register that includes
persons on the basis of allegations is the criteria to be used to decide
what allegations, short of conviction, are sufficiently weighty to provide
a basis for entering the subject on the register. The following description
of the Manitoba, Canada, Provincial Child Abuse Registry provides an example
of how one jurisdiction has dealt with this issue.
The grounds for entering names on the Registry are:
1) criminal conviction for child abuse;
2) the court finding that a child is in need of protection on the basis
of abuse (i.e. Family Court), or;
3) a child abuse committee is of the opinion that abuse occurred, based
on the opinion of a duly qualified medical practitioner or psychologist
and other supporting evidence.
In cases under item 3, the department must provide prior notification
to all parties that their names will be registered unless they file
an objection within 60 days. Appeals are heard by the Registry Review
Committee. Provincial officials estimate that one-half of those notified
file an objection, and of those objections, about 50% have been successfully
upheld. It is estimated that approximately ten to twenty percent of
all abuse cases investigated are entered into the registry. [note
4.33 Clearly this system incurs considerable
operating costs in handling objections and appeals. The end result seems
to be that a significant proportion of the entries that are not based
on a court's finding cannot be sustained, and that only a small proportion
of the total allegations result in an entry on the register. This in turn
raises the question of how cost effective such a system is. [note #287]
4.34 In addition to cost-benefit doubts, the
Committee has a major concern whether a system of registry entries based
on allegations can ever be devised that is sufficiently fair to those
whose names are included. Clearly models other than the Manitoba one could
be considered. But all will confront the same inherent problem - trying
to define a sufficient evidentiary basis to place a person on the register
in cases where, by definition, the available evidence falls short of the
criminal standard of proof (if it met this standard, the person could
be prosecuted and then placed on the register following conviction). [note
#288] The closer the standard of proof is to the criminal one, the
greater the number of allegations that will lack the evidentiary basis
to support an entry in the register. This in turn means that the register
will be proportionately less useful in protecting children (assuming that
a significant proportion of those excluded from entry are in fact repeat
child-sex offenders). The lower the standard of proof, the greater the
number of alleged perpetrators who will be eligible to be placed on the
register, and the more biased against alleged perpetrators the system
4.35 While the Committee appreciates the good
intentions behind those advocating a register which includes entries based
on allegations, it does not believe such entries should be permitted.
It regards the risk to the persons against whom allegations are made as
outweighing any benefits their inclusion on a register might achieve. [note #289]
Coping with Use of Computers by Paedophiles
4.36 The Committee noted in the previous chapter
that the evidence suggested that so far paedophiles in Australia were
making only limited use of computers, both as a means of communicating
with like-minded persons and as a means of accessing and distributing
child pornography. In one sense this is not surprising, given that only
a small proportion of Australian homes have the necessary computer and
modem. [note #290] The Committee, however, believes it prudent
to assume that paedophiles' use of home computers capable of linking to
other computers around the world will increase. Computers are becoming
more readily available and "user-friendly" and the proportion
of the population who are "computer-literate" is steadily increasing.
This will create a number of problems for law enforcement agencies, and
of course the problems will not be unique to investigations into paedophile-related
4.37 One issue is whether the police have access
to the skills and equipment necessary to search information in a suspect's
computer. In the case of a paedophile suspect the information might include
child pornography, addresses and correspondence with other paedophiles,
or records of the suspect's sexual activities with children. [note
#291] Even where the user does not attempt to keep the material protected
by secure passwords or in encrypted form, the investigators need to have
the skills and training to access the particular computer software being
used. Where passwords, encryption, and so forth have been used the problem
for investigators becomes much more difficult. In one case for example,
police in Sacramento, California were reportedly unable to decode a list
of fellow paedophiles that a paedophile had in encrypted form on his computer.
4.38 The Committee is of the view that the level
of sophistication of State and Territory police units in detecting computer
transmitted material could be upgraded. For example,
in the case of Western Australia, the Committee was told that the Child
Abuse Unit had only recently gained access to the Internet and officers
were required to gain experience in navigating computer networks in their
spare time! [note #293] Whereas police
told the Committee that they had not experienced difficulties in countering
encryption techniques so far, [note #294]
it is likely that the rapid developments in cheap, easily-used encryption
software will test the ability of even the most sophisticated intelligence
agencies in the world to decrypt files created by such software. [note
#295] It is not possible to tell without decrypting it if an encrypted
file contains a pornographic image of a child or, say, a business message
encrypted for reasons of commercial confidentiality.
4.39 A related issue is the sheer volume of material
that computer disks and CD-ROMs can easily store. This can make any thorough
inspection of seized or suspect material very labour intensive and therefore
expensive, even if is not encrypted or password-protected. As the South
Australian Police explained:
... we have been able to download information, but ... [the issue]
is the time consuming process of having to go through all that material
to identify whether there is anything relating to child pornography
or paedophile activity, given that even when you examine videos, for
instance, quite often the initial footage will be a normal classified
movie. You will then proceed into it and find that the child pornography
et cetera has been inserted. So you have to sit down and watch the whole
video to be able to determine whether there is child pornography there.
Similarly, with downloading material out of a computer, you really have
the process of having to go through all those files, because there is
no classification that is going to stare at you and say, 'This is the
child pornography area,' it will be disguised under code names. So it
becomes very labour intensive. [note #296]
4.40 The Australian Customs Service described
the similar difficulty of inspecting the amount of material that can be
contained on a single CD-ROM, and hence the problems in countering the
possibility that child pornography is being imported by this means. [note
#297] Even if the CD-ROM is identified through intelligence as suspicious,
and even if there is no difficulty due to incompatible software or electronic "locks" in viewing the contents, it is still a very time-consuming
task to view each of the thousands of images which may be on the CD-ROM
and assess whether they come within the applicable definition of child
4.41 The problems identified in the previous
paragraphs arise when the suspect or the suspect material has already
been identified through intelligence of one sort or another. Further difficulties
confront law enforcement agencies if they try pro-actively to identify
whether computers are being used to disseminate child pornography or to
assist in maintaining criminal paedophile networks. At a moderate cost
and using easily-available software and hardware anyone can establish
a computer bulletin board system that can be accessed over telephone lines
from anywhere in the world. There is no requirement in Australia to obtain
any licence or register the system. There is no practical way that police
can be sure that they are aware of all the computer bulletin boards located
in their jurisdiction, let alone all those in other parts of the country
or the world that may be accessed from their jurisdiction by anyone with
a home computer, modem, and appropriate software. There is no practical
way to monitor computer traffic, not least because of the sheer volume
of it. Random searching of computer bulletin boards and other computer
sources of text and images available on-line to the home computer user
is labour-intensive and therefore expensive. It may require specialist
skills that police forces do not currently possess. [note
4.42 While clearly the use of computers by offenders
poses difficulties for law enforcement, it is important not to overstate
them. For example, the impracticality of monitoring everything passing
between computers is in a sense no different to the similar impracticality
of monitoring everything passing through the postal system. Computer links
tend to leave trails that investigators can follow, in a way that the
use of the mail does not - for example phone records where an overseas
bulletin board has been dialled-up, or the subscription list of a bulletin
board providing illegal materials, or the coding identifying the source
which electronic mail systems automatically attach to messages. [note
#299] Computer search software designed to assist those seeking specific
material on the Internet and other networks can also be used by law enforcement
agencies to locate computer sites openly disseminating child pornography.
