Sussan Ley (Farrer, Liberal Party, Shadow Assistant Treasurer) Share this | Hansard source

I appreciate the opportunity to speak on the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010. I congratulate the member for Stirling for his initial response to the bill and I echo all the remarks that he made. I know that he will continue to see this as a very important area for the coalition to pay great attention to.

This is a very important bill for the protection of children—probably one of the most important bills, I think, we will see in the House this year. I would like to reflect on some parts of the bill that I think are particularly important and particularly useful, and also discuss generally the problem of online child exploitation and the difficulties that we face as legislators, members of the community, judges and juries et cetera in combating an increasingly prevalent crime. It is important therefore that we continue to amend our existing legislation to keep pace with changing technology and recognise that as methods of communication and identification and abuse of children become easier with the different technological tools available we continue to catch up as legislators.

Generally, this bill makes amendments relating to sexual offences against children, including child sex offences outside Australia and child sex offences involving postal or similar services or carriage services, which I think for all intents and purposes means the internet. It strengthens the child sex tourism offence regime by introducing new offences for steps preceding actual sexual activity with a child, improving the operation of existing offences for sexual intercourse or other sexual activity with a child and by introducing new sexual activity offences directed at aggravated conduct, persistent sexual abuse and sexual activity with a young person where the defendant is in a position of trust or authority.

The bill introduces new offences for Australians dealing in child pornography and child abuse material overseas. Commonwealth, state and territory offences criminalise dealings in child pornography and child abuse material; however there are currently no offences applying extraterritorially to dealings in such material by Australians overseas. This bill will introduce new offences for possessing, controlling, producing, distributing or obtaining child pornography or child abuse material outside Australia. It will ensure that all behaviour relating to sexual offences against children by Australians within Australia, which is covered by state and territory offences, is also criminalised when committed by Australians overseas.

It will introduce new offences for using a postal or similar service for child sex related activity, as the member for Werriwa pointed out. Snail mail is still used to distribute abusive material and there is no particular offence targeted at the general postal services. It will enhance the coverage of offences for using a carriage service—the internet—for child pornography or child abuse material or for sexual activity with children. So it will strengthen an existing regime that we saw really begin in Australia in 2005.

I will look at some of the new offences in the bill and talk about why I think they are a good thing. There are new aggravated offences—and they will apply in the part of the bill that relates to sexual activity with children—where the defendant is in a position of trust or authority in relation to the child or the child is otherwise under the care, supervision or authority of the person. Unfortunately, Australians are not limited to taking advantage of positions of trust at home; they may also travel to foreign countries and take up positions as teachers, aid workers, sports coaches and church workers. Offenders may take advantage of being in an environment where they understand that effective criminal laws are not there and they may take advantage of the role that they are in. That should rightly be seen as an aggravated offence, as should an offence which takes place where a child has a mental impairment.

There is a new persistent sexual abuse offence. This relates to the fact that courts have faced difficulties in prosecuting where there is evidence of a chain of events but it is not clear when exactly the events took place and the witness, often a child, is supposed to remember individual occasions—which is clearly not possible. Just as other domestic sexual offences are committed by Australians overseas, it is not inconceivable that Australians may engage in persistent sexual abuse of children overseas. The amendments in this part of the bill will introduce that new offence of persistent sexual abuse of a child overseas. It is based largely on a model that was recommended by the then Model Criminal Law Officers Committee in its 1995 report on sexual offences against a person.

There is a new offence of abuse of a young person where the offender is in a position of trust or authority, and it is similar to the previous example except that it applies where the young person is between 16 and 18 years of age. Normally they would not come under the children’s sexual abuse provisions because the age of consent under Commonwealth law is 16, but it is widely recognised that there are certain relationships where there is significant potential for an imbalance of power. Therefore there should be an appropriate offence for where the child is between 16 and 18 years old.

One of the most important provisions of this bill is a new grooming and procuring offence. Existing child sex tourism offences prohibit engaging in sexual intercourse or sexual conduct with a child or inducing a child to engage in such conduct. Those child sex tourism changes to the law came, I believe, in 1994, but the existing regime does not criminalise behaviour that leads up to the actual sexual activity with a child. It is frequently the case that offenders target specific children for the purpose of grooming the child to engage in sexual activity or procuring the child for sexual activity. For example, that might be an offender building a relationship of trust and then seeking later on to sexualise that relationship with explicit activities via webcam or posting images online to the child.

One thing that is very important to note is that the initial relationship building does not have to involve obscene content for it to be considered grooming. It could just be what appears to be an innocent chat online but is far from innocent. It is important that we recognise that we need to target the grooming and preparation activities in the very early stages. By enacting extraterritorial offences for grooming or procuring a child in or outside Australia for sexual activity overseas, we will comprehensively criminalise this kind of conduct, and it puts us on par with our international counterparts.

Related to the offence of grooming and procuring is the new preparatory offence. Under the existing child sex tourism regime a person who organises for others to engage in child sex tourism, such as a child sex tour operator, would be captured by benefiting and encouraging offences. While these offences allow police to adopt an interventionist approach, they are not directed at conduct where the person is planning their own participation in child sex tourism. So it is not clear that such preparatory activity would be captured by the existing offences.

Offences involved in child sex tourism are of a particularly serious nature. They result in devastating consequences for the child and the victims. Evidence of a person’s intent to travel overseas to sexually abuse children often comes to the attention of law enforcement agencies while the offender is still in Australia. Law enforcement should not have to wait until the offender is at the airport with the tickets or on the plane and heading overseas to a jurisdiction that does not have the stringent laws that we do and then rely on an Australia-led operation to intercept their activities. It is critical that we focus on prevention rather than just addressing the conduct after the fact. It will go much further towards protecting children in other countries from this behaviour. So this bill introduces a new offence of preparing for or planning a child sex tourism offence.

I would like to give some examples of how the new provisions around sexual activity with a child outside Australia would work in practice. These examples come directly from the explanatory memorandum, which I think is extremely well written and certainly does capture the intent of this parliament not just to legislate for a specific, supposedly obscene act at a given point in time that takes place overseas and is very hard to prove later in a court of law but to make legislation that surrounds the entire activity and sounds a very strong warning bell to those who would seek to travel overseas to become involved in sexual activity with children. One of the examples given in the explanatory memorandum concerns an offence where somebody could be charged even though they are not actually the participant. It states:

Person A travels to Thailand and while in Thailand, commits an act of a sexual nature … on a person under 16.

Person A travels to Thailand and while in Thailand, submits to an act of a sexual nature … committed by Person B in front of a person under 16.

Person A travels to Thailand and while in Thailand, engages in sexual intercourse with Person B (another adult) in front of a person under 16.

Those offences would be captured by this new legislation. It would include people who involve themselves in these types of activities whether there may be voyeurism, there may be the presence of other people in the room, whether there may be children who appear to be incidental in what is going on but they are not. These new offences will catch all of that and allow Australians who carry on those activities overseas to be prosecuted.

The bill introduces a couple of new offences, including the offence of benefiting from offences. The explanatory memorandum states:

The purpose of the offence is to specifically target the organisers and promoters of child sex tourism. The section will make it an offence for a person to engage in conduct, whether in Australia or overseas, with the intention of benefiting (whether financially or otherwise) from an offence against this Division. The offence is only made out if the conduct is reasonably capable of resulting in that person benefiting from an offence against this Division.

An example would be a person receiving money in return for organising another person’s travel to a foreign country.

The other offence introduced in the bill, which has already been mentioned, is encouraging. An example would be where a person places an advertisement in a newspaper advertising the provision of assistance to persons to travel outside Australia in order to engage in child sex tourism. A person who advertises an offer to assist somebody else to travel outside Australia will still be guilty of the offence, even if the person did not ultimately travel to the foreign country and engage in sexual activity with a child.

Preparing to commit offences concerns preparatory activities before the offence takes place. For example, a person is in Australia and they use the internet to research and collect information about the child sex tourism industry in a particular destination. The person contacts child sex tour operators and asks if they can organise the supply of a child under 16, and the person books flights and accommodation for that destination but they have not left the country. They are still committing an offence.

Advances in technology and the expansion of the internet have led to an increased incidence of strategic child sex offending; that is, offenders have become increasingly sophisticated in their networking activities and they are more able to access information about where to go, who to meet, who to ask for, what language to use, what codes to use—without explicitly expressing the thing that they are there to do. Offenders are much more able to organise their participation in child sex tourism from their own home in Australia, but the offence they are intending to engage in will still be a child sex tourism offence applying to their conduct outside Australia. Again, it is a preparatory offence and it is important that law enforcement agencies have the opportunity to stop that person travelling in the first place.

The bill strengthens offences involving child pornography material or child abuse material outside Australia. I should note that although the words ‘child pornography’ are used in this bill, members of the Virtual Global Taskforce, including our AFP and our fabulous task forces in each state, including Argos in Queensland, CEOPC in Britain and Interpol, prefer the term ‘online child sexual abuse’. It is understandable why that would be the case.

This bill introduces a new division into the Criminal Code which contains a suite of offences directed at dealings with child pornography and child abuse material overseas. As the law stands, an Australian could travel overseas, make or purchase child pornography or child abuse material and escape punishment, even though the same behaviour, if committed in Australia or over the internet, would be a serious criminal offence. If that material were intercepted at Customs on the person’s way back into Australia it would certainly be an offence, but material is not always intercepted. Of course, if the video of the abuse is made in another country then it exists only virtually; there is no hard copy on a DVD to be transported or to be intercepted at Customs. At the moment, that breaks no law of Australia and it is important that we correct that anomaly.

This bill is principally concerned with child sex tourism. As those who have visited our neighbours in developing countries and who understand the situation in those countries know, thousands of Australians travel overseas every year to sexually abuse children. I can recall the first visit I made to Cambodia. I was standing at the baggage carousel and noticed a video that AusAID had produced. It was an excellent video, and it was right in your face. It simply said to those who were collecting their baggage, ‘If you have come to Cambodia to sexually abuse children, these are the penalties you will face.’ We had existing laws at that time and we are updating those laws. That was a very strong message. During the course of that visit, I went to the temples and the ruins at Angkor Wat—as tourists do—and saw a line-up of middle-aged European men talking to small Cambodian children. You did not have to be Einstein to work out what the conversation and the exchange of money was about. Of course, the poverty that so many of these nations face often means that families feel there is no escape. It is very, very important that this parliament acts to protect children and, as I said earlier, sound a very strong warning to those who would seek to carry out these activities that it is going to get tougher and tougher and that the laws are stronger and stronger.

In discussing with members of the Virtual Global Taskforce the problem of online child exploitation across the world, in seeing the work that they do and in talking to researchers, psychologists and members of the FBI, questions come up. The member for Werriwa reflected very well on some of these questions relating to the state of modern society and what is actually going on. There is a dearth of research in this area and very little knowledge about why the phenomenon of online child abuse is exploding at the rate that it is.

Everyone who is involved in it will describe it in those terms. One FBI investigator said, ‘We can step out anywhere, anytime and arrest somebody for having abusive images of children on their computer.’ His words were, ‘It’s like shooting fish in a barrel.’ Someone from the British Met said to me, ‘It’s a snowstorm out there, and it’s only getting worse.’ I spoke to researchers, and the question that they grapple with is whether viewing child abuse images online—bad enough as that is, because there is a child who has been abused to make the image—encourages the actual physical abuse. No-one actually knows the answer to that. Members of CEOPC in Britain told me that some of the worst offenders were not people who viewed those images online—or, at least, they viewed very low grade images rather than the more violent and disgusting ones.

Do strong penalties provide a deterrent? I seriously doubt it. In most states in the USA the jail term for one image of child abuse on a computer is five years. There are examples where somebody with four images has received a 20-year jail sentence. If you look at the offender rates, they are certainly not going down. One thing that the psychologists will tell us about everybody who engages in this practice is that they never think they are going to be caught. They are very unlikely to be deterred to the extent that we would like them to be. So the answer is not stronger jail sentences. It might be in part, and I certainly think that the jail sentences we are handing out at the moment across Australia are not sufficient and are not sending the right message back into society. Quite aggressive and successful defences are mounted for many of the cases that come before the courts.

We do need to understand the problem a great deal better. I believe that the proclivity to find children sexually attractive is something that has been with society for a long time. There are stories of how somebody may have spent 10 years grooming a child from the opposite end of Europe without ever actually meeting them because the facility was not there. Well, with the internet, the facility certainly is there. Not only that, but there is a community of likeminded people who are happy to normalise the behaviour, talk about it online and encourage it, to the extent where we as legislators, members of parliament and members of the community are greatly worried and need to take action. I commend the bill to the House.

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