In its March 2019 report on the previous iteration of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (the bill), the Legal and Constitutional Affairs Legislation Committee (the committee) reported that submitters supported the objectives of the bill and welcomed its introduction, but also proposed some amendments and highlighted certain key issues. Similarly, while the evidence received for this inquiry indicated broad support for the objectives of the bill, submitters and witnesses again suggested some amendments and highlighted a number of issues, as set out in the following sections.
Failure to protect a child at risk of, and failure to report, child sexual abuse
The introduction of new offences for Commonwealth officers was broadly supported. It was recognised that the offences and associated duties 'will raise community awareness of child sex abuse, prevent abuse from occurring and limit ongoing instances of abuse'. Similarly, knowmore, an independent community legal centre, submitted that the failure to protect offence 'will help to encourage organisations to implement effective systems to prevent and respond to allegations of institutional child sexual abuse' and will also place 'additional responsibility on staff with leadership roles to foster an effective organisational culture in this area'.
Legal Aid New South Wales submitted a different perspective and expressed concerns about the scope of the failure to protect and failure to report offences. In its view, the offences have been drafted too broadly and are inconsistent with the recommendations of the Royal Commission. It proposed a number of amendments to achieve consistency with the Royal Commission's recommendations.
Mr Hamish Hansford, First Assistant Secretary at the Department of Home Affairs, emphasised the importance of the new offences:
The premise of this bill…is: if the offences that are in schedule 1 of the bill had existed 40 years ago, would Australia have had such an extent of child exploitation uncovered through the royal commission? The government has accepted the royal commission's findings on the basis of that extensive evidence and has outlined that these two offences can make a strong contribution to changing the culture within agencies at state and territory level and, in this case, at the Commonwealth level.
Although broadly supported, some issues and possible amendments to the proposed new offences in schedule 1 were raised with the committee which are described in more detail below.
Definition of Commonwealth officers
The committee discussed the scope of the definition with departmental officers who confirmed that the definition of Commonwealth officer in the bill is intended to be ‘expansive’ and covers a range of groups including ministers, members of parliament, contractors and subcontractors to the extent that they have ‘care, supervision and authority’ over children.
Knowmore raised concerns with a particular part of the definition. Knowmore observed that the definition of 'Commonwealth officer' in proposed section 273B.1 is not limited to adults. While it was acknowledged that in practice only a small number of people under 18 would be engaged in roles encompassed by the definition, knowmore recommended that consideration be given to limiting the definition to adults.
Failure to report
The Australian Lawyers Alliance submitted that responsibility for failing to report sexual abuse should be extended to include institutions:
The history of cover-up in institutions strongly suggests that the criminal offence should apply not just to individuals but to the institutions which have failed victims by exposing them to abuse and then, too often, by protecting their abusers.
Knowmore suggested that consideration be given to establishing an end date for a failure to report offence of 10 years, 'where the relevant knowledge is gained or the suspicion is or should have been formed after the failure to report offence commences'.
Another matter discussed in relation to reporting requirements was the need for protection of whistleblowers. Mr Warren Strange, Executive Officer, knowmore explained:
We have seen instances of people within institutions who want to come forward and disclose their knowledge of child sexual abuse occurring at the institution. The risk of reprisals against those people is quite significant. On that basis, we think the more robust the legislative protections are, the more that is going to encourage a climate where whistleblowers believe that protection will be available, will be genuine, and will encourage reporting and cooperation.
Mr Strange noted that although there may already be some protections under other legislation such as industrial laws or unfair dismissal, the inclusion of appropriate protections in the bill would send 'an important message to institutions and to people within those institutions who might be minded to try and do the right thing but who might face some institutional barriers'.
On this issue, the Uniting Church in Australia, Synod of Victoria and Tasmania, drew the committee's attention to the Public Interest Disclosure Act 2013 for Commonwealth employees, as well as state whistleblower protections and associated legislation, and noted that further discussion would be necessary to ascertain to what degree 'those various pieces of legislation would provide sufficient coverage for someone reporting knowledge of child sexual abuse against retaliation and protect them in those circumstances'.