Computer programs can be devised to assist in searching vast masses of
computer files to, for example, eliminate the ones that do not have the
required size, format and other characteristics to be capable of containing
child pornography images, thereby reducing the number that need to be
examined by the human eye. [note #300]
Filter software being devised to enable parents to prevent their children
accessing pornographic material on-line could be fairly easily redesigned
so that it filters out all non-pornographic material for searching law
4.43 Nonetheless the Committee considers it important
that law enforcement agencies are adequately trained and equipped to combat
the difficulties posed to their investigations by computers. Detective
Chief Inspector David Lusty of the South Australia Police, told the Committee: "from a national perspective, it seems to me somewhat inefficient
if each jurisdiction is going to be involved in that same sort of activity.
It seems to me we are just duplicating our resources". [note #301] The Committee agrees with this view. It
is aware that the National Police Research Unit is doing some research
on behalf of all forces into police use of computer investigation techniques.
[note #302] The Committee considers that this type
of research should be given a greater priority. In doing this, the possibilities
of drawing on the expertise to be found in CSIRO, university computer
science departments and the private sector should be examined.
4.44 The Committee RECOMMENDS that the Minister
for Justice take up with the Australasian Police Ministers' Council the
need to ensure as a matter of priority that all Australian law enforcement
agencies act collectively to equip themselves with the necessary training,
the access to specialist expertise, and the access to specialised software
and hardware tools needed to keep them abreast of actual and potential
use of computers by paedophiles for the purposes of record-keeping, networking
and accessing child pornography.
4.45 The Committee sees no reason why the co-operative
approach in this area should be limited to Australian law enforcement
agencies. The technology involved is international in design and standards,
and the problems faced by law enforcement are much the same in all countries.
Therefore scope exists for Australian agencies to contribute
to and benefit from research and software development done by or for overseas
law enforcement agencies.
4.46 The Committee RECOMMENDS that the Minister
for Justice take steps to ensure that Australian law enforcement agencies
contribute to and draw on the expertise and software tools of overseas
law enforcement agencies.
4.47 One submission argued that there should
be a special unit set up specifically to identify the consumers and purveyors
of child pornography on the computer networks. [note
#303] The Committee sees some merit in this, insofar as it might lead
to a more focused effort and avoid duplication of investigative effort.
However, there may well be administrative difficulties in setting up such
a unit. The same results can, the Committee believes, be achieved by encouraging
police to co-ordinate their pro-active monitoring and investigation of
computer networks and computer bulletin board systems and in the process
share their expertise.
4.48 In addition, the Committee considers that
more could be done by law enforcement agencies to draw on the knowledge
in the wider community about the use of computers to distribute child
pornography and also the means to combat it. For example, many Australians
spend time either for work, hobby or recreational purposes "surfing
in cyberspace". Some will no doubt come across indications that child
pornography is available at a particular computer bulletin board, Usenet
newsgroup or Internet address, or that someone in Australia is seeking
such material. A single Internet e-mail address could be provided for
people to report such occurrences. The address should be extensively publicised
on the Internet and among computer users and desirably have a format that
is easy to remember. Most computer users have no interest in allowing
the systems they use to become vehicles for distributing child pornography.
Provided it is made easy for them to do so, they can be expected to provide
useful information readily and also to cooperate in publicising the e-mail
"hot line" address. [note #304]
4.49 The Committee RECOMMENDS that the Minister
for Justice explore the possibility of establishing a single, well-publicised,
e-mail address accessible through the Internet to which computer users
can report any indications they come across of computer distribution of
4.50 The results of such an e-mail "hotline" would need to be monitored to ensure that it was a cost-effective means
to an end - detecting child pornography on computer links and networks
- and that worthwhile reports were not overwhelmed by trivia,
bogus claims or claims that could not realistically be investigated from
4.51 Suggestions were made to the Committee for
increased use of telephone "hotlines" and well-publicised phone-ins
both as a means of identifying paedophile offenders, [note
#305] and also to act as a check on whether protection is being given
to paedophiles by police or other government agencies. [note
#306] However, the Committee was also told that analysis of the results
in Western Australia from a publicised phone-in held in 1993 (Operation
Paradox) showed that it was not providing sufficient worthwhile information.
Police officers were being diverted from urgent cases already on hand
to investigate matters raised through the phone-in, yet these matters
very seldom led to either an arrest or to finding a child actually in
need of assistance. [note #307]
Adequacy of Resources to Enforce the Child Sex
4.52 As part of the effort to stop Australians
going overseas to countries where child-sex is readily available, the
Parliament enacted the Crimes (Child Sex Tourism) Amendment Act 1994 with effect from 5 July 1994. It provides for the prosecution of Australian
citizens and residents who perpetrate child-sex offences abroad and are
not prosecuted in the country in which the offences are committed. The
legislation also allows prosecution of the promoter, organiser or advertiser
of a child sex tour if they operate from Australia, or have a relevant
link with Australia. The House of Representatives Standing Committee
on Legal and Constitutional Affairs considered the legislation when it
was before the House and commented in its report: [note #308]
The Committee believes that the effectiveness of the legislation is
dependent on the resources committed to investigations and prosecutions.
Unless additional resources are allocated, the objectives of the Bill
will not be met.
4.53 In subsequently introducing the legislation
into the Senate, the Government stated: [note
It is not anticipated that the Bill will occasion any additional costs
to the Government. The costs of any prosecutions will come from the
budgetary allocations for the Australian Federal Police and the Office
of the Director of Public Prosecutions, which will conduct investigations
and prosecutions under the proposed legislation.
4.54 When the Committee held its hearings in
July 1995, no charges had yet been brought under the Crimes (Child
Sex Tourism) Amendment Act 1994. [note
#310] The first charge was laid in late September 1995 in relation
an alleged offence in the Philippines in November 1994. The evidence for
this apparently was discovered when the alleged offender was arrested
for child-sex offences allegedly committed in Australia, rather than as
a result of any investigation directed at the overseas activity. [note
#311] Some have expressed concern that the legislation will not be
seen as credible and therefore have a deterrent effect, until a conviction
occurs under it. [note #312] However, the Committee was told by the
AFP that the legislation was believed to have had some deterrent effect.
