On 1 August 2019 the Senate referred the provisions of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 5 September 2019.
This followed a recommendation of the Selection of Bills Committee, which noted that the bill should be referred to allow 'further investigation into the legislation'.
Conduct of the inquiry
Details of the inquiry were advertised on the committee's website. The committee received 12 submissions. These are listed on the committee's website and at Appendix 1. The committee held one public hearing on 27 August 2019 in Canberra. Witnesses who appeared at the hearing are listed at Appendix 2.
The committee thanks all submitters and witnesses for their participation in this inquiry.
Note on references
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
Objectives of the bill
The bill seeks to protect children from sexual exploitation by improving the Commonwealth framework of offences relating to child abuse material, overseas child sexual abuse, forced marriage, failure to report child sexual abuse and failure to protect children from such abuse.
The bill would implement a number of recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) as well as propose a 'suite of child protection measures to target child exploitation that occurs both overseas and in Australia, enhancing investigation and prosecution outcomes at the Commonwealth level'.
In his second reading speech the Hon Peter Dutton MP, Minister for Home Affairs, noted that the bill will increase the protection of children by:
responding to key recommendations from the Royal Commission; and
addressing operational difficulties faced by the Australian Federal Police, Australian Border Force and Commonwealth Director of Public Prosecutions in investigating and prosecuting new trends in child abuse.
To achieve its objectives, the bill would amend the Criminal Code Act 1995 (Criminal Code), the Customs Act 1901 (Customs Act), the Crimes Act 1914 (Crimes Act), the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979.
Key provisions of the bill
The bill comprises seven schedules. The key provisions are set out in the following sections.
Schedule 1 – Failure to protect children from, or to report, child sexual abuse offences
Schedule 1 would insert two new offences into the Criminal Code.
First, the bill would introduce a new offence for a Commonwealth officer who negligently fails to reduce or remove the risk of a child under their care, supervision or authority being sexually abused, if it is part of their actual or effective responsibilities as a Commonwealth officer to reduce or remove that risk.
Second, the bill would introduce a new offence for failing to report a child sexual abuse offence. Under this offence, a Commonwealth officer who exercises care or supervision over children would be guilty of an offence if:
they know of information that would lead a reasonable person to believe or suspect that another person has or will engage in conduct in relation to a child that constitutes a child sexual abuse offence, and
they fail to disclose that information as soon as practicable to a police force or service of a state or territory or the Australian Federal Police.
Schedule 2 – Preventing the possession of child-like dolls
Schedule 2 of the bill would amend the Criminal Code to criminalise the possession of a child-like sex doll. Provisions in Schedule 2 would also, consequential to the expansion of the term ‘child abuse material’ in Schedule 7, make a child-like sex doll ‘child abuse material’ for the purposes of the Criminal Code and the Customs Act.
Schedule 3 – Possession or control of child abuse material that has been sourced using a carriage service
The bill would insert a new offence into the Criminal Code for the possession or control of ‘child abuse material’ in the form of data held in a computer or contained in a data storage device that was obtained or accessed via a carriage service. While existing offences criminalise other online dealings in child abuse material (including transmitting, accessing, distributing and soliciting material, and possessing child abuse material with the intention to deal with it over a carriage service) the new offence captures the act of possessing child abuse material obtained through a carriage service (such as the internet). This would ensure that possession itself is captured under Commonwealth criminal law.
Schedule 4 – Strengthening laws for overseas persistent child sexual abuse
Schedule 4 would strengthen existing laws for overseas persistent child sexual abuse by reducing the difficulties associated with distinguishing particular occasions of offending from repeated and regular child sexual abuse.
Currently, criminalised persistent sexual abuse of a child overseas requires proof of at least three underlying occasions of abuse overseas against the same child over any period of time. This existing offence, at section 272.11 of Criminal Code, carries a maximum penalty of 25 years’ imprisonment. The bill would lower the minimum number of underlying occasions of abuse from three to two.
Schedule 5 – Expanding the definition of forced marriage
Schedule 5 would strengthen the forced marriage offences in the Criminal Code to increase the protections available for children against this form of exploitation.