Submissions from the Law Council of Australia and Legal Aid NSW highlighted concerns with the drafting of proposed sections 273B.4 and 273B.5 and the breadth of the proposed application of absolute liability.
Legal Aid NSW discussed subsection 273B.4(2) which applies absolute liability 'in relation to the element of the offence which requires that the conduct of the potential offender, if engaged in, would constitute a child sexual abuse offence'. Legal Aid NSW was concerned that the provision 'makes it irrelevant whether the defendant knew that the conduct in question would constitute a child sexual abuse offence'.
The Law Council detailed its concerns about the absolute liability provision:
There is a fundamental problem with the fault elements for both of these offences. It's a fundamental principle of criminal law and just a fundamental principle of blaming generally that there be a criminal intent. And, at the heart of the matter, there must be something which the person themselves knows to be something which would fall within that ambit. What subsection (d), in the rendering of it as an absolute liability, seeks to do is to take that out of the requirements for the offence.
Further to this, the Law Council identified perceived issues with provisions that relate to conduct alone, pointing out that many child sexual abuse offences 'have a requirement of knowledge or intention prior to the matter constituting a child sexual offence'. The Law Council also suggested that clarification around 'conduct' and 'sexual conduct' in relation to a child was needed.
To address these concerns, the Law Council argued that sections 273B.4(1)(d) and 273B.5(1)(d) should be amended 'so that the prosecution are required to prove that the accused knew the facts which would amount to a child sexual abuse offence'.
The Department of Home Affairs and Attorney-General's Department submitted that the application of absolute liability of the 'proposed offences is appropriate to ensure compliance with the reporting regime to report child sexual abuse'. Ms Ciara Spencer provided further evidence at the hearing:
Officers with care, supervision or authority over children are obliged to report conduct or take the action, regardless of whether the elements of the child abuse offence are outlined. If we had done it any other way, you would almost have to prove the elements of the child offending before you were able to look at anyone for failure to report. What we want to do is make sure that we're getting reporting. For example, grooming is a relatively new form of child abuse, and not every member of the public would have understanding of what the elements of the offence of grooming are. We don't want that to limit the reporting that we're getting about concerns around child welfare.
When asked about the Law Council's concern that the provisions in the bill are significantly broader than existing state provisions relating to knowledge of an offence, Ms Spencer advised that the proposed offences are consistent with the Attorney-General's Department document, A guide to framing Commonwealth offences, infringement notices and enforcement powers. She also noted that there are a number of safeguards in place, such as the requirement to obtain the consent of the Attorney-General for any prosecution for the failure to report and the failure to protect offences.
Proposed subsection 273B.5(5) provides that an individual is not excused from failing to disclose information relating to a child sexual abuse offence on the ground that disclosing the information might incriminate the individual. The Law Council submitted:
To avoid casting an obligation on a person to self-report conduct that is allegedly criminal under the proposed sections, in defiance of fundamental canons of the criminal and common law in this country, the Law Council suggests that the words ‘a third person (the potential offender)’ should be substituted for the words ‘a person (the potential offender)’ in proposed paragraph 273B.5(2)(c). Alternatively, paragraph (b) could simply read ‘there is a person aged under 18…’ and then paragraph (c) could read ‘another person (the potential offender)’. This would avoid any confusion or attacks on the validity of the provision as presently drafted.
The Law Council notes that a direct use immunity is to apply under proposed subsection 273B.9(10), preventing this information from being used in any ‘relevant proceedings’ against the discloser. However, the Law Council is concerned that as currently drafted, should a person be compelled to disclose information despite it being self-incriminating, this may still be admissible where there is information obtained as an indirect consequence of the disclosure. Derivative use material is permitted to be used in subsequent criminal proceedings. The proposed subsection 273B.9(11) states that subsection 273B.9(10) does not ‘affect the admissibility of evidence in any relevant proceedings of any information obtained as an indirect consequence of a disclosure of information that constitutes protected conduct’.