[note #313] Whether this effect had been more on the
casual "sex tourist" than the determined paedophile was less
easy to determine. [note #314] The Committee noted that considerable efforts
have been made to publicise the new legislation, particularly to Australian
residents departing for overseas. [note #315]
4.55 The Australian Federal Police Association argued that the AFP needed
more resources and said: "Unless there are some significant successful
prosecutions under the legislation, it runs the risk of eventually being
seen only as posturing". [note #316] One of the AFP representatives
who appeared before the Committee, Detective Commander David Schramm,
was asked if the lack of prosecutions was due to budgetary difficulties,
and he replied:
No; budgetary difficulties are not an issue. Budgetary difficulties
are an issue in law enforcement generally, but they are no bigger an
issue in the investigation of paedophilia than they are in the investigation
of drug trafficking or organised crime. The difficulty is in securing
the evidence. Indeed, our first priority still is to pass the information
to the host country, because we believe we have a responsibility to
ensure that, if people are committing offences in the host country,
then they should be subject to the laws of the host country. That is
our first objective. The fallback is that, if they cannot be prosecuted
there, we would hope to have sufficient evidence that would enable them
to be prosecuted here in Australia. To date, that has not been possible,
but we do have some investigations under way. [note
4.56 Detective Commander Schramm explained that
in Thailand the AFP had 5 officers and their main focus was on drug-related
matters, with about 10 to 15 per cent of their overall working time involving
paedophile matters. He was asked how there could be any hope for successful
paedophile prosecutions with this level of resources. He said that "resources
is not so much the issue. It is the ability and the priority which the
host agency puts on it, because we can do no more than make a request." [note #318] While cooperation with the
law enforcement agencies in the main paedophile-destination countries
was good, those agencies had resource problems, and resource-intensive
surveillance and investigation of visiting paedophiles did not command
a high priority. [note #319]
4.57 Suggestions were made to the Committee that
the Australian Federal Police should be more proactive overseas, mounting
undercover operations to gather evidence against Australian paedophiles. [note #320] The Committee asked the
AFP to respond. It said that its role overseas was purely liaison, and
that it lacked the legal power to operate in this way overseas and it
in any event lacked the resources. [note #321]
4.58 A number of Australian non-government organisations
operate in countries reputed to be the main destinations for Australian
paedophiles seeking child-sex overseas. Either because their work brings
them into contact with the children involved, or through contacts in the
expatriate Australian communities in these countries, the staff of these
agencies may become aware of paedophile offences by visiting or locally-resident
Australians. The Committee asked the AFP if Australian agencies operating
overseas had policies in place to ensure that their staff passed relevant
information on to the AFP. Detective Commander Schramm responded: [note #322]
To the best of my knowledge, I do not think they have a policy, as
such, that their staff are obliged to do it. But, in fact, we do get
information from time to time from aid agencies and the like if they
come in contact with it. ...
Senator TROETH - Right. Would it assist you if Australian aid
and welfare agencies active in those countries had it written into their
charter or their policy that they should inform you if they become aware
of such activity?
Cmdr Schramm - The short answer is yes. I am not sure that writing
it into their contracts would necessarily make them report it.
Cmdr Schramm - I think it is more a case of them being educated
and encouraged that there is somewhere they can go with this. I see
it as very similar to the situation in Australia: if you see an offence
being committed or people doing the wrong thing, you know where to go.
I think it is a case that a lot of people may not be aware that they
can go to the embassy and can talk to a law enforcement officer. That
is the part that needs to be got over to other people.
4.59 The Committee is of the view that the present
arrangements between the Australian Federal Police and its overseas counterparts
in South East Asia need to be reviewed. In particular, of concern, was
the evidence from the AFP that its efforts to enforce the Child Sex Tourism
legislation are hampered by the low priority given to the detection of
offenders by the host police force in Thailand. Accordingly, the Committee
RECOMMENDS that the Government takes steps to improve the arrangements
between the Thai Police and the Australian Federal Police with a view
to improving the detection and prosecution of Australian child sex tourists.
4.60 Additionally, the Committee RECOMMENDS
that the Government take steps to ensure that all its personnel working
overseas in countries believed to be attractive to visiting Australian
paedophiles are made aware that any information that they happen to come
across about the illegal activities of such paedophiles should be reported
to the Australian Federal Police. The Committee further recommends that
similar steps be taken in relation to the personnel of non-government
aid and other organisations funded in whole or in part by the Australian
4.61 The Government might consider making it
a condition of government funding to non-government agencies that their
personnel be told what information ought to be passed to the AFP and the
most appropriate means of doing so from the country to which they are
going. The Committee does not envisage that reporting be made mandatory.
Nor does it suggest that the personnel should be encouraged in any way
to become amateur detectives: they should merely be asked to pass on any
worthwhile information that they happen to come across during the course
of their work and life in the particular country.
4.62 The Committee is concerned with the complaint
by World Vision Australia that the relationship between the Australian
and Cambodian authorities is not sufficient to detect paedophile activities involving Australians
in Cambodia. [note #323] The Committee
RECOMMENDS that the Government seek treaty relationships with the Cambodian
and other South-East Asian Governments to assist in the detection and
obtaining of evidence to enable the prosecution of Australians committing
child-sex offences in those countries.
Providing a Forum for the Exchange of Information
4.63 World Vision Australia suggested to the
Committee that it would be useful if a national task force was created
to bring together the various agencies, both government law enforcement
and child welfare agencies and non-government agencies, whose work brings
them into contact with criminal paedophile activities. [note #324] The Committee considers this a useful suggestion,
although, as World Vision noted, some consideration would need to be given
to the detail of the proposed body's structure and scope.
4.64 Although the Committee has not investigated
the point, its impression is that there is something of a communications
gap between those working at a senior level on the welfare side of child
protection issues and those in law enforcement. [note #325] If this gap does exist, some sort of forum
to assist the two sides to exchange views would be useful.
Protection Given to Offenders by Police or Other
4.65 The Committee noted in paragraph 3.18 above
that paedophile activities, unlike those of traditional organised crime,
do not generate the large cash flow needed to sustain widespread and continuing
corruption of police or others. This is not to say that instances have
not occurred of paedophiles improperly securing official favours. [note
#326] The current Royal Commission into the New South Wales Police
Service is expected to clarify the extent to which corruption has occurred
in that State. [note #327]
4.66 There are unfortunately many cases in which
allegations of paedophile offences are brought to official notice and
yet no one is ever charged or convicted as a result. [note
#328] The Committee has not examined this area in any great depth.
