Chapter 4

ORGANISED CRIMINAL PAEDOPHILE ACTIVITY
A Report by the Parliamentary Joint Committee on the National Crime Authority
Table of Contents

Chapter 4

Adequacy of Police Resources, Role of the NCA, and Other Matters

Introduction

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 responded:

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 case.

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.

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 police.

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 #264]
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 #266]
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. [note #267]

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. [note #280]

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 stringently assessed.

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. [note #283]

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 #286]

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 will be.

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 matters.

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. [note #292]

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.

... 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 pornography.

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 #298]

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 enforcement officers.

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 child pornography.

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 Australia.

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 Tours Legislation

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 #309]

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 #317]

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.

Senator TROETH - Yes.

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 Government.

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 Government Agencies

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: You are quite right.

CHAIR: Without an understanding of the difficulties involved with evidence.

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?

Det. Snr Sgt Dean: Yes. Very much so. [note #333]

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

Chairman

[Return Table of Contents]

NOTES

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, p. 194.

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 of that.

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 first place.

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 lost".

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 of children.

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. A letter to the Committee from the Director, Privacy Policy, Office of 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 justice".

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 in 1993-94.

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, pp. 9-10.

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 pornography.

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 be sought.

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 source.

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, p. 138.

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 1995.

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 Police).

311. "Man on first child sex tour charge", Telegraph-Mirror, 28 September 1995, p. 3.

312. See for example, Evidence, p. 47 (World Vision Australia).

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 sex tourism.

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 is occurring.

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.

Chapter 4

ORGANISED CRIMINAL PAEDOPHILE ACTIVITY A Report by the Parliamentary Joint Committee on the National Crime Authority Table of Contents

Chapter 4

Adequacy of Police Resources, Role of the NCA, and Other Matters

Introduction

Information Sharing among Law Enforcement Agencies

More Effort into Following up Links and a More Pro-active Approach

National Register of Paedophiles?

Coping with Use of Computers by Paedophiles

Adequacy of Resources to Enforce the Child Sex Tours Legislation

Providing a Forum for the Exchange of Information

Protection Given to Offenders by Police or Other Government Agencies

Conclusions of the CLER Report - Justified?

NOTES

ORGANISED CRIMINAL PAEDOPHILE ACTIVITY
A Report by the Parliamentary Joint Committee on the National Crime Authority
Table of Contents