The joint submission from the departments stated that the abrogation of the privilege against self-incrimination 'is necessary to ensure that all Commonwealth officers covered by the related offence provisions report abuse or take action to protect against abuse'. The departments also advised that a number of safeguards are in place to 'ensure the offence does not go beyond its stated purpose and unnecessarily infringe on the privilege against self‑incrimination'.
When asked to reflect on the Law Council's suggestion that there is a contradiction in the drafting of the bill in relation to self-incrimination, the Department of Home Affairs advised that the bill reflects the 'government's intention to provide immunity to the extent that it is proportionate but not beyond that'. In addition:
The person is immune from liability for genuine and proportionate attempts to report or prevent abuse, and information to disclose, in doing so, can't be used against them in proceeding. I know the Law Council today used the example of a group of offenders and one potentially reporting and having immunity for that reporting. Obviously it's a matter that's determined on a case-by-case basis, but where we would see, for example, that that person reported one instance of child abuse and then the members of the group come forward and say, 'Well, actually, there were 20 children or a continued pattern of abuse,' that immunity would no longer apply, because it wasn't appropriate and proportionate to the report that they made.
Legal professional privilege
The Law Council expressed concern with section 273B.9 which refers to protected conduct but also provides, in subsection (4), that the section does not prevent a person from being liable in any relevant proceedings for conduct that is revealed by disclosure of information. In the view of the Law Council, this provision 'creates uncertainty in the scope and application of the protections said to be afforded by this provision'. The Law Council outlined an example whereby an individual may seek legal advice in relation to issues or conduct that could engage the new reporting requirements in the bill:
Under this bill, if the lawyer also happens to be a Commonwealth officer, they would be obliged to report that. We say that legal professional privilege should stand outside this bill and it should not be included. We can't have a situation where legal professional privilege is being broken in that way, even with the protections in the bill, which would protect the lawyer from being sued but wouldn't protect the client's confidentiality.
The departments advised that the new offences 'do not require a person to breach legal professional privilege or any other legal obligation of confidentiality'. In the event that a person chooses to breach those obligations 'to genuinely and proportionately avoid liability for the offences, they will not be liable for any breach of their legal obligations in doing so'.
The Department of Home Affairs further explained:
There are provisions in the bill which make it clear, if a person chooses to breach their professional obligations in order to report offending, that they would not be liable for their breach of legal obligations in doing that. The explanatory memorandum for the bill makes it clear that it is open to lawyers and others with professional obligations to rely on those obligations to not report, but the bill explicitly leaves it open to them to not have an impact if they do choose to report—to not be liable if they do choose to report. But they are still able to rely on the privilege if they so wish.
Provision of training and support
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) argued that in order to fulfil the protection and reporting obligations in the bill, Commonwealth officers 'will require support to ensure their new duties can be appropriately carried out'. In particular, this training should assist officers to 'identify that child sex abuse is occurring or has occurred and how to manage any imminent threats'. Furthermore:
They should also have access to professional services to ensure that they are supported through the experience of having witnessed grooming behaviour or child sex abuse to avoid possible trauma. This support should be ongoing, comprehensive and readily available.
The RANZCP also discussed the need for providing appropriate therapeutic support, including psychiatric services, to victims and their families who may be assisting an investigation.
The Uniting Church in Australia, Synod of Victoria and Tasmania emphasised the importance of Commonwealth officers having 'the authority and resources to reduce or remove risks of sexual abuse' and recognised that Commonwealth officers will need appropriate training and support. Dr Mark Zirnsak, Senior Social Justice Advocate for the Uniting Church in Australia, Synod of Victoria and Tasmania also observed that there is a 'danger of encouraging over‑reporting' which may impact the care and support being provided to children:
Potentially you are creating an environment in which staff who are supposed to care for children actually keep their distance and don't provide children with a supportive environment because they are so afraid that they are going to be reported on. There is a balance to be struck in creating a safe environment for children that is also nurturing and caring and provides the developmental support that children need. That is the balance that needs to be struck.