However, there seemed to the Committee to be something of a pattern in
these cases. A person, usually a parent or close relative, became convinced
that a child had been sexually abused. The matter was not investigated
to the complainant's satisfaction when it was reported to either the police,
the relevant child welfare agency, or the alleged perpetrator's employer.
[note #329] The complainant gradually came to the view
that the only explanation for why the matter had not been properly investigated,
or why no charges had been laid, or why the accused was acquitted, was
some sort of corruption by police or officials. Some of the letters and
submissions received by the Committee that described individual cases
showed the difficulty parents of abused children face in coming to terms
with what they regard as most unsatisfactory outcomes from the investigatory
and prosecution process. [note #330]
4.67 There are many difficulties facing investigators
and prosecutors in cases where child sexual abuse is suspected, and hence
many explanations apart from corruption as to why the alleged offender
is ultimately charged or convicted. The New South Wales Independent Commission
Against Corruption has identified some two dozen factors (apart from corruption)
which may adversely affect the investigation and prosecution in a particular
case. [note #331] The Victorian Government's
submission explained: "The offence is almost always committed in
private and there are rarely eye witness accounts to corroborate the victim.
Because the offence is not reported immediately crime scenes afford little
or no forensic corroboration." [note #332]
4.68 The Committee was told by Detective Senior
Sergeant Mike Dean of the Western Australia Police of the difficulties
of finding adequate corroboration for the evidence of children, and of
the great emotion generated which can override common sense in cases in
which child sexual abuse is alleged. He was asked:
CHAIR: So what you are saying is that if there is a failure
to prosecute because of the requirements of corroborative or other similar
evidence with young children, the allegation is made that the police
have not done their job because no prosecution has eventuated -
Det. Snr Sgt Dean: People say it is a lack of communication,
but I have actually sat people down and spoken to them for two hours
and explained why we have done different things. They seemed happy when
they left, but the result was not what they wanted, and I will be answering
a ministerial before the end of the week. I do not think you can change
human nature and you are dealing with human nature and emotion. We get
some bizarre allegations, as I said. Be aware, too, that some of the
offenders are less than stable and the people they live with are less
than stable - and less than intelligent, some of them, too - and that
creates its own problems.
CHAIR: Would you say that much of the allegations about a network
of corrupt police protecting paedophiles against prosecution, is a misunderstanding
of the difficulty of the prosecution process?
4.69 From the information available to it, the
Committee does not believe that official corruption is a likely explanation
for any but a tiny proportion of the outcomes in the cases that do not
result in conviction of the alleged offender. However, it is important
not to be complacent or to ignore the possibility that it might occur
in a particular case. The ICAC interim report noted that the considerable
degree of discretion available to those involved with reporting, investigating
and prosecuting child sexual abuse cases, combined with the number of
agencies that may be involved in any one case, does create opportunities
for corrupt exercise of discretion. The interim report stated: "The
most serious corruption risk in the context of child sexual abuse is the
potential for police officers or agency staff to protect repeat offenders,
or those involved in organised or systematic paedophile activity". [note #334]
Conclusions of the CLER Report - Justified?
4.70 Paragraph (c) of the terms of the Committee's
inquiry asks the Committee to report on whether the Report of the Review
of Commonwealth Law Enforcement Arrangements is justified in the conclusions
it drew regarding organised paedophile networks. These conclusions are
set out in paragraph 1.3 and 1.4 above and they consist of two parts -
a factual description of the state of law enforcement's knowledge and
action regarding organised paedophile activity, and a recommendation that
the subject be added to the National Crime Authority's "menu of work".
4.71 As to the first part, the Committee regards
it as a reasonable summary. It might perhaps be seen as pitched towards
the "worst case" end of the spectrum in that it listed a range
of allegations about the extent of paedophile activity without attempting
to indicate the extent to which they were regarded as sustainable. As
the Committee found when examining these allegations, some of them do
not stand up well under scrutiny. It is also possible to quibble about
the precise wording in places. For example, although the Review states
that paedophile networks "have not been the subject of proactive
law enforcement", [note #335] there
has in fact been some. [note #336] Similarly
it is not entirely correct for the Review to say
that "the extent of the networks and their activities remain unknown". [note #337] Both the various police forces and the
Australian Bureau of Criminal Intelligence have relevant information,
although it is true that at the time the Review reported (February 1994)
it had not all been put together into a detailed national assessment.
It is also true that the state of police knowledge has improved since
the Review reported. [note #338]
4.72 The second part of the Review's conclusions
- that organised paedophile activity should be added to the Authority's "menu of work" - is perhaps more questionable. As noted in paragraph
4.7 above, the Committee does not believe its own findings support the
Authority's continued involvement with assessing or investigating organised
paedophile activity. It anticipates that the strategic intelligence assessment
being done by the Authority will come to a similar conclusion. However,
in fairness to the Review, this is to be wise after the event - after
the extent of organised paedophile activity has been examined.
Peter Cleeland, MP
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232. The Association of Children's Welfare Agencies
also drew the Committee's attention to the need to balance expenditure
on detection with the resources allocated to prevention activities: Evidence,
233. Evidence, p. 189.
234. Parliamentary Joint Committee on the NCA,
Hansard of Committee meting with the NCA, 11 August 1995, p. 247.
235. See Evidence, p. 143 (Commander David Schramm,
Australian Federal Police):
... the NCA has normally played a role where there has been a need
for operational coordination in a cross jurisdictional sense. At this
stage, from AFP's intelligence in the investigations, there does not
seem to be a requirement for organised cross border investigations.
I say that in the knowledge that the NCA assessment of the situation
is yet to be produced. I think it would be wise to wait for the outcome
236. Australian Customs Service told the Committee
that as the law currently stood it had no jurisdiction over the import
of child pornography (or anything else) by means of electronic transmission
from overseas. The legislation under which it operated referred only to
the physical importation of goods: Evidence, p. 165.
237. Evidence, p. 22. Note that problems may also
exist over sharing of information within a particular police force or
agency. See I.D. Hopley, "Advances in Combating Child Sexual Abuse
in Victoria", Victoria Police, Melbourne, 1994, p. 28 referring to
the Victoria Police: "The lack of information sharing between the
CEU and divisional CIB offices has been a constant source of concern ...".
238. Evidence, p. 131.
239. Evidence, p. 59-60, pp. 68-70 (South Australia
Police); pp 80-81 (Western Australia Police); pp. 116-17 (Victoria Police);
pp. 183-85 (Australian Customs Service); pp. 212-13 (Queensland Police).
The submission from the Northern Territory Government and Police, 9 March
1995, p. 3 made a similar point. But contrast Evidence, p. 24 (End Child
Prostitution in Asian Tourism): "there seems to be a great deal of
competition existing between the different police forces, both on a state
and national level".
