George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I table the explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

INTRODUCTION

The Bill is a simple and straightforward Bill that takes a technical approach to addressing gaps in federal criminal laws targeted at child exploitation. This Bill has two purposes.

Firstly, it will introduce two new offences into the Criminal Code that provide specifically that it is a crime to transmit child pornography and child abuse material by post and, secondly, to standardise the penalties for transmission of child pornography and child abuse material – whether by post or carriage service – across a range of legislation.

Secondly, the Bill will standardise the penalties for federal child pornography and child abuse offences, no matter what distribution channel is used.

BACKGROUND

Typically, child pornography offences are offences which are covered by state, rather than Commonwealth criminal law.  All states have offences criminalising the possession, manufacture, sale and supply of child pornographic material, typically attracting severe penalties to reflect the nature of the crime.

The Commonwealth entered the field of specific anti-child pornography and anti-child abuse offences in 2004, by introducing a range of new offences under the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act 2004. 

In construction of the Federal criminal law generally, it has been the practice of the Howard Government to create federal offences that overlap with state law.

This is a sensible approach as demonstrated in the debate on the Law and Justice Legislation Amendment (Serious Drugs Offences and Other Measures) Act 2005 by the Acting Minister:

The approach of having overlapping federal and state offences will ensure that there are no gaps between federal and state laws that can be exploited by drug cartels.

This was also the expressed view of the Attorney-General’s Department in evidence on the hearings on the then Bill:

The second part of the bill enacts a range of new domestic offences which apply for the first time at Commonwealth level. As I said, those offences are not designed to override state and territory law but to give Commonwealth agencies the full range of options that they require.

There is no question that the correct action upon identifying deficiencies in the Federal criminal law is to enact new offences to ensure there are no gaps between federal and state laws that can be exploited by criminals, including paedophiles.

THE ISSUE

I will now give a brief précis of the federal criminal law in this area which will demonstrate the gap in federal legislation.

Telecommunications Offences for Child Pornography and Abuse Materials

Firstly, the approach of the Commonwealth criminal law in relation to telecommunications offences is to create specific offences against child pornography and child abuse materials.

The 2004 Telecommunications Offences and Other Measures Act mentioned above included offences of:

• using a carriage service for child pornography material
• possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service
• using a carriage service for child abuse material
• possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, and
• failure of an internet service provider or internet content host to inform the Australian Federal Police on becoming aware that child pornography or child abuse material is accessible through their services.

Export and Import Offences for Child Pornography and Abuse Materials

Secondly, the approach of the Federal criminal law in relation to import and export also creates specific offences for child pornography and child abuse materials.

There is an offence (section 233BAB – Special offences relating to Tier 2 goods) under the Customs Act in which subsection (1)(h) lists child abuse and child pornography material as a Tier 2 good, and subsections (5) and (6) create the offence for import or export respectively.

Postal Offences of Child Pornography and Abuse Materials

But when we consider the third channel of distribution under federal control, that is postal and like services, we find that there is no corresponding specific offence for the use of a postal service to transmit or distribute child pornography or abuse material.

The closest similar offence is a general offence under the Criminal Code, s471.12, which states:

A person is guilty of an offence if:

(a)

the person uses a postal or similar service; and

(b)

the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 2 years.

This is another inconsistency as it creates essentially two tiers of offences for what is essentially the same action – mailing child pornography or abuse material.  Under the existing federal law, if child pornography is mailed into or out of Australia, then an offence with a maximum penalty of 10 years imprisonment and 2,500 penalty units applies, yet if child pornography is mailed within the borders of Australia, then there is no specific offence, but a general offence applies (to a maximum penalty of 2 years imprisonment, see above).

In summary then, the federal law as it presently stands treats child abusers and child pornographers differently according to their chosen distribution channel:

• if the distribution channel is through import/export, the maximum penalty is 10 years and/or 2,500 penalty units (presently that is $275,000).
• if the distribution channel is through a carriage service (such as the internet), the maximum penalty is 10 years.
• if the distribution channel is by post within Australia, the maximum penalty is two years.

Labor believes this is not satisfactory for two reasons:

(1)

there is an expectation that like offences be treated alike in terms of penalties. This general mail offence carries only a penalty of two years, whilst its equivalent under the Customs Act (i.e. for importation) is 10 years and $2,500.

(2)

the penalty under the mail offence is itself manifestly inadequate considering the gravity of these types of offence.

The Bill therefore intends to correct these deficiencies.

Labor’s Position

Labor believes that these are loopholes that need to be closed.  Because a specific offence for transmitting child pornography via a carriage service, and an offence for importing and exporting child pornography by post it is simply a matter of logical extension that a specific offence for transmitting child pornography via mail within the borders of Australia be created.

Standardisation of Penalties for Existing Offences

The Bill I am introducing also contains provisions to standardise the penalties across the range of Commonwealth offences relating to child pornography and child abuse material.  There is a legitimate expectation amongst the public that like offences will attract like penalties.  But, as I have already noted, there is a problem in that the only Commonwealth offence which might apply for the transmission of child pornography and child abuse material by post within Australia has a maximum penalty of two years imprisonment.  Again, that is plainly inadequate.

However, there is also the additional problem that the penalties for the offences under the Customs Act and the offences under the Criminal Code do not align, being ten years imprisonment and 2,500 penalty units and ten years imprisonment respectively. 

If like offences are to be punished in a like manner, there should be consistency across sentencing provisions.  To that end, the Bill fixes that the inconsistency, and standardises the offences to ten years imprisonment and 2,500 penalty units, which is the higher penalty, under the Customs Act.  This is also the penalty that is provided for in the new offences.

ISPs and Internet Content Hosts

Finally, the increase in penalties also extends to an offence relating to breach of obligations on Internet Service Providers.  ISPs and internet content hosts are presently required (under the Criminal Code) to inform the Australian Federal Police if they have reason to believe that a person is using their service to access child pornography or child abuse material. 

Failure to do so presently attracts a penalty of up to 100 penalty units.  The proposed Bill will raise this to 2,500 penalty units.  This increase, while substantial, reflects both the same level of financial penalty that applies to the offences of transmission of child pornography, and the overwhelming community disgust at not only those who produce and distribute this vile material, but also to those who wilfully turn a blind eye to it.

While I am positive that the majority of ISPs do what is right, the offence nonetheless stands as a deterrent for those who do not, for whatever reason.

The increased penalty therefore will strengthen the deterrence, and properly reflect community opinion. As a safeguard, and commensurate with the increase in penalty, under the Bill ISPs are granted access to the defences created by sections 474.21 and 474.24.

Conclusion

Labor believes these are loopholes that need to be closed.  It should not be the case that there is a specific offence for transmitting child pornography via a carriage service, and an offence for importing and exporting child pornography by post but no specific offence for transmitting child pornography via mail within the borders of Australia.

The proposed Bill would introduce new offences (and update the old offences to increase the penalties) which would correct this situation.

The offences in this bill will operate alongside state and territory offences to give more flexibility to law enforcement agencies in identifying and pursuing charges against paedophiles and child abusers. The approach of having overlapping federal and state offences will ensure that there are no gaps between federal and state laws that can be exploited by paedophile rings.

I commend this Bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.