The Department of Home Affairs advised that the failure to report and the failure to protect offence do not commence until proclamation which will enable them to 'work with the rest of the Commonwealth to deliver appropriate training material and education to ensure that all Commonwealth officers are aware of their responsibilities'. It was also noted that there are already a range of frameworks in place as most of the obligations are already covered in state and territory legislation.
Possession of child-like sex dolls
Proposed sections 273A.1 and 273A.2 of the Criminal Code would criminalise the possession of a child-like sex doll and set a maximum penalty of 15 years' imprisonment for the offence. Proposed paragraph 273A.1(c) details that a person would commit an offence 'if a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse'.
The creation of an offence for the possession of child-like sex dolls was generally supported. However, some amendments to this section were also put to the committee and these are discussed in the following sections.
The Law Council argued for a reduction in the maximum penalty from 15 to 10 years on the grounds that this is a possession offence. It posited that 15 years is disproportionate when compared with maximum penalties for other offences, such as sexual activity with a child under 16 outside Australia (which attracts a maximum of 15 years). The Law Council also drew attention to the possible cost to the criminal justice system and called for there to be 'care for the criminal justice system'.
The Department of Home Affairs advised that a maximum penalty of 15 years would be consistent with other Commonwealth offences currently in place around possession of child abuse material. The Department of Home Affairs remarked that lowering the penalty would differentiate these possession offences from any other Commonwealth child abuse offences.
The Law Council submitted that the reasonable person test provided for in paragraph 273A.1(c):
…appears to displace the ordinary fault elements for offences under section 5.6 of the Criminal Code by requiring that a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse, requiring an objective test.
Dr Neal SC, Co-Chair, National Criminal Law Committee, Law Council of Australia explained:
In relation to the childlike sex dolls, again, a similar point about criminal intent…If you look at 273A.1—this is the possession of the childlike sex doll—in subparagraph (c):
(c) a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse.
We say that should be, that the person knows it's to be used for sexual intercourse. Again, it's that fundamental thing: it's not what the reasonable person knows; it's what the person who's doing the activity knows. Again, it is perfectly consistent with all of the sexual offences…It needs to be the defendant who knows those things.
To address this, the Law Council suggested that the section should be amended to require that there be proof of actual subjective knowledge by the offender of the sexual nature of the child-like doll or other sex object.
A representative of the Department of Home Affairs responded:
During the consultation with law enforcement agencies and, obviously, the Director of Public Prosecutions, there was a view provided by the Director of Public Prosecutions that it does create difficulties in proving the offence. On the face of the bill, we require that a reasonable person would form the view that it would be used for sexual intercourse. In the Law Council's evidence this morning, as well, I think they made the point that, in practical terms, generally that equates to the similar test that if a reasonable person would view that it would be used for that purpose then that would also be the view of the offender. But it is very difficult proving intent in these cases. There is a range of evidence that people call, for example, and I think the Law Council outlined this as well. There's the kind of material that they've been searching for, what's on the shipping notice—a whole range of things. But, yes, why we have gone with the reasonable person test is on the basis of that advice.
Scope of the offence
Some concerns were raised that the possession offence may only apply to child-like dolls that simulate sexual intercourse. Knowmore observed that the possession offence is drafted in a 'limited form' and suggested the bill be amended to include a broader definition such as 'for use in sexual acts'. The Uniting Church in Australia, Synod of Victoria and Tasmania noted that this may result in doll manufacturers designing them differently 'as a way to circumvent the provision'.