240. See for example, Evidence, p. 60 (South Australia
Police), where the officer was asked whether Customs would tell the relevant
South Australian police if Customs detected child pornography at Adelaide
airport. The response was:
They certainly would now in the sense that we have got a specific operation
that is dealing with paedophiles, and out of that operation we have
been able to establish a lot closer contacts with the various groups
that are able to feed information in to us. Prior to the establishment
of that group, it was probably a bit hit and miss as to whether the
information was transferred, and if it was transferred, whether it was
picked up by anyone to actually investigate it.
241. As a result of US Customs Service and Danish
police action, computer bulletin boards disseminating child pornography
from Denmark were shut down in 1993. The names of Australian subscribers
were found in the records of the Danish operators and passed on to Australian
authorities, and follow-up investigations in Australia appear to have
led to charges and convictions in at least two cases. "Porn peddlers
hit infobahn", West Australian, 11 April 1995, p. 15. See
also letter to the Committee from W.B. Biondi, Assistant Commissioner,
US Customs Service, 29 March 1995, p. 1: "We have also provided information
on Australian suspects [involved in receipt of child pornography via international
computer bulletin boards] to both the Australian Customs Service and Australian
Federal Police". Police in the United Kingdom were able to identify
local offenders as a result of information passed from same US/Danish
investigation: UK, House of Commons, Home Affairs Committee, Computer
Pornography, 9 February 1994, p. 70 (memorandum from the Greater Manchester
Police). See also "Computer porn 'library' seized at university",
Times (London), 15 April 1994, p. 5, which describes how, in another
case, US federal investigators working in Kentucky hacked into a computer
in Birmingham, England being used to disseminate adult and child pornography
on a not-for-profit basis. The US investigators passed the information
to the UK police who seized the material.
242. Evidence, p. 59.
243. Evidence, p. 71 (South Australia Police).
244. Evidence, p. 131. See also Evidence, pp. 59-60
(South Australia Police):
We have got situations in some states where you have nominated personnel
to investigate these types of offences. Other states have not. Unless
you have got designated investigators, there tends to be a reluctance
in some areas to transfer information, or who do you give it to in the
See similarly Evidence, p. 212 (Queensland Police): "... formal
liaison between the states is probably one of the better ways to go ..."
in improving the exchange of information. See also I.D. Hopley, "Advances
in Combating Child Sexual Abuse in Victoria", Victoria Police, Melbourne,
1994, p. 28 on inter-agency sharing of information: "Unfortunately,
from time to time, such networks can be a person-to-person contact with
no formalised information-sharing arrangement in place hence, when one
of the parties transfers from the unit, such information sharing can be
245. Evidence, p. 142.
246. Evidence, pp. 131-32, 144.
247. Evidence, p. 144.
248. Evidence, p. 223.
249. NSW, Independent Commission Against Corruption,
Interim Report on Investigation into Alleged Police Protection of Paedophiles,
Sydney, September 1994, p. 28.
250. Evidence, p. 15.
251. Evidence, p. 22.
252. See M. Hames, "Child Pornography - A
Secret Web of Exploitation", paper delivered at the International
Conference on the Problem of Pornography, Manila, 17-20 January 1995,
pp. 3-5 on the value to investigators of looking for child pornography
when investigating allegations of child sexual abuse and following up
on any material found. In one United Kingdom case he cited as an example,
police seized a video in Kent which depicted a man sexually abusing a
child. The investigators were able to follow this up and trace the man
depicted to Nottingham and successfully prosecute him.
253. Evidence, pp. 68-69.
254. Some of the information on this point was
received in confidence, but see Evidence, p. 85 (Western Australia Police).
255. See for example a case in which authorities
in January 1992 raided a small-scale (gross sales US$20,000 pa) mail-order
service in Iowa offering, amongst other things, child pornography. They
took over and covertly ran the business for two years, in order to obtain
evidence for the prosecution of individual customers and to acquire information
about underground child pornography distribution. See "'Sting' leads
to porn arrests", Des Moines Register, 20 January 1994, pp.
M1, M6. More recently, FBI agents have adopted a number of different undercover
roles on computer on-line networks, including posing as children and waiting
to be propositioned by adults or posing as adults seeking child pornography.
As a result of these undercover investigations, the FBI found that adults
were using computer links to seek out minors for sexual encounters, and
the links were being regularly used to transmit sexually explicit images
of juveniles: see "Computer Stings Gain Favour As Arrests for Smut
Increase", New York Times, 16 September 1995, pp. A1, A8.
256. See for example Jacobson v United States
112 S.Ct. 1535 (1992) in which the US Supreme Court reversed a conviction
for receiving child pornography through the mails on the basis of entrapment.
The person convicted had been the subject of repeated attempts over two
and a half years by law enforcement officers operating through a bogus
pen-pal and five fictitious organisations which mailed catalogues, sexual
interests questionnaires and club membership applications, all in an endeavour
to get him to indicate an interest in receiving child pornography, and
ultimately, successfully, into ordering some. For critical comment on
the reverse sting strategy, see for example the editorial "Entrapment
Out of Control", New York Times, 8 April 1992 and William
Safire's "The Stingers Stung", New York Times, 13 April
1992, p. A19.
257. See for example, L.A. Stanley, "The Child
Porn Myth", Cardozo Arts and Entertainment Law Journal, vol.
7, 1989, at p. 334 referring to claims that child pornography sting operations
lead to the uncovering of cases of child sexual abuse:
A review of over one hundred newspaper articles from 21 states [in
the USA], national press and wire service reports, numerous case files,
and conversations with numerous defense attorneys, failed to yield more
than a handful of cases of actual evidence of abuse uncovered in sting
operations. Prosecutorial posturing of this type is common in this particular
area of law enforcement.
258. See for example the letter to the editor from
D. Mihalko, US Postal Service, Washington Post, 4 May 1992, p.
A22, describing the year-long Operation Looking-Glass by the Postal Inspection
Service in 1987-88. "As a result of our program [Looking-Glass] 161
people were prosecuted, 35 instances of child molestation were uncovered
and hundreds of children were protected from being sexually molested and
abused." See also "Customs Service Leads War on Child Pornography",
Washington Post, 9 August 1986, p. A8: the head of the US Customs
Service's Child Pornography and Protection Unit reported as saying that
in more than half the child pornography cases investigated by the Unit
evidence had been found that the suspect was an active paedophile.
259. Another difficulty in using covert operations
in child-sex cases is the necessity for immediate intervention if a child
is in danger: see paragraph 4.6 above. A constraint on the use of "sting"
operations is the discretion possessed by the courts to exclude evidence
of criminal conduct where that conduct has been brought about by the actions
of law enforcement officers: see Ridgeway v The Queen, (1995) 69
ALJR 484 (High Court).
260. Compare the argument of Claude Forell, "Child
pornography ban is not all that simple", Age, 29 April 1992,
p. 13, made in the context of discussing legislation making possession
of child pornography illegal: "So it is crucially important to concentrate
on the combatting the real evil - the sexual abuse of children - rather
than to be distracted by one of the symptoms [child pornography] ...".
261. It seems that there is considerable variation
in the procedures and requirements among the States and Territories. See
Evidence, pp. 90-92 (Western Australia Police) for how the Western Australia
Police assist in screening checks and the view that the screening system
has gaps in it. See also Evidence, pp. 117, 118 (Victoria Police), p.
219-20 (Queensland Police).
262. Evidence, p. 5.
263. Evidence, p. 14.
264. Submission from National Association for Prevention
of Child Abuse and Neglect, 29 March 1995, para. 4(b); Evidence, p. 7.
265. Evidence, p. 6.
266. Evidence, pp. 6, 8-9. D. Finkelhor and others,
Nursery Crimes: Sexual abuse in daycare, Newbury Park, N.J., 1988
was cited in support of this point.
267. Evidence, p. 11.
268. Evidence, p. 26 (End Child Prostitution in
Asian Tourism); pp. 44-45, 52 (World Vision Australia); p. 100 (Victims
of Crime Assistance League).
269. Combating Child Sexual Assault: An Integrated
Model (First Report upon the Inquiry into Sexual Offences Against
Children and Adults), Melbourne, May 1995, p. 260.
270. ibid., p. 263.
271. Evidence, pp. 139-40. See also p. 63 (South
Australia Police): register "could provide a false sense of security
to some people".
272. Submission from End Child Prostitution in
Asian Tourism, 22 February 1995, p. 4.
273. Submission from National Association for Prevention
of Child Abuse and Neglect, 29 March 1995, para. 5: current Western Australian
law allows for expungement after 10 years.
274. Evidence, p. 11 (National Association for
Prevention of Child Abuse and Neglect). But compare Evidence, p. 91 (Western
Australia Police): the expungement of criminal records legislation "has
been abused, but in the majority of instances, it has not been abused".
The South Australian Police pointed out (Evidence, p. 71) that some who
commit child-sex offences are not paedophiles, but are persons who just
happened to commit the one opportunistic offence (see the distinction
the Committee draws between preferential and situational child molesters
in para. 2.11 above). This raises the issue of whether the opportunistic
offender is to be denied the benefits of expungement, even though, by
definition, he or she has no life-long propensity to offend.
275. See for example Crimes Act (Cth) 1914,
s. 85ZM(2)(b) which provides that the regime does not apply to convictions
for which the sentence was more than 30 months imprisonment and s. 85ZZH(e)
and (f) which provide that the regime does not apply to disclosure of
convictions for sexual offences or offences in which the victim was under
18 years old where the disclosure is in relation to the suitability of
the person convicted to be involved in the care, instruction or supervision
276. cf. J. Knowler, "Living down the past:
Spent convictions schemes in Australia", Privacy Law & Policy
Reporter, vol. 1(6), August 1994, p. 105: "Australia has what
has been described as a potpourri of legislation dealing with spent convictions
...", and pp. 117 and 119: schemes exist under Commonwealth legislation
and under the legislation of New South Wales, Queensland, Western Australia
and the Northern Territory.
277. For example the Office of the Privacy Commissioner
wrote to the Committee, 3 October 1995, to point out that the Commonwealth
spent convictions legislation represented a careful balance between the
competing considerations, and that this balance could be put at risk by
a national paedophile register.
278. See "Senate Votes Bill to Register Sex
Offenders", New York Times, 25 May 1995, p. A16: "Forty
three states [in the USA] have set up a registry system, and 25 have some
form of community notification". For calls in South Australia for
a similar system to notify residents that a sex offender is living in
their community see "Paedophile fears after man jailed", Advertiser,
22 December 1994, p. 8; "Paedophile struck while free on bond",
Advertiser, 31 January 1995, p. 6.
279. See for example "'Sexual Predators' Finding
Sentence May Last Past Jail", New York Times, 27 February
1995, pp. A1, A8. See also "Mix-Ups and Worse Arising form Sex-Offender
Notification", New York Times, 12 January 1995, pp. B1, B6:
a mistake in an address on the register led to the totally innocent residents
being harassed by neighbours, and in another case vigilantes got the correct
address but attacked the wrong person when they called at the house. Notification
laws have also been criticised in the US on other grounds: see "Sex-Offender
Notification Laws Facing Legal Hurdles", Los Angeles Times,
8 August 1995, p. A5 quoting the director of the New Jersey Civil Liberties
Union: "Besides creating a climate of ugly vigilantism, community
notification laws cause compulsive sex offenders to run from family, avoid
treatment and seek the safety of anonymity by hiding out, thus subjecting
the public to even greater risk".
280. "Senate Votes Bill to Register Sex Offenders",
New York Times, 25 May 1995, p. A16: "... there has been a
wave of legal challenges to the laws". See generally J.A. Houston,
"Sex Offender Registration Acts: An Added Dimension to the War on
Crime", Georgia Law Review, vol. 28, 1994, p. 729.
281. However, if the register results in a reduction
in offences, this will produce a saving in investigation and prosecution
costs, not to mention the obvious non-monetary benefits to the children
who would otherwise have been the victims of the recidivist offender.
282. Evidence, pp. 61-62 (South Australia Police),
p. 91 (Western Australia Police), p. 118 (Victoria Police), pp. 137-38
(Australian Federal Police). Det. Snr Sgt. Daniel Mahon of the Queensland
Police told the Committee he saw a need for such a national register,
but thought the concept "would need a lot of investigation before
being established": Evidence, p. 212.
283. Evidence, pp. 186-87 (Association of Children's
Welfare Agencies): "We would be of the view that such a register,
going beyond convictions, is fraught with difficulty"; and the submission
from the Australian Council for Civil Liberties, 2 August 1995, p. 2.
the Commonwealth Privacy Commissioner, 3 October 1995, p. 2, commenting
on the suggestion that the register include allegations stated: "to
collect allegations of sexual abuse goes against principles of natural
284. See M. Goode, "The Politics of Child
Sexual Abuse and the Role of the Criminal Law", Criminal Law Journal,
vol. 13(1), 1989, pp. 31-49 for the general argument that the desire to
protect children has in some respects been allowed to outweigh the need
to ensure that those against whom allegations are made are treated fairly,
and at pp. 36-37 for references to cases of false accusations. See similarly
Ronald Conway, "Perjury can be child's play", Australian,
27 April 1995, p. 11:
Yet despite contrary clinical knowledge, there is a significant, even
obstinate, conviction among many social workers and community service
officials that child-sex abuse in Australia is almost epidemic, that
the testimony of children should invariably be believed and that the
onus of disproof should lie mainly with the accused person ...
See also the figures in paragraph 2.24 above on the number of
"unsubstantiated" cases arising from the total number reported
285. cf. Evidence, p. 140 (Australian Federal Police)
where reference is made to the present constraints imposed by administrative
law on police disclosing mere allegations if the result may be that the
subject of the allegations is denied employment.
286. The Federal Ad Hoc Interdepartmental Working
Group on Information Systems on Child Sex Offenders, Health Canada, Justice
Canada, and the Ministry of the Solicitor General, "Information Systems
on Child Sex Offenders: A Discussion Paper", Ottawa, 16 May 1994,
287. See for example Evidence, p. 62 where Det.
Chief Insp. David Lusty of the South Australia Police, when the Committee
put the Manitoba system to him for comment, expressed doubts as to whether
it would be a cost-effective solution. See also Valmonte v Bane
18 F.3d 992 (2nd Cir. 1994) where the court found unconstitutional a New
York State registry system. Names were entered on the register if Department
of Social Services officials investigating allegations found "some
credible evidence" to support them. Administrative procedures allowed
those entered on the register to challenge the entry. The Court commented:
"The fact that only 25% of those on the list remain after all administrative
proceedings have been concluded indicates that the initial determination
made by the local DSS is at best imperfect" (p. 1004).
288. In the Manitoba system described above, if
a person objects to their name being on the register, "the agency
has the burden of proof on the balance of probabilities" of showing
that the entry should remain on the register: Statutes of Manitoba,
C.80 (Child and Family Services Act), s. 19.2(5). See also Valmonte
v Bane 18 F.3d 992 (2nd Cir. 1994) referred to in the previous footnote,
where the standard of proof was merely "some credible evidence".
The possible unfairness to the accused of such a low standard of proof
met with criticism from the court (pp. 1004-05).
289. There is a separate practical difficulty with
including names based on allegations. The Committee was told that the
value of a register that does not include fingerprint records on its subjects
is somewhat limited, due to the relative ease with which people can alter
their names: Evidence, p. 90-91 (Western Australia Police) and see also
Evidence, pp. 117-18 (Victoria Police), where the resource implications
of fingerprint checks were also noted. Legislation would be required to
force persons against whom allegations had been made to provide their
fingerprints. Those being subject to pre-employment screening would also
have to provide a copy of their fingerprints.
290. A recent survey found that ten per cent of
Australian homes now have computers and modems enabling them to access
the Internet and other on-line services: "PC ownership increases",
Australian, 27 September 1995, p. 3. In addition, many Australians
can use the necessary computer equipment through their workplace, educational
institution, etc although this may substantially increase the risk of
detection if they do so for illegal purposes such as distributing child
291. See for example "The F.B.I. sting operation
on child pornography raises questions about encryption", New York
Times, 25 September 1995, p. C5: "... there is no denying that
child pornographers use data encryption to keep co-workers, family members
and police from discovering their secrets".
292. "US: Government tries to balance computer
security, privacy", AAP News, 19 April 1995. For another case see
"New Puzzle: High-Tech Pedophilia", Los Angeles Times,
5 March 1993, p. B3: police seized hundreds of computer disks and 5 computers
in a raid and a police spokesman said: "Lots of the stuff requires
passwords and we can't get into it" and outside expertise had to
293. Evidence, p. 89 (Western Australia Police).
294. Evidence, p. 67 (South Australia Police),
pp. 87, 89 (Western Australia Police), p. 121 (Victoria Police).
295. It seems that the US Federal Bureau of Investigation,
despite all its in-house resources, routinely seeks outside expertise
to assist in decryption of material encountered in child pornography investigations.
"The F.B.I. sting operation on child pornography raises questions
about encryption", New York Times, 25 September 1995, p. C5:
a private firm used by US law enforcement agencies, including routinely
by the FBI, stated "We are involved in a couple of jobs a week resolving
some kind of child pornography investigation". Another expert quoted
in this article noted that in some cases the agencies were not successful
in their attempts to decrypt seized material.
296. Evidence, pp. 67-68.
297. Evidence, p. 166.
298. The US Customs Service told the Committee
it had developed a good working relationship with a computer technology
group that had developed a computer program to search a bulletin board
for child pornography: letter to the Committee from W.B. Biondi, Assistant
Commissioner, US Customs Service, 29 March 1995, p. 2. See also "Canada's
Thought Police", Wired, vol. 3(3), March 1995, p. 92 criticising
police raids in Toronto on the home of a hobbyist computer bulletin board
operator allegedly distributing child pornography:
They had allegedly found him through a civilian hired by the police
as a consultant in their efforts against dirty BBSes. This "consultant"
logged in to about 30 boards around metropolitan Toronto over several
months. Nine, including The Out House, were chosen as targets.
299. It is possible to route e-mail and other messages
via what are called anonymous remailers. These take incoming messages
with the destination address formatted in a specific way, remove the elements
identifying the source address, replace them with the remailer's identifying
elements, and forward the messages to their final destinations. However,
it may be possible for law enforcement to access the remailer's computer
log records, and thus still trace an offending message back to its original
300. See for example, "Fears over Internet
privacy", South China Morning Post, 10 January 1995, p. T3:
search software was used in Singapore to scan users' files held by an
Internet access provider for ones capable of holding pornography.
301. Evidence, p. 67.
302. Australian Police Ministers' Council, National
Common Police Services Annual Report 1993-94, AGPS, Canberra, 1994,
303. Submission from the Women's International
League for Peace and Freedom (Australian Section), 8 March 1995, pp. 3-4.
304. cf. the on-line "neighbourhood watch"
program run by America Online, a large private network in the US: "FBI
raids on-line child porn", San Francisco Examiner, 14 September
305. Evidence, p. 25 (End Child Prostitution in
Asian Tourism); submission from Victims of Crime Assistance League, 10
March 1995, p. 2.
306. Submission from the Women's International
League for Peace and Freedom (Australian Section), 8 March 1995, p. 4.
307. Evidence, pp. 82-83 (Western Australia Police).
308. Advisory Report: Crimes (Child Sex Tourism)
Amendment Bill 1994, May 1994, para. 1.3.3.
309. Senate, Hansard, 30 June 1994, p. 2484.
310. Evidence, pp. 134, 149 (Australian Federal
311. "Man on first child sex tour charge",
Telegraph-Mirror, 28 September 1995, p. 3.
312. See for example, Evidence, p. 47 (World Vision
313. Evidence, pp. 149-50 (Australian Federal Police).
See also "Ending the sex tours", Sydney Morning Herald,
23 June 1995, p. 17: Minister for Justice, Hon D. Kerr, confident the
legislation had established a considerable deterrent. Contrast Evidence,
pp. 229-230 (Australian Federal Police Association): there is no evidence
on whether the legislation has had a deterrent effect.
314. See for example, "Meat Market",
Australian, 12 April 1995, p. 13, where Australian aid worker David
Morgan is reported as saying that "it is no longer common for the
18 to 35-year-old footballers or backpackers to boast about their exploits
in bars", but many long-term abusers have gone underground. See similarly
"Ending the sex tours", Sydney Morning Herald, 23 June
1995, p. 17, where AFP Det. Superintendent Paul Kirby is quoted as saying
"But I'm inclined to think that the real paedophiles are just being
more cautious about their activities and going to ground. ... I think
the act has probably had a real effect on the casual sex tourist ...".
315. Both End Child Prostitution in Asian Tourism
and the Australian Customs Service provided the Committee with copies
of their leaflets publicising the legislation and the harm caused by child
316. Submission from the Australian Federal Police
Association, 31 March 1995, p. 7. See also Evidence, pp. 230, 234-35 (Australian
Federal Police Association).
317. Evidence, pp. 134-35.
318. Evidence, p. 155.
319. Evidence, pp. 133 (in Thailand, only 10 of
the roughly 300,000 police were involved in paedophile investigations),
134, 135-36, 148, 154-56.
320. Evidence, pp. 30-33 (End Child Prostitution
in Asian Tourism).
321. Evidence pp. 133, 152.
322. Evidence, pp. 141-42.
323. Evidence, pp. 49-50.
324. Supplementary submission from World Vision
Australia, 9 August 1995, p. 1.
325. See Evidence, p. 26 (End Child Prostitution
in Asian Tourism): need for police to work more closely with welfare groups.
326. See for example, the submission from the Australian
Federal Police Association, 31 March 1995, p. 10:
We are unaware of any specific instances where police and other government
agencies have given protection to child sex offenders. However, as child
sex offenders are found in all levels of society and seek employment
in occupations with access to children, it is highly probable that this
327. For the outcome of an earlier investigation,
see NSW, Independent Commission Against Corruption, Interim Report
on Investigation into Alleged Police Protection of Paedophiles,
Sydney, September 1994, p. 6:
Operation Gull ... arose out of a proactive Internal Police Security
Unit (IPSU) operation into the activities of police officers in the
Kings Cross area. The objective of the operation, as set out in its
Terms of Reference, was to "establish if members of the NSW Police
Service are involved in corrupt practices/activities with paedophiles
in this State, and, if so, take appropriate action". Gull commenced
in January 1991 and its investigation team subsequently identified and
investigated 33 separate allegations against police officers. As a result,
a number of police were charged with a variety of offences.
328. For example, of the 112 cases investigated
by the Victoria Police Child Exploitation Unit in 1993-94, a total of
47 offenders were charged and only 40 proceeded to court, and of those
less than half resulted in a conviction: Victoria, Parliament, Crime Prevention
Committee, Combating Child Sexual Assault: An Integrated Model
(First Report upon the Inquiry into Sexual Offences Against Children and
Adults), Melbourne, May 1995, p. 58. Similarly, J. Cashmore, "The
Prosecution of Child Sexual Assault: A Survey of NSW DPP Solicitors",
Australian and New Zealand Journal of Criminology, vol. 28, 1993,
p. 39, states: "The conviction rate for child sexual assault matters
(38%) is somewhat lower than that for offences overall (around 45%) but
this is not surprising given the difficulty of proving child sexual assault
allegations, especially when the main evidence is the testimony of the
child". A National Association for Prevention of Child Abuse and
Neglect report in South Australia found that in 1993-94, less than 5 per
cent of cases of child abuse involving children under seven resulted in
a conviction, and one of those sponsoring the study said: "Every
paedophile in Adelaide knows that if you abuse anyone under seven you'll
go for a walk (free)" - "Child abusers 'escape justice'",
Advertiser, 5 September 1995, p. 3.
329. The Committee, for example, received a number
of claims that State Education Departments had responded to allegations
that a teacher was molesting children by merely transferring the teacher
to another school.
330. See also C.C. Haase and others, "Non-Familial
Sexual Abuse: Working with Children and their Families" in R.K. Oates
(ed.), Understanding and Managing Child Sexual Abuse, Sydney, 1990
pp. 178-201 on the problems experienced by the parents of the victims
of child sexual abuse. At p. 194 the authors note:
The anxiety and frustration most parents feel about the investigation
and criminal prosecution of the perpetrator is a frequent theme. Parents
are eager to pursue prosecution but very apprehensive of having their
child testify. ... When the case cannot be prosecuted, when families
are not informed or included in decisions, or when the case is unsuccessful,
families feel revictimised by the legal system. Some families find this
harder to cope with than the sexual abuse. It seems to magnify the powerlessness
and vulnerability they feel.
331. NSW, Independent Commission Against Corruption,
Interim Report on Investigation into Alleged Police Protection of Paedophiles,
Sydney, September 1994, pp. 9-16.
332. Submission from the Victorian Government,
22 March 1995, p. 15.
333. Evidence, p. 97.
334. NSW, Independent Commission Against Corruption,
Interim Report on Investigation into Alleged Police Protection of Paedophiles,
Sydney, September 1994, p. 28.
335. Report of the Review of Commonwealth Law
Enforcement Arrangements, AGPS, Canberra, February 1994, para. 4.73.
336. A well-publicised example was the work in
1982-86 of the Victoria Police Delta Task Force, including its infiltration
of the attempt to establish a Melbourne branch of the Australian Paedophile
Support Group in 1983: see para. 3.11 above. See also "Court told
of bugging in paedophilia probe", Courier-Mail, 4 April 1990,
p. 5 for a report of an undercover operation by Queensland Police to infiltrate
a suspected paedophile group; and "Police stalk child-sex tour group",
Sunday Herald, 22 July 1990, p. 5 for a similar operation by Victoria
Police. More recently, the Victoria Police Child Exploitation Unit has
carried on the pro-active role of the earlier Delta Task Force: see I.D.
Hopley, "Advances in Combating Child Sexual Abuse in Victoria",
Victoria Police, Melbourne, 1994, p. 8.
337. Report of the Review of Commonwealth Law
Enforcement Arrangements, AGPS, Canberra, February 1994, para. 4.73.
338. See for example, Evidence, p. 132 where the
Australian Federal Police said that its state of knowledge on paedophile
networks in 1995 was much better that it was when it produced an assessment
on the topic in 1992.