Currently, a marriage is considered to be forced if it is entered into without consent, which must be full and free, and given without coercion, deception or threat. The explanatory memorandum states that in practice, this has meant that prosecuting forced marriage offences involving children is difficult:
Operational experience has shown that the majority of child victims have, on their own evidence, clearly demonstrated that they understood the nature and effect of the marriage ceremony, which is commonly expressed as resulting in an exclusive commitment for life, a sexual relationship, co‑habitation and children. Paired with many victims’ reluctance to give evidence against their own family or community members, the offences as currently drafted have made it difficult to prosecute forced marriage offences involving child victims.
To address this, the bill would expand the definition of forced marriage to explicitly include all marriages involving children under 16 years. The explanatory memorandum explains that by explicitly criminalising underage marriages, the bill would reduce the need to call on already vulnerable children to give evidence in court.
Schedule 6 – Restricting the defence for overseas child sex offences based on a valid and genuine marriage
Travelling overseas to abuse and exploit children is a known practice of Australian offenders. This is most prevalent in overseas jurisdictions which have weak child protection frameworks, and where the offending behaviour is less likely to attract attention and investigation from local authorities
Although sexual offences committed overseas by Australians against children under 16 are already criminalised, the Criminal Code provides a defence if, at the time the offence was committed, there existed a valid and genuine marriage between the defendant and child. As the explanatory memorandum points out, this is problematic for a host of reasons, including that the legal age of marriage varies across international jurisdictions, with some permitting the marriage of children as young as ten. Similarly, many jurisdictions permit marriages where one party is younger than the minimum legal age by an order of the court.
The bill would amend the Criminal Code to narrow the defence so that the existence of a marriage between a defendant and a child no longer constitutes a valid defence for otherwise criminal conduct, if the child is under the age of 16.
Schedule 7 – Expanding the meaning of child abuse material
Schedule 7 of the bill updates the terminology used for child sexual abuse offences in Commonwealth legislation. It does this to reflect the gravity of these crimes, the harm that is inflicted on the children involved, and shifts in national and international best practice.
Currently, the Criminal Code and other Commonwealth legislation distinguish between ‘child abuse material’ and ‘child pornography material’. In recognition that the term 'child pornography material' is no longer considered appropriate or accepted terminology, the bill would repeal references to ‘child pornography material’ and reconstitute the current definitions of ‘child abuse material’ and ‘child pornography material’ into a single definition of ‘child abuse material’. Amendments to the terminology are also reflected in Schedule 2.
The explanatory memorandum states that there would be limited increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences and notes that these costs would be absorbed.
Consideration by other parliamentary committees
At the time the committee adopted this report, the Parliamentary Joint Committee on Human Rights had not reported on the bill.
The Senate Scrutiny of Bills Committee (the Scrutiny Committee) raised scrutiny concerns in relation to the bill in its Scrutiny Digest tabled on 31 July 2019. A summary of the Scrutiny Committee's concerns is provided below.
Scrutiny of Bills Committee
The Scrutiny Committee raised concerns about the:
privilege against self-incrimination;
significant penalties in the bill;
reversal of the evidential burden of proof; and
reversal of the legal burden of proof.
With respect to its concerns, the Scrutiny Committee brought these to the attention of senators and has:
left it to the Senate as a whole to determine the appropriateness of abrogating the privilege against self-incrimination in circumstances where a 'derivative use' immunity would not be available;
requested the minister's more detailed advice regarding the justification for applying a significant custodial penalty to the proposed offence of possession of childlike sex dolls and other objects, and making current lawful possession unlawful from the day after the Act receives royal assent;
requested the minister's detailed justification as to the appropriateness of including the specified matters as offence-specific defences; and
requested the minister's advice as to why it is proposed to reverse the legal burden of proof in this instance and why it is not sufficient to reverse the evidential, rather than legal, burden of proof.
Previous version of the bill and past committee inquiry
Another bill, also called the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, was introduced in the House of Representatives on 14 February 2019. The Senate referred that bill to this committee for inquiry and report by 22 March 2019. The committee received 13 submissions to that inquiry and tabled its report on 22 March 2019. The previous bill lapsed at prorogation of the 45th Parliament on 11 April 2019.
The bill currently before the committee is substantially the same, with some technical amendments and the addition of Schedule 7 which expands the definition of child abuse material.
Focus of this report
Much of the evidence received for the current inquiry highlighted similar issues to those raised in the previous inquiry. While the focus of this report is on the issues raised in the current inquiry, the committee was also able to consider submissions provided to its previous inquiry. Key issues raised in evidence are discussed in the next chapter.