The committee sought clarification from the Department of Home Affairs which advised that the existing definition of sexual intercourse in the Criminal Code would apply. The explanatory memorandum also states that the definition of sexual intercourse in the bill reflects the definition in section 272.4 of the Criminal Code:
272.4 Meaning of sexual intercourse
(1) In this Code, sexual intercourse means:
(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or
(b) the penetration, to any extent, of the vagina or anus of a person, by an object, carried out by another person; or
(c) fellatio; or
(d) cunnilingus; or
(e) the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).
(2) In this Code, sexual intercourse does not include an act of penetration that:
(a) is carried out for a proper medical or hygienic purpose; or
(b) is carried out for a proper law enforcement purpose.
(3) For the purposes of this section, vagina includes:
(a) any part of a female person’s genitalia; and
(b) a surgically constructed vagina.
which, as noted at the hearing, 'explicitly limits it to the use for sexual intercourse, which is oral, vaginal or anal penetration'.
Offences to manufacture and traffic child-like sex dolls
The committee discussed with witnesses whether the manufacture and trafficking of child-like sex dolls would be captured as an offence in the bill.
The Law Council opined that manufacturing and importing such products would be in the worst category of offending—especially production on a large commercial scale—and suggested that amendment of the bill in this regard may be warranted.
The Uniting Church in Australia, Synod of Victoria and Tasmania advocated for the bill to be amended to include a strict liability offence for an online platform that allows the sale of childlike sex dolls, stating:
This particularly comes from the numerous examples of Amazon having had advertisements for childlike sex dolls on their platform repeatedly. You don't see that in newspapers. A newspaper doesn't set up their business model. They actually have people who screen ads before they get placed. Amazon and these kinds of online platforms want to say, 'Our business model works on the fact that we don't take responsibility for whatever gets posted and then we only correct after it gets pointed out to us that these kinds of things have happened,' and I think there's a need to deter that behaviour and to get them to take some responsibility about not allowing these things to be marketed.
The Uniting Church in Australia, Synod of Victoria and Tasmania recommended that:
The offence should include a defence that the platform took all reasonable steps to ensure childlike sex dolls could not be sold on their platform. Such a measure is needed to ensure that companies like Amazon are required to screen advertisements they host to prevent the sale of childlike sex dolls.
Departmental officials explained that the addition of 'child-like sex dolls' to the definition of 'child abuse material' in the Criminal Code would criminalise 'all dealings with childlike sex dolls in the same manner as child abuse material is currently prohibited' including 'control, production and distribution'.
Possession or control of child abuse material sourced using a carriage service
Schedule 3 of the bill would introduce a new offence for the possession and control of child abuse material. For conduct to constitute an offence, the relevant material must be in the form of data held in a computer or data storage device, and must have been obtained via a carriage service (such as the internet).
International Justice Mission (IJM) supported this new offence but also questioned the extent to which live-streamed child abuse is captured under legislation. With reference to the overall federal criminal legislation, IJM told the committee it still has concerns that the commissioning of child abuse by online media is not adequately covered.
Legal Aid NSW opposed the new offence because, in its view, the offence is unnecessary and duplicative, the penalty is not proportionate, the fault element of the offence is unclear and the presumption may operate unfairly.
The Law Council submitted that 'in line with possession of child abuse material offences in many state and territory jurisdictions, the proposed offences should be capable of summary prosecution in appropriate cases'. The Law Council highlighted that in order for the offence to be capable of summary disposal, the maximum penalty would need to be 10 years' imprisonment or less. The current maximum penalty of 15 years means that summary disposal would preclude the option of summary prosecution.
Dr Neal SC stated that 'the proposed possession offences for both child-abuse material and a childlike sex doll, the offences should be able to be prosecuted summarily with the consent of the prosecutor' because such an approach would be a more efficient use of resources and the court's time.
