Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010. This bill aims to strengthen the existing child sex tourism offence regime and makes amendments to child sex offences committed outside of Australia. The bill also introduces new offences for steps leading up to actual sexual activity with a child. The bill aims, amongst other things, to ensure that behaviour involving sexual offences against children committed by Australians within Australia is also criminalised when committed by Australians overseas.

In 1994 the Commonwealth enacted a suite of new criminal offences targeting Australians who engaged in the sexual abuse of children overseas, sometimes referred to as ‘child sex tourism’. The introduction of these offences fulfilled Australia’s international and moral obligations to protect children internationally from sexual exploitation. In 2005 the former coalition government enacted a range of offences directed at the use of a carriage service, such as the internet or mobile phone, for the sexual exploitation of children. This action was taken in response to the increasing use by offenders of new technical tools such as the internet to engage in this heinous activity.

This bill will implement a range of reforms to the 1994 and 2005 offence regimes to ensure that they remain effective and continue to meet the needs of law enforcement agencies in combating contemporary offending. The reality we face today is that rapidly changing technologies and the anonymity provided by the internet has resulted in an unprecedented opportunity for child sex offenders. The coalition broadly supports these reforms and new offences which strengthen the current system so that sexual exploitation is comprehensively covered, whether committed online or through other devices such as mobile phones or through the mail.

Specifically, this bill aims to strengthen the existing child sex tourism offence regime. It introduces new offences for dealing in child pornography and child abuse material overseas. It introduces new offences for using a postal service for child sex related activity. It enhances the coverage of offences for using a carriage service for sexual activity with a child or for child pornography or child abuse material. It also makes minor consequential amendments to ensure existing law enforcement powers are available to combat Commonwealth child sex related offences, and it introduces a new scheme to provide for the forfeiture of child pornography and child abuse materials and items containing such material.

The bill’s explanatory memorandum notes that part 1 of schedule 1 will repeal the existing child sex tourism offence regime in the Crimes Act and move the provisions to the Criminal Code. It also aims to strengthen 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 or 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 in relation to that young person. Part 1 of schedule 1 will also introduce 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 within Australia and through the internet. However, there are currently no offences applying extraterritorially to dealings in such material by Australians overseas. Accordingly, part 1 will introduce new offences for possessing, controlling, producing, distributing or obtaining child pornography or child abuse material outside of Australia. The purpose of the amendments in part 1 is to ensure that all behaviour relating to sexual offences against children by Australians within Australia which are covered by state and territory offences is also criminalised when committed by Australians overseas.

Part 2 of schedule 1 will introduce new offences for using the postal or a similar service for child sex related activity. While there is a general offence of using a postal service to menace, harass or cause offence, carrying a maximum penalty of two years imprisonment, there are currently no specific offences for using a postal service for child sex related activity. This has led to inconsistencies in how child sex related activity using a carriage service and comparable activity using a postal service is treated. Accordingly, part 2 will introduce a comprehensive suite of offences that criminalises the use of a postal service mirroring existing and proposed carriage service offences and penalties.

Part 2 of schedule 1 will enhance the coverage of offences for using a carriage service—for example, the internet—for child pornography or child abuse material or for sexual activity with children. In 2005, new offences for using a carriage service for child pornography or child abuse material or for grooming or procuring a child for sexual activity were inserted into the Criminal Code. Part 2 will extend and improve the operation of these existing offences. It will also introduce new offences for using a carriage service for indecent communications with a child or for sexual activity with a child.

Part 3 of schedule 1 will make minor consequential amendments to ensure existing law enforcement powers are available to combat all Commonwealth child sex related offences. Part 3 will make minor consequential amendments to the Australian Crime Commission Act 2002, the Crimes Act, the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979. These amendments will ensure that law enforcement agencies are able to use existing powers applicable to existing offences for the investigation of the proposed new offences.

The purpose of schedule 1 is to introduce a comprehensive scheme for the forfeiture of child pornography or child abuse material or articles containing material derived from, or used in connection with, the commission of a Commonwealth child sex offence. Currently there is no specific Commonwealth scheme for dealing with child pornography or child abuse material that is seized or otherwise obtained by law enforcement in the course of their investigating activities. Material or offences will be able to be forfeited through a notice scheme administered by the Australian Federal Police or, where appropriate, a state or territory police force. Disputed forfeiture matters will be dealt with by a court. A court would also be able to determine forfeiture applications brought by the Commonwealth Director of Public Prosecutions either following a conviction or an acquittal or in purely civil proceedings.

I want to talk just briefly about the role of the Australian Federal Police in combating online child exploitation. I think it is important at this point for us to acknowledge that the Australian Federal Police’s child protection operations team performs an investigative and coordination role within Australia for multijurisdictional and international online child sex exploitation matters. These matters include those from Australian state and territory police, government and non-government organisations—including internet service providers and internet content hosts—the Virtual Global Taskforce, international law enforcement agencies, Interpol and members of the public.

The AFP investigate online child exploitation which occurs using a telecommunications service such as the internet or a mobile phone. The types of offences investigated include accessing, sending or uploading child exploitation and abuse material. Grooming and procuring of children over the internet is also investigated by the AFP. This is when an adult has made online contact with a child under the age of 16 with the intention of facilitating a sexual relationship. AFP investigations may also focus on internet sites carrying child abuse material and operating from an internet service provider in Australia. In cases where the site content is not hosted within Australia, the matter is referred to overseas law enforcement agencies. The coalition applauds the hard work that the Australian Federal Police do at a federal level and also at an international level to combat those who seek to harm the most innocent and vulnerable within our society.

I also want to say a brief word about sentencing guidelines across Australia. State and territory sentencing guidelines differ very significantly in relation to child pornography offences. In June last year this issue was raised by my predecessor in this portfolio, the member for Farrer, who spoke in this House about the inconsistencies in sentencing for child pornography offences in the differing state and territory jurisdictions. There have been a number of disturbing reports in the media about the perceived leniency of sentences for child pornography offences. One notable example is the case of the Queen v Nigel Keith Saddler, where Judge Berman commented on the inadequacy of the maximum penalty for child pornography offences under section 91H(3) of the Crimes Act 1900 in New South Wales. When sentencing Saddler, Judge Berman made a number of comments about the serious nature of child pornography offences and the need—which I think would be endorsed by most in the community—for harsh sentences for these offences, saying that this was:

… not only so that judges do what they can to reduce the demand for such appalling acts of cruelty, but also to mark in a very real way the community’s horror at such treatment of entirely innocent and defenceless children.

Judge Berman also went on to say:

Of course the consequences of possession of child pornography go beyond the harm caused to those children involved in its production. The use by an offender of child pornography has the effect of weakening the otherwise very strong idea that children need to be protected from sexual exploitation. Further the use by a person of child pornography for sexual gratification can lead to a situation where the person himself moves beyond being merely a viewer of child pornography to become an abuser of children.

In New South Wales, the penalty for sexual conduct with a child under the age of consent is a maximum of seven years, in Queensland it is 20 years and in the Northern Territory it is 20 to 25 years imprisonment. Notably, maximum penalties also differ greatly for state and territory offences in relation to the production of child pornography or child abuse material. In New South Wales, Victoria and Queensland the maximum penalty for producing child pornography material is 10 years, in Tasmania the maximum is 21 years and in the ACT the maximum penalty is only five years imprisonment for such offences. These inconsistencies need to be addressed, and I think everyone in the community expects them to act as a deterrent for these heinous and hideous crimes.

In June 2008, my colleague in the Senate Senator Bernardi introduced a private senator’s bill, the Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008, which did not receive government support. The government—I think quite remarkably—would not allow Senator Bernardi’s bill to be debated. I just want to remind this House of what the provisions of that bill were. The main provisions of the bill included the creation of new grooming, procuring and preparatory offences, which filled a gap in the current legislation. The purpose of those measures was ‘to give law enforcement agencies and prosecutors the mandate to take action’ before a child was actually harmed. So if there is a paedophile out there grooming a child then the authorities could step in and take appropriate action before that child is harmed. The bill also introduced a new offence making it illegal for Australian citizens and residents to possess, distribute, obtain or control child pornography or child abuse material while overseas, as this behaviour is currently outlawed only in Australia. The intention was to fill the gap where a foreign country was unable or unwilling to prosecute persons engaged in child sex tourism offences or where the country has no specific laws to deal with those offences. Senator Bernardi’s bill also included the forfeiture of child pornography and child abuse material. It should be noted that these provisions have been included in the bill that we are debating here today and, as we see by the drafting of Senator Bernardi’s bill of two years ago, these issues have been of concern to the opposition for some time.

This bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report on the bill by 15 March. The coalition, of course, supports this bill in principle. However, we reserve the right to make amendments pending the outcome of the Senate committee’s inquiry. Importantly, I want to recognise and thank the hardworking members of our state and federal police forces around the country. I particularly single out the Australian Federal Police’s High Tech Crime Centre. They work in conjunction with our international partners in the Virtual Global Taskforce, which painstakingly traces these criminals using web recognition tools, Google and specialised software in what is a truly international effort to crack down on the trade in these deplorable images.

At this point there is no effective technological solution that removes the need for these officers to sit and look through every image that is found on a seized hard drive. Sadly for some of these officers who have been involved in this particular task force, they have observed the same children over many years suffering continual abuse. Sometimes, through various software tools, they are able to identify locations, identify victims and arrest their abusers. I think everyone in the House will recognise that, while all police officers do a difficult job, these police officers are remarkable people who should be recognised for their continual efforts to crack down on this disgusting trade. The House should recognise that they are doing a particularly difficult job in what is, of course, a very difficult area of law enforcement.

Whilst Australia has a strong framework in place to criminalise online child sexual exploitation, the new offences and reforms contained within this bill will ensure that the offences capture contemporary offending. The opposition strongly believes that protecting children from this sort of disgraceful predatory sexual behaviour should be a priority for every government and endorses any measures this parliament will take to crack down on this truly horrendous crime.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

It will probably not take many members in this House by surprise that I tend to speak a lot on law enforcement based legislation. That is partly because, prior to coming here, I had pretty extensive involvement with law enforcement through the Police Federation of Australia. And it probably has more than a little to do with the fact that my father was a police officer with the New South Wales police.

I have always been very passionate about ensuring that our police, those people who take on that brave role and protect our community, have the necessary tools and the necessary legislative support to ensure that they can do that role on our behalf. I acknowledge that many of the activities they participate in are often very dangerous. They experience things that we, thank God, never will, and they do that as part of their normal daily lives. They are prepared to take those risks on as part of their normal daily lives.

When it comes to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 I have to say that I feel a bit perplexed about it. I say that—being a parent and now, happily, a grandparent of three—because this does not seem to reflect the society that we all grew up in. I know that is not quite the case; we all know that there were various issues in the deep past at various religious organisations and other happenings which occurred and which are now being reported. But I have to say that child sex offences are something that I just cannot understand. I cannot understand the motive and I cannot understand why this would be attractive for people to get involved with. However, I do understand from my police colleagues that this is something which is a scourge on our modern society.

It is something that is not dissipating and it is not something that police are able to detect in advance and protect children from at the moment—it is something that is highly reactive. I congratulate the member for Stirling and his recognition of the police, particularly the AFP and their High Tech Crime Centre, which I have had the opportunity to visit as a member of the parliamentary committee with oversight of the Australian Crime Commission. I see what those officers do, and I have to say that it is a job that I do not know how people do: to assume identities and to enter into conversations with such vile people. They do this to investigate to get convictions, obviously, but they do that very clearly with a view to try and protect children.

The Minister for Ageing, who is at the table, is a former Queensland police officer. It was only last year that the Queensland police were successful in conjunction with the Netherlands police, I think, in tracking down a very prolific child pornography gang. Not only did they do that, they were actually able to ensure the release of a little girl who was held by the perpetrators of those offences for about 18 months. That was a sterling bit of police work and it shows what happens when people of goodwill can get together. That is why we should actually support our police; it is not just what they do out on the roads and what they do in their more publicly recognised work, it is what they do in being able to achieve those sorts of results. It is something for which we are entirely indebted to them.

For those of us who are parents, there is nothing that we want more than to ensure that our kids are safe. It is not just for the younger members of parliament, who still have that pleasure ahead of them, but also for the people that we represent as members of parliament. When we talk about families we are actually talking about the nurturing qualities of a family that wants to bring their children up, go to their football matches, ensure that they get their proper education and go to university or go into the trades. From a grandparent’s point of view, and the relationship that I have with my kids, that it is a whole-of-life task. You never actually lose contact with your children and it continues in relation to your grandchildren.

We want the best for our young people coming up, and that is one of the reasons I find this such a difficult bill to speak on. It is a very easy bill to support, but we are reflecting on a society where we need these laws to deal with something in society now that strikes me as anathema to the society that I grew up in. Maybe we have been shielded from various things as we have grown up because of the love and care of our parents—that has had more impact on some more fortunate people in society than others—but one of the things that we just cannot do is simply allow society to take care of this itself. For far too long we have seen what we read in the history books, and what is occurring in some of those closeted religious areas.

One of the things that really brings this to a head for me is a 70-year-old bloke who is a member of the forgotten generation. He came down here for the Prime Minister’s apology not all that long ago. This bloke is from my electorate and he told me how he came here from England. He went to a facility in Perth and, regrettably for him, that is where he was first sexually assaulted. I suppose that these things have been in society for some time and have probably been kept in the back room and out of the public arena. But these are things that I think are so vile—that anybody exercising authority can actually use their standing over a child in such a way.

It is apparent to me that there is a growing sexualisation within society. Children are now exposed to more sexual imagery through advertising, mass media, television, magazines, gaming, the internet et cetera. In my opinion, with this increasingly sexualised culture comes a new danger for children and, clearly, challenges for parents. The sexual exploitation of children is distressing for the families involved and devastating for the victims, the children. It has such a far-reaching impact on those kids. That is why I mentioned my colleague from the electorate. He tells me that his stutter commenced when he was first assaulted in the orphanage in Perth when he was 17 years old, and he is still stuttering now. This man obviously has long-term issues as a result. That is an example of the dynamics of crimes of this nature perpetrated on children.

I was talking with the member for Hindmarsh, and one of the things that he and I are both involved in is White Ribbon Day—men standing up against violence against women and children. One of the things that we regularly quote is that one in three women will report domestic violence against them. Very importantly for this debate, one in five women over a generation is likely to be sexually assaulted. In my own situation—referring to my mother, my wife, my daughter and my two grand-daughters—that means that, within those three generations of women, one of them is likely to experience sexual assault. If everyone can personalise it in those terms, amongst our loved ones, they can see this is an extraordinary situation impacting on our society.

This bill is really about looking after kids and looking after their welfare. As I said earlier, it aims to strengthen the existing offence regime to reflect more appropriately the changed and ever-changing circumstances of sexual violence that we now see being perpetrated against children. Effectively what we are doing is ensuring that our laws keep pace with the rapidly changing technology.

I would like to take a little time now to speak about some of the details of the bill which I consider go a long way to providing additional protection for our children. Presently, the Commonwealth offences regime criminalises child sexual exploitation committed by Australians overseas—more commonly known as child sex tourism—and offences occurring through a carriage service such as the internet or mobile phones. This bill seeks to strengthen the existing child sex tourism offences regime by simplifying the structure of the existing offences, raising penalties and introducing several new offences, including one I believe is very important—that being a new aggravated offence where the offender is in a position of trust or where the child victim has a mental impairment.

The bill will also introduce new offences criminalising dealings in child pornography and child abuse material overseas, ensuring that Australians engaging in such behaviour outside Australia can be prosecuted in this country. I believe that these improvements will bring our approach to people committing these offences overseas in line with the way we approach those offences domestically in this country and ensure that Australians are subject to consistent sanctions whether those vile acts are perpetrated on children outside the country or within the bounds of our jurisdiction.

These proposed reforms are very much supported and advocated by the child protection agencies and organisations that work for the protection of children. As the minister indicated in his second reading speech, child protection organisations such as Save the Children and Child Wise, when consulted about these proposed reforms last year, both indicated that these changes would definitely strengthen our capacity to prosecute child sex offenders. Child Wise said that this would ‘see Australia again being a leader in international best practice in relation to legislation and policing of child sex tourism’. That is something we probably should not just hang our hat on, because we will be making more and more changes to this style of legislation as technology changes.

As I said, the intent of this legislation is to ensure that we can keep pace with changing technology and to ensure that people who are using technologies—for example, the internet—to perpetrate crimes against children not only can be policed but also can be brought to justice. Clearly, the internet is a wonderful instrument. It is a great way for kids to learn. In fact, we are in the process of a very significant rollout of computers across the nation. It is something that can impact on the learning skills of all our kids. However, whilst the internet is a great learning tool and it is fun, it also has the capacity to be used by others with less-than-good intentions.

Children learn from an early age how to use a computer. My grandson, Nathaniel, at age eight has far more computer skills now than I am ever likely to acquire. When I need things downloaded, he can certainly find his way around the net to get what I need. But he is eight years old, and the trouble with being so skilful at eight years old is that when their curiosity kicks in they can do just about everything. Unfortunately, there will always be somebody out there on the internet waiting to prey on children. That is what parents really have to guard against.

I have acknowledged the good role of the police in this regard. Having spent a bit of time with the police, particularly with the high tech crime operations unit in Canberra, and having seen how they work in conjunction with their state and territory colleagues, I applaud their work. I think their job is very difficult. Being a police officer is one of the few occupations where you get to see the best and the very, very worst aspects of society, and police need to take it all in their stride. Once again, I congratulate and applaud police officers for what they do in a raft of things, particularly for the way they are aggressively pursuing perpetrators of these crimes against children.

To combat these emerging opportunities presented by technological advances, the bill will introduce two new internet offences: raising penalties for internet child pornography and child abuse material offences, including through the introduction of a new aggravated offence directed at online child pornography networks; and new network offences of exposing children to indecent material and engaging in sexual activity with a child over the internet—in other words, actually using the internet as the vehicle for perpetrating the offence on the child. These necessary reforms will ensure that the regime is sufficiently strengthened to assist in prosecuting this modern day offending.

I encourage parents to remember the dangers of the internet. Through Minister Conroy’s portfolio, we have looked at internet filters. These are things that should not be left on the shelf until something occurs, after which parents make proper use of them. These are things that have been introduced for a very good reason. For parents, and people like me who are less than skilled on the computer, there is no excuse not to ensure a child—in our case, our grandson—only does on the computer what they have been allowed to do.

The bill introduces a suite of new offences directed at the use of the post service for child sex related activity such as the distribution of child pornography or grooming or procuring a child. Whilst we have concentrated on internet offences, regrettably snail mail is still being used as a vehicle for these crimes. These new offences will mirror the online offences and ensure that consistent treatment of offenders occurs whether the offence is by internet or the postal service. The bill also makes minor consequential amendments to several acts, including the Australian Crime Commission Act 2002 and the Crimes Act 1914, and will ensure that existing law enforcement powers are available to combat Commonwealth child sex offences, including new offences inserted by the bill.

Finally, the bill will introduce a new scheme to allow for forfeiture of pornography or child abuse material, or articles containing such material derived from or used in the commission of a Commonwealth child sex offence. Regrettably, whilst these offences take some time to proceed through the courts, it is only if there is a successful prosecution that the actual offending material is removed. Given the length of court time to secure convictions, I find it incredible that this material stays out there until a successful prosecution is obtained. The whole object of this bill is to protect children and prevent child abuse. This must always be a national priority. This piece of legislation is timely. It follows some horrific events of the last week in respect of young children. (Time expired)

Sussan Ley (Farrer, Liberal Party, Shadow Assistant Treasurer) Share this | Link to 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.

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

It is a pleasure to follow the member for Farrer and my colleague the member for Werriwa in speaking to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010. I rise this evening to speak in support of this bill. I would like to take this opportunity initially to welcome the efforts of the Minister for Home Affairs, the Hon. Brendan O’Connor, for introducing this very important piece of legislation to the House.

The bill before us is important, because not only does it recognise the need to protect children from all forms of sexual exploitation and abuse; it also identifies the rapidly changing circumstances and media through which these crimes occur. This bill serves to strengthen our commitment to enforcing existing mechanisms that serve to prevent the sexual exploitation and abuse of children, and in doing so it most certainly strengthens Australia’s international legal obligations towards the ratification of the UN Convention on the Rights of the Child, which legally obliges all states to protect the rights of children at both the national and international levels. The legislation before us carries on from a fine tradition as far back as the Keating Labor government’s introduction of an extensive legal framework against child abuse. I am very pleased that this government has not only seen fit but is very willing to assume its national and international responsibility through a strengthening of the Commonwealth child sex related laws.

This issue is of particular importance to Australia. We are located in a region where many neighbouring countries are home to large numbers of children growing up in circumstances of dire poverty and disadvantage, and as such we have a very important role to play in effectively tackling sexual crimes against children, which are primarily built on the exploitation of the most weak and the most vulnerable. Indeed, the member for Farrer talked just a little while ago about her experiences in Cambodia, and I am sure that we all find that most repulsive and unacceptable.

That is why the new offences introduced in this bill are of great importance in tackling this very difficult and disturbing issue. As there are currently no offences applying extraterritorially to Australians dealing in child pornography and child abuse materials overseas, the introduction of the new offences outlined in the bill serves to close the gaps within existing legislation. Any Australian possessing, controlling, producing, distributing or obtaining child pornography or child abuse material anywhere and at any time is subject to Australian Commonwealth law.

The proposed reforms to the existing child sex tourism regime are of great importance because they ensure that Australians who commit crimes overseas will remain subject to our Commonwealth laws. By making specific reference to procuring and grooming a child overseas for sexual activity, this bill ensures that our federal law enforcement agencies are able to tackle effectively all avenues through which the child sex tourism industry attempts to operate. This issue lies at the heart of our national judicial framework, because not only does it serve to perform the normal functions of law that operate within Australia but it is specifically designed to address issues of the particular vulnerability of those which it is designed to protect. Our society, like others around the world, will be judged on the basis of what we do to protect our most vulnerable. As the line of reasoning goes, ‘The test of morality of a society is what it does to its children.’

The introduction of this bill is, as I said, a reflection of the federal government’s responsiveness to the position and attitude of the Australian public towards this issue. There is an intrinsic demand amongst all Australians that the government take all appropriate measures against the sexual abuse and exploitation of children, wherever it may occur. It is hard to imagine that, not so long ago, talk about the issue of child sex abuse was virtually nonexistent. This silence was not a reflection of any absence of child sex related crimes but merely something that was not strong in the public discourse. It was only when a legitimate focus by the public on the issue of child sex abuse was able to be translated into the political realm that government initiatives, such as the one on which I am speaking and on which other honourable members have spoken before me in this House, have come about. It was only after this government initiative that legislative instruments aimed at protecting our most vulnerable were introduced into the Commonwealth’s judicial framework.

As Associate Adjunct Professor of Psychology Dr BJ Cling, of St John’s University in New York, said:

By the early twenty-first century, the issue of child sexual abuse has become a legitimate focus of professional attention …

She goes on to say that:

… the systematic study of psychological trauma … depends on the support of a political movement

As such, this bill is a reflection of the political will of this government to ensure that the protection of children against sexual exploitation and abuse remains a legitimate focus of both public and professional attention. It says to the people of Australia: it does happen, it does matter and it is of interest. It says to the perpetrators of such horrendous crimes that the Australian government and its people will continue to strive to ensure that there remains no sanctuary anywhere in the world from which crimes against the world’s most weak and vulnerable can be committed. The reforms outlined in this bill are tough precisely because they serve to be just and fair to the children whom they are designed to protect. It says to these criminals: if you partake in the devastating act of sexual exploitation and abuse of children, you will be subject to the maximum penalties that are available under the law.

We know that the widespread use of modern technology serves as a basis for our nation’s development into the future, but unfortunately the widespread accessibility of the internet and other forms of information and communication technologies also means that, where there is a market, those technologies can be exploited for criminal purposes. As sexual crimes against children have become a widespread form of criminal activity, the reforms introduced in this bill serve to reflect the multifaceted nature of these crimes. As such, through these reforms, the Australian government aims to employ a full range of mechanisms aimed both at strengthening the existing instruments in place to keep up with technological advances and at introducing new ones as a comprehensive measure against child sexual offences in areas of Commonwealth responsibility.

Non-governmental child protection organisations have long pressed for reforms to be introduced. As Minister O’Connor has already outlined, the Save the Children organisation noted, during a broad consultation process on these proposed reforms, that the measures introduced in this bill would:

… definitely strengthen Australia’s capacity to prosecute would be child sex offenders.

Adding to Save the Children’s assessment, Child Wise also lent its support to measures that would see Australia:

… be the leaders in international best practice in relation to the legislation and policing of child sex tourism.

In a world where social upheavals are common and environmental disasters, such as the catastrophic earthquake visited on Haiti in January of this year, are becoming more prevalent, the breakdown in the social order has a disastrous effect on children first and foremost. Releasing a new report, Anne Veneman, Executive Director of the United Nations child welfare agency, UNICEF, also confirmed the view that mass displacement and the breakdown of the social and economic order increase the vulnerability of children, who ‘are at high risk of being separated from their families and more vulnerable to sexual and other abuse, including trafficking and abduction’. These findings are underscored by the Haitian communications minister, who recently acknowledged that, with his government’s priority focused on food and shelter, stories of sexual assaults in makeshift encampments would remain unaddressed.

That is why the responsibility falls upon countries such as Australia to strictly enforce laws against child sexual abuse and exploitation in order to deny child sexual predators a haven from which to procure or groom a child overseas for sexual activity or to prepare or plan for sexual activity with a child overseas. As we send aid abroad to assist nations to rebuild and recover from tumultuous events, we need to ensure that we are also investing in protecting those who are most vulnerable to such chaos and disorder.

I would like to end on the following note. Our children inhabit a world which we help manage, a world that offers them a wealth of opportunity, yet a world in which the preservation of their innocence rests on our ability to help create a better and safer world for them. That is why the introduction of legislative amendments such as these goes to the heart of what we here in the House, as elected representatives, aim to provide for Australia and for the world’s children. Keeping our children safe from predatory sexual behaviour through legislative instruments such as the one before us today serves to do just that. I commend the bill to the House.

Sophie Mirabella (Indi, Liberal Party, Shadow Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I rise to support the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 this evening in the House. It is a bill that aims to strengthen the existing child sex tourism offence regime and makes amendments to child sex offences committed outside Australia. The coalition will always support any measures that increase penalties for those who commit sexual offences against children. Anyone who preys on children, no matter where those children live in the world, deserves to feel the full weight of the law. Let’s make it clear: any Australian who engages in that sort of behaviour while overseas represents an ongoing threat to Australian children on their return home. It is therefore in the interests of all Australian families to crack down on these people and to ensure that they do not find refuge in the laws of other nations, some of which have softer laws in this regard.

We face many challenges in the changing world. The World Wide Web, while a wonderful innovation in communications that has been touched upon by other speakers, does provide pitfalls for children and, unfortunately, opportunities for those who prey on children. Social networking on the internet continues to grow very rapidly, and avenues for inappropriate contact with children have opened up at a similar pace. We hear stories of unfortunate contact between these adults and some of the underage children on which they prey. We almost get daily stories in the media about them. It is no different elsewhere in the world. Governments all over this planet face challenges in ensuring that laws keep pace with changing trends.

It was back in 2005 that the coalition government included offences for using a carriage service, such as internet or mobile phone, for child sex related activities, including it in division 4 of the Criminal Code. It was the coalition that created the NetAlert program, which offered a free internet filtering scheme for all Australian households. This actually allowed parents greater control over their children’s internet activities. This is an area of great concern for parents. They want to take on the responsibilities of parenting and want to have the tools to help them do so. Many obviously are not as technologically savvy as their much younger offspring, but this at least gave them an opportunity and an empowerment to do something about it. It was NetAlert that the Rudd government, in its wisdom, decided to scrap in favour of its Big Brother style mandatory filtering system, which has drawn an enormous amount of criticism from industry and across the community—and across, I must say, a diversity of organisations and community groups.

While I do strongly support this bill in principle, I know the shadow minister has flagged some issues in relation to the practical application of the new child sex offences outside Australia. This government does not have a very good record when it comes to matching rhetoric with practical results. So I certainly hope that this bill is going to be more than just window-dressing and that it will be able to have a practical application. I do find it somewhat ironic that we are looking to crack down on offences committed outside Australia, when I do not believe we do enough to combat offences committed right here in Australia.

It is my very strong view that we do need to strengthen sentences for those who commit crimes against children, particularly those who commit paedophilia. We only tend to discuss this issue when it makes front-page news or when there is some particularly gory story. Last year in this place I raised the case of convicted paedophile Dennis Ferguson, who was at the time forced to move out of his latest abode. I noted that it was only a matter of time before we once again saw an outraged local community, concerned mums and dads and grandparents, holding placards and rallying against having Mr Ferguson as a neighbour. Each time this happens we see public opinion divide into two camps. The much larger one believes that this repeat offender ought not to be living in any community with children—understandably, certainly not theirs. The smaller camp decries vigilantism and claims that this person has a right to live in the community, having done his so-called time.

I believe we need to stop for a moment and look at the concept of what it means to have done his so-called time. What does our society consider to be an appropriate sentence to fit the crime of sexually penetrating—but let us call it what it really is, of raping—a small child or three children? The offensive example of Dennis Ferguson is a case in point. This particular fellow planned his crime while doing time in Long Bay jail for a range of offences that included various assaults on children and indecent assaults on females. When he was released from jail he and his partner tracked down a fellow inmate’s three young children aged six, seven and eight. He abducted them from their home in Sydney and flew them to Brisbane, where he held them prisoner and repeatedly raped them until the police arrived some days later. The judge in Ferguson’s trial said that the chances of rehabilitation were zero, but he was sentenced to just 14 years—14 years for a crime so premeditated and so vile, a crime that no doubt imposed a life sentence on those most vulnerable victims, those three small children.

Sadly this is not a one-off case. We appear to have a somewhat double standard when it comes to sexual offences. If they are perpetrated against an adult without their consent, it is an aggressive act and very serious business. If they are perpetrated against a child, it is that less talked about child molestation thing, the thing that so many people feel uncomfortable about discussing. The focus seems to shift to the sexual deviancy of the perpetrator and away from victim. While it is difficult to get a clear understanding of the sentencing of child rape vis-a-vis adult rape, as many jurisdictions classify them all as sexual offences, there is evidence that we do not afford our children the same level of sentencing protection as we do adults.

The Victorian Sentencing Advisory Council provides statistical information on sentencing. It found that in Victoria from 2006-07 to 2007-08 the average effective sentence term for cases with sexual penetration of a child aged 10 to 16 was just 1.9 years for a single offence. It was just 3.3 years if the child was younger than 10. In fact, if there had been up to 10 sexual offences committed against the child, those averages rose to just 4.8 years and 5.2 years. The median length of imprisonment for rape of an adult was five years, with sentences varying from two to 20 years. I am not for one moment arguing that one crime is less heinous than the other—they are both abhorrent. But I do believe that we have a very special duty of care to protect the most vulnerable in our community and the most innocent, and children are on top of my list.

When I rose in parliament last year to raise this issue I pointed out that it is not something that people like to talk about, because it is disturbing and distasteful. I am very pleased, though, that attitudes in recent years have changed and there are more people prepared to talk about it. I pay tribute to a lot of the victims who, although it is a very painful process for them, have assumed a public advocacy role on this issue. When we look at it from an economic position, it is estimated that child abuse costs our nation about $4 billion a year. The social price we pay, of course, is much higher and impossible to estimate. Women who have been abused as children have considerably higher risks of experiencing sexual violence in their adult lives than the rest of us—54 per cent compared to 26 per cent for all women. Perhaps the most disturbing aspect is that the sexual offences that come to the attention of police are only a small proportion of the sexual offences that actually occur in the community.

It is appropriate and important that the government strengthens laws in relation to child sex offences committed by Australians overseas and I support this bill, which aims to do that. I am glad that the bill also introduces new offences for the steps leading up to actual sexual activity with a child. It is all the better if we can raise convictions for predatory behaviour before actual offences occur. As a lawyer in a former life, I am all too familiar with the ability of someone who the average person in the street would consider guilty to escape a conviction through the clever advocacy of a lawyer. By tightening these laws, including those relating to activity that leads to a heinous crime against a child, we are closing some of those loopholes.

At the same time, I strongly believe that tougher sentences right across the board in relation to child sex offences need to be looked at. We have seen in all sorts of criminal areas that, where the penalty is rather light, the disincentive does not exist to deter people from behaviour that we consider socially unacceptable. We need to have tougher sentences. This is not just some populist view. This is the desire of so many parents, grandparents and others out there in the community. They do not believe that sentencing is tough enough, particularly in the area of child sex offences. I believe the way we view the crime of paedophilia needs to be rethought. The terminology we use to describe crimes against children needs to be stronger. As I said last year, the outrage we feel as a community should not be confined to when a paedophile moves into our neighbourhood; it needs to be ongoing and vigilant. I also believe that the concepts of trust, protection and love within a family need to be reinforced in our society and that the value of children and good parenting needs to be underscored and supported.

Many related issues, such as the premature sexualisation of children, are also a concern. That is a growing issue that we need to address as a society. While lingerie is being targeted at four-year-olds and highly sexualised imagery is being used to sell all sorts of things to the tween market, we really need to look at how the old ‘sex sells’ adage is being applied to children. This is a disturbing and terrible trend. We need to be more vigilant and, as a society, care more about the impacts that is having on younger and younger children, particularly girls. Paedophilia and its associated industries and activities are not an easy issue with a quick fix but a problem that we have started to acknowledge, that we need to acknowledge and that we need to discuss more openly.

I am glad that the federal government is moving to strengthen the existing regime in relation to child sex offences committed overseas and I commend the bill to the House. I sincerely hope that it will lead to the conviction of those who prey on children and, in that way, make our local communities safer and save some of our children from the life-changing negative impacts of having their freedom, liberty and innocence taken away from them. But, let us be honest, it is just the tip of the iceberg when dealing with this issue. I once again would like to take this opportunity to call on all governments around the country to take a closer look at their laws and to take steps in relation to child sex offences. They have vast departments and many lawyers working for them. They need to do the hard work to ensure that sentencing laws in relation to child sex offences more appropriately fit the crime and more appropriately reflect community attitudes. Perhaps this is one of those areas where lawyers, particularly those who work for government, could put aside their obsession with the so-called rights of criminals and perpetrators and think for once to bias their work in favour of that very vulnerable, innocent group in society, children.

The protection of our children is absolutely the highest responsibility we have as legislators. That may not make the front-page news. That may not be what drives many ambitious politicians. But children are the future of this nation. If we let them down in this very basic way we are not worthy of the office that we hold. I look forward to continuing to work for and support the strengthening of our laws on this issue.

Debate interrupted.