The Department of Home Affairs and Attorney-General's Department advised that under section 4J of the Crimes Act, certain indictable offences may be dealt with summarily, if the offence is punishable by imprisonment for a period not exceeding ten years. Noting that the proposed offences for possession of child‑like sex dolls and possession or control of child abuse material would both carry a maximum penalty of 15 years’ imprisonment to reflect the seriousness of the misconduct, the departments submitted that the offences are not capable of being prosecuted summarily and stated that the government is not comfortable with reducing the penalty.
Good Shepherd Australia and New Zealand advocated for the definition of family violence to be expanded to include forced marriage, in recognition of 'the explicit link between forced marriage and family violence'. Good Shepherd also submitted that the minimum age of marriage should be raised to 18 without exception:
The assertion around having a minimum age of marriage at 18 years is really about bringing Australia into line with our international obligations on what we are defining as a child: firstly, the Convention on the Rights of the Child, which identifies a person under the age of 18 years as a child; and, secondly, the resolution that Australia co-sponsored at the Human Rights Council earlier this year around evidenced based measures which do prevent the marriage of children.
I acknowledge that the law alone is not a tool that is going to prevent child and forced marriage from occurring, and I recognise that marriages do occur in religious, cultural and traditional senses that the law doesn't have necessary visibility over. I think the move to create a minimum age of marriage at 18 is a principled measure and it also removes any ambiguity around the unusual, or unique, circumstances where somebody may consent to marriage under the age of 18.
In my experience of working with young people who are facing marriage, it is not my view that individuals under the age of 18 really do understand the nature of marriage and the extent of their responsibilities in that kind of relationship. Developmentally and from a child psychology perspective, there's also no evidence to suggest that a person under the age of 18 can consent fully with full knowledge of the extent and nature of marriage taking place.
Good Shepherd also advocated for the legislative amendments to be accompanied by other complementary measures to support vulnerable and at‑risk individuals, including resourcing a preventative program and building capacity of mainstream and specialist workforces.
The Uniting Church in Australia, Synod of Victoria and Tasmania voiced its support for the proposed amendments relating to forced marriage and suggested that more could be done to address the issue, including greater emphasis on prevention, rather than prosecution.
Expanding the meaning of child abuse material
Evidence to the inquiry supported the amendments in the bill to replace existing references to 'child pornography material' with 'child abuse material'. Knowmore stated that the amendments will increase consistency across jurisdictions where the legislation generally refers either to child abuse material (as in New South Wales, Victoria and the Northern Territory) or child exploitation material (as in the other four states and the ACT).
Knowmore also observed that 'child abuse material is generally considered a narrower term than child exploitation material'. In this context it was suggested that further consideration be given to whether material described as 'child abuse material' would be better described in legislation as 'child exploitation material'.
The Department of Home Affairs and Attorney-General's Department explained that 'child pornography material' is no longer an appropriate term and that the term 'child abuse material' is the most 'encapsulating term':
The current international definition of ‘child pornography’ is nearly twenty years old and was introduced when the internet was in its infancy, at a time when online adult pornography was still novel and retained its social stigma. Due to the increasing normalisation of legal adult pornography in modern society, there is a concern that the term ‘child pornography’ may inadvertently legitimise that material by associating it with consenting subjects participating in legal behaviour, which is entirely inappropriate where the behaviour depicted involves the abuse of children who are incapable of legally consenting to such abuse.
The term ‘child abuse material’ is arguably the most encapsulating term as it builds upon the broad ambit of the ‘child exploitation’ definition, without applying the implication of a transaction of benefit to a child for partaking in the acts. It also reflects the Australian Government’s intention to ensure the definition captures material that depicts other forms of child abuse, including torture, cruelty and physical abuse.
The committee welcomes the Australian government's commitment to implement recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse and acknowledges that the bill gives effect to some of those recommendations.
Submitters and witnesses to this inquiry were overwhelmingly supportive of the bill, but the committee notes that some issues were raised and some amendments were proposed. The committee is satisfied that the responses by the Department of Home Affairs, Attorney-General's Department and the Australian Federal Police to these issues and proposed amendments clarified the intent and operation of the bill.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker