Chapter 3Criminal justice framework
3.1There is extensive Commonwealth legislation in place that relates to child exploitation and child abuse material (CAM). A key interest for the committee is whether the existing criminal justice framework adequately supports law enforcement to combat this crime type.
3.2This chapter first surveys the existing legislation. It then examines the following key issues raised in evidence:
Consistency between Australian jurisdictions.
Adequacy of existing criminal offences.
Appropriateness of criminal sentences and penalties.
Current legislative framework
3.3The wide range of legislation, international agreements, and other measures to address child exploitation can be grouped in various ways. This section outlines key elements of the current legislative framework as follows:
Criminal offences relating to child exploitation.
Surveillance and interception by law enforcement.
The regulatory framework provided by the Online Safety Act 2021.
International agreements and initiatives.
Criminal offences relating to child exploitation
3.4Criminal offences relating to child exploitation are in Commonwealth legislation as well as state and territory legislation.
3.5The Commonwealth Director of Public Prosecutions (CDPP) advised that '[a]ll Commonwealth child sex offences are now consolidated into the Criminal Code(Cth)'. It said there is 'a broad range of alleged offending conduct captured in Divisions 471, 474, 271, 272 and 273 of the Criminal Code (Cth)', including:
sexual activity with a child whether overseas or online;
seeking sexual activity with a child, including grooming and procuring a child, either online or overseas;
offences relating to child abuse material, either overseas or involving the use of a carriage service or the postal service, including administering an electronic service for the commission of offences in relation to child abuse material;
transmitting indecent communications to a child under the age of 16.
3.6The Department of Home Affairs advised there are also relevant criminal justice matters provided by the Crimes Act 1914, such as sentencing, bail, and vulnerable witness protection.
3.7The CDPP reported that '[b]etween 2010 and 2020 there has been significant legislative reform in relation to Commonwealth child sex offences, sentencing for those offences, and in the protection of vulnerable witnesses'. A representative of the Attorney‑General's Department, Ms Tara Inverarity, also told the committee:
From our perspective, a lot has been done to address some of the criminal justice challenges associated with child sexual exploitation and abuse, including recent reforms in 2019 and 2020 which strengthened our legislative framework for criminal justice responses in this area.
3.8Recent Commonwealth legislation relating to child exploitation includes the following:
Crimes Legislation Amendment (Sexual Offences Against Children) Act2010. This Act made a range of amendments relating to child exploitation, including the introduction of new offences. The explanatory memorandum for the bill said it 'will ensure comprehensive coverage of sexual offences against children, including reflecting best practice approaches domestically and internationally'.
Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013. Among other things, this Act made changes to protect vulnerable witnesses in Commonwealth criminal proceedings. The explanatory memorandum for the bill said this included adding 'a new category of vulnerable witness protections to the Crimes Act to assist victims of child sex-related, slavery, slavery-like and human trafficking offences to give evidence in retrials and subsequent trials for those offences'.
Criminal Code Amendment (Protecting Minors Online) Act 2017, also known as 'Carly's Law'. The Act introduced an offence for using a carriage service (such as the internet) to prepare or plan to harm, procure, or engage in sexual activity with a person under 16 years of age.
Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017. The Department of Home Affairs explained that this Act 'placed restrictions on travel by registered child sex offenders'. It introduced an offence 'for a registered child sex offender to depart Australia without permission from the relevant State or Territory competent authority' and also 'authorised Australia's Minister for Foreign Affairs to deny a passport to a reportable offender upon request from a State or Territory competent authority'.
Combatting Child Sexual Exploitation Legislation Amendment Act 2019. The Department of Home Affairs explained that this Act:
'expanded the meaning of "child abuse material" and removed references to the out-dated and inappropriate term "child pornography"';
criminalised the possession of child-like sex dolls and certain conduct in relation to them, including importation, posting and ordering; and
introduced a new offence for 'possessing or controlling child abuse material obtained or accessed via a carriage service'. The Australian Federal Police reported that this was the second most commonly used Commonwealth offence in 2020-21, with 264 counts.
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020. The Department of Home Affairs advised that this Act 'targets all parts of the criminal justice cycle for child sex offenders – from bail and sentencing through to supervision after prison time'. It said key effects of the Act include:
criminalising 'conduct relating to an electronic service – such as creating or moderating a website or chatroom – for the purposes of committing or facilitating the commission of child abuse material offences'; and
introducing a mandatory minimum head sentence of four years imprisonment, 'with certain exceptions', for '[a]dult offenders committing the most serious Commonwealth child abuse crimes and repeat offenders'.
Crimes Legislation Amendment (Economic Disruption) Regulations 2021. The Australian Federal Police (AFP) said this instrument amended the Proceeds of Crime Regulations 2019 to provide that certain child exploitation offences 'are "serious offences" for the purposes of seizing proceeds of crime under the Proceeds of Crime Act 2002'. The Department of Home Affairs submitted that 'these provisions enable non-conviction based asset confiscation, meaning that the person whose property is restrained and forfeited does not have to be convicted, or even charged, with an offence'.
Surveillance and interception by law enforcement
3.9Key elements of the electronic surveillance framework that relate to countering child sexual abuse were described by the Department of Home Affairs:
The Telecommunications (Interception and Access) Act 1979, which:
…provides a legal framework for national security and law enforcement agencies to access information held by communications providers to investigate criminal offences and other activities that threaten the safety and security of Australians.
The Surveillance Devices Act 2004, which:
…provides a single legislative regime for Commonwealth agencies to use surveillance devices (such as optical, listening, tracking and data surveillance devices) and a warrant framework to access data held in computers. The Act also authorises state and territory law enforcement agencies to use surveillance devices and access data held in computers under the Commonwealth regime in defined circumstances.
The Telecommunications Act 1997 'sets out how telecommunications are regulated in Australia and includes the industry assistance framework introduced by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018' (discussed below).
The Crimes Act 1914 'is also a part of the electronic surveillance framework'; it includes 'computer access warrants for law enforcement'.
3.10The Office of the Commonwealth Ombudsman advised that the Ombudsman oversees law enforcement's use of certain covert, intrusive or coercive powers. This includes, for example, data disruption warrants under the Surveillance Devices Act 2004 and international production orders under the Telecommunications (Interception and Access) Act 1979.
3.11Key recent amendments to the electronic surveillance framework are outlined below.
Surveillance Legislation Amendment (Identify and Disrupt) Act 2021
3.12A major reform in this area was the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (SLAID Act), which commenced on 4September2021.
3.13The Department of Home Affairs explained that the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 would introduce three new types of warrant for the AFP and the Australian Criminal Intelligence Commission (ACIC) 'to enhance the ability of the AFP and the ACIC to keep pace with technological trends, and respond to serious cyber‑enabled crime'. The warrants are:
data disruption warrants to enable the AFP and ACIC to access computers and modify data belonging to individuals suspected of criminal activity in order to frustrate the commission of serious offences online;
network activity warrants to enable the AFP and the ACIC to access computers for the purpose of collecting intelligence on the most harmful criminal networks of individuals suspected of engaging in or facilitating criminal activity, including those on the dark web and using anonymising technologies; and
account takeover warrants to enable the AFP and the ACIC to take control of a person's online account for the purposes of gathering evidence about criminal activity, to further a criminal investigation.
3.14In October 2022, the Attorney‑General's Department advised that agencies have commenced using these powers 'including to target alleged child sexual offenders'.
Telecommunications and Other Legislation Amendment (Assistance and Access) Act2018
3.15The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA) introduced a new 'industry assistance framework' for 'national security and law enforcement agencies to work with designated communications providers…including in the execution of a warrant'.
3.16TOLA was a response to the widespread adoption of encryption, which the Department of Home Affairs said 'hinders the utility of traditional electronic surveillance powers, such as interception warrants, to gather intelligible information'. However, the assistance framework:
…cannot be used to ask providers to build a systemic weakness or vulnerability into a form of electronic protection. This includes actions which would make systemic methods of authentication or encryption less effective.
3.17The Department of Home Affairs reported that since its commencement, 'the industry assistance framework has been used in a targeted and cooperative manner to resolve technical issues hindering the investigation of a range of serious crimes'.
Telecommunications Legislation Amendment (International Production Orders) Act2021 and the AUS-US Data Access Agreement
3.18The Department of Home Affairs explained that the Telecommunications Legislation Amendment (International Production Orders) Act 2021 'provides a framework for Australian agencies to obtain data directly from overseas communications providers where Australia has an agreement (such as an Australia-US CLOUD Act agreement)'. This is a reference to the Agreement between the Government of Australia and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime (also known as the AUS-US CLOUD Act Agreement or AUS-US Data Access Agreement).
3.19The Attorney-General's Department explained the importance of this agreement, which the United States and Australia signed on 15 December 2021:
The United States is the largest data controller in terms of communications technologies, services and platforms, which means critical evidence of child exploitation offences is most often located within the United States.
3.20The Attorney‑General's Department submitted that the agreement, together with the international production order framework, will 'reshape Australia's international crime cooperation efforts by expediting the process for obtaining electronic data held in foreign countries'. It explained:
The Agreement achieves this by facilitating direct access to electronic data for investigations of serious crime between the jurisdictions of a foreign country and Australia. The Agreement enables authorities in each country to obtain certain electronic data directly from prescribed communication providers operating in the other's jurisdiction, significantly reducing the time taken to obtain information relevant to the ongoing detection, prevention, investigation and prosecution of serious crime.
3.21In December 2022, the Joint Standing Committee on Treaties reported that it supports the AUS-US Data Access Agreement and recommended that binding treaty action be taken. The Attorney‑General's Department advised that the agreement 'will enter into force upon exchange of diplomatic notes with the US'.
The Online Safety Act
3.22The Online Safety Act 2021 (Online Safety Act) was a major reform that came into effect in January2022. The Department of Home Affairs referred to the Act as providing 'the framework for regulatory responses to countering child abuse material' and said that '[t]he regulatory and law enforcement framework complement one another'.
3.23The Department of Infrastructure, Transport, Regional Development, Communications and the Arts submitted that the Online Safety Act 'empowers the eSafety Commissioner to prevent and respond to online child sexual exploitation'. Specific changes were described by the Office of the eSafety Commissioner (eSafety), which said that the Act:
strengthens the existing Online Content Scheme by expanding the number of services relevant to its operation, and providing the eSafety Commissioner the power to issue removal notices against 'class 1' content (which includes CSEM [child sexual exploitation material]) wherever that content is hosted, globally
creates new powers for the eSafety Commissioner to direct online app stores and providers of online search services to remove apps and delete links that allow access to that material where one or more class 1 removal notices have been ignored
introduces a set of Basic Online Safety Expectations through a ministerial legislative instrument that will allow the eSafety Commissioner to require transparency reporting on how services are keeping their users safe, including how they are preventing their platform from being used as a vehicle for CSEM
provides for the creation of one or more industry codes or standards to promote the adoption of responsible industry processes and procedures for dealing with online content issues, including CSEM.
International agreements and initiatives
3.24Submitters highlighted a range of international agreements that relate to child exploitation and child abuse material, including:
the United Nations Convention on the Rights of the Child and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography;
the Council of Europe Convention on Cybercrime (Budapest Convention) and the Second Additional Protocol on Enhanced Cooperation and Disclosure of Electronic Evidence; and
the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse (Lanzarote Convention).
3.25Other international initiatives cited in evidence include the following:
The International Statement: end-to-end encryption and public safety was released in October2020 and has been signed by Australia. The Department of Home Affairs said the statement 'calls on technology companies to work with governments to find mutually agreeable solutions to the issue of lawful access and public safety'.
A process is underway to 'develop a new United Nations convention on countering the use of information and communications technologies for criminal purposes (sometimes referred to as the UN cybercrime convention)'. The Attorney General's Department advised that an Australian delegation proposed including 'provisions criminalising specific online child sexual abuse and exploitation offences in the new convention', but this proposal 'remains outstanding as the text of the proposal has not yet been drafted or finalised'.
The Five Country Ministerial Forum is 'a forum for the Five Eyes security ministers to meet and discuss opportunities for collaboration on public safety and national security issues'. The Attorney‑General's Department is:
…continuing to work with international partners and industry through the Five Country Ministerial to encourage technology companies to voluntarily endorse and implement the Voluntary Principles to Counter Online Child Sexual Exploitation and Abuse.
The Vulnerable Populations Community of Practice Working Group was set up at the end of 2021 and:
…provides a forum for Five Eyes Law Enforcement Group agencies to collaborate on the identification of vulnerable populations being targeted by technology crime enactors involved in child sexual abuse and exploitation.
Consistency between Australian jurisdictions
3.26The CDPP explained the division of responsibilities between Commonwealth and state or territory prosecuting agencies:
The CDPP prosecutes Commonwealth child sex offences committed using a carriage service, using the postal service, or which are committed by Australians overseas. State and Territory prosecuting agencies prosecute other child sex offences, including those involving direct physical contact with children within Australia. If a matter involves a mixture of State or Territory offending and Commonwealth offending, arrangements exist between the CDPP and the State and Territory Directors of Public Prosecution to determine the most appropriate prosecuting agency to proceed with the matter. As a result, some Commonwealth child sex offences will be prosecuted by State and Territory prosecution authorities.
3.27The NSW Office of the Director of Public Prosecutions submitted that the range of available offences can cause confusion and more education for investigative agencies may be required:
Whilst the ODPP [Office of the Director of Public Prosecutions], as the relevant prosecution agency, is the arbiter of which charges will ultimately proceed in any given child exploitation matter, the availability of both NSW and Commonwealth offences in relation to the same or similar conduct can be a source of confusion for the investigative agencies involved at the charging stage, which suggests that greater education may be required. A greater understanding of the purpose and scope of available charges may also assist investigative agencies in determining what investigative tactics ought to be employed (for example, the use of fictitious personas).
3.28At some of its hearings, committee members explored the merits of introducing standalone legislation to govern CAM. When asked, Victoria Police Detective Superintendent Mary-Jane Welsh suggested there is a lack of CAM legislation 'that's consistent and coherent and that stretches across the country'. She said that 'Federation makes things very, very tricky when law enforcement is trying to deal with offending that crosses borders, nationally and internationally'. Victoria Police later submitted that its investigations face problems due to:
…the lack of standardisation nationally regarding the definition of a child - in Victoria, Tasmania, the Northern Territory and the Australian Capital Territory it is a person under the age of 18, in South Australia it is a person under 17, and in Western Australia, Queensland and New South Wales it is a person under 16. Under Commonwealth legislation, a child is a person under the age of 18. This causes challenges particularly with cross border offending where the activity may be illegal in one state but not another.
3.29Victoria Police also pointed out other differences between jurisdictions. For instance, it said Victoria Police investigators have deemed websites to contain CAM and referred them to eSafety, but eSafety did not assess them to be CAM because it applies a different definition.
3.30The Founder of Project Karma, Mr Glen Hulley, expressed support for standalone legislation:
This is an international borderless crime, where we're dealing with international syndicates, in some cases, right down to the guy living next door. There needs to be robust federal legislation that is recognised down at state level and enforced at state level, similar to terrorism legislation, to give those powers to law enforcement to act to protect children—not only Australian children but children in these vulnerable countries that our citizens are committing these crimes against.
3.31Mr Hulley suggested that:
…there needs to be a national statement made in relation to child exploitation that's signed on by every single state and territory government as a policy. Then they can work within their parliaments to develop legislation that is unified.
3.32When asked about whether there is a need for standalone legislation specifically targeting CAM, Ms Anne-Louise Brown of the Cyber Security Cooperative Research Centre indicated there may be scope for such legislation:
You can overlegislate these things, certainly. I think that, as much as this kind of offending can be wrapped up within existing legislation or rolled into existing legislation, that's certainly a good thing. That said, it is a unique kind of offending, and it's growing. We know that this is something that's growing rapidly. There is scope, I think, to be able to do that, and that would also potentially help with resourcing policing if there were standalone legislation.
3.33When the question of standalone legislation was put to eSafety, its representative, MrTobyDagg, said 'we think that the full scope of powers provided to the eSafety Commissioner under the Online Safety Act is an appropriate response to the breadth of issues that we've observed over the course of the last 5½ years or so'.
Adequacy of existing criminal offences
3.34The committee received a range of comments about the adequacy of criminal offences for conduct involving CAM, and potential gaps in legislation. This section discusses two specific matters in turn: consideration of a suspect's intent; and 'sexting'. It then examines evidence about the overall breadth and adequacy of criminal offences.
Context and the suspect's intent
3.35Dr Dominique Moritz, a senior lecturer at the University of the Sunshine Coast, drew attention to 'the contextual element of CSEM [child sexual exploitation material] offences'. She submitted that laws in South Australia and the Australian Capital Territory 'consider the accused's sexual interest or arousal to determine whether a CSEM offence has been established', whereas other jurisdictions 'prescribe that CSEM is material a reasonable person would find offensive'. In the latter jurisdictions, '[i]t is the material itself which is assessed for offensiveness rather than what the offender did with it'. Dr Moritz submitted:
Such an interpretation has produced acquittals from CSEM offending. In RvMelville, prosecution could not establish the accused's possession of six images depicting naked boys were CSEM because the images depicted boys 'relaxed in their nudity' which were, of themselves, not offensive. Guerin v HB likewise held that CSEM relates to the image itself rather than any other circumstances and found the accused not to have breached CSEM legislation.
3.36While there have been other cases that 'widened the scope for assessing offensiveness, allowing some consideration of context', it remains the case that 'content which is not, of itself, offensive and has not been stored with other CSEM for context might fall outside the scope of prosecution despite the viewer's nefarious "gaze" or intent to use for sexual purposes'. Dr Moritz suggested that 'perhaps it is time for parliaments to rethink the role of context in determining CSEM criminality'.
3.37Detective Superintendent Jayne Doherty of the NSW Police Force reported that police have observed people on the Child Protection Register exchanging 'photographs of children that are not sexually explicit photographs, but the fact that they're being exchanged between people on the register with that type of background tends to lead us to believe that they're being exchanged for a sexually explicit purpose'. She acknowledged that current offences cover images for sexual gratification, but '[t]rying to prove that to a court of law becomes quite difficult. We believe there should be broader legislation around that, so that we can prove the actual, nefarious reasons for the exchange of those videos'.
3.38Ms Ciara Spencer, Department of Home Affairs, confirmed that existing legislation 'focuses very holistically on child abuse material'. She said legislation needs to:
…be specific to the degree that you're not unintentionally capturing innocent behaviour but able to…capture some of that context where otherwise innocent material may be used. That's where it goes into…the discretion of the judicial process and law enforcement, but it's very difficult to reflect these things in legislation.
3.39Ms Spencer also suggested that '[t]o some degree, the fact that simply having the material is an offence is part of the strength of our system'. She said that 'building in an intent may actually make it harder to prove certain offences'.
Self-generated material and 'sexting'
3.40Collective Shout expressed concern that '[l]arge numbers of children are producing sexualised images of themselves, which can be shared widely or harvested and redistributed by those with a sexual interest in children'. It submitted that children producing and distributing sexualised images of themselves puts them 'at significant risk'. It recommended that 'Government should make available support and interventions for children and adolescents engaged in this activity', as well as education campaigns demonstrating that 'self-generating sexualised images is harmful for children and adolescents'.
3.41ECPAT International presented a graphic stating that while all coerced self‑generated sexual content leads to harm, such content may or may not lead to harm when it is not coerced. ECPAT International advanced:
Children who willingly produce sexual images representing themselves should never be held criminally liable. When this material is generated with consent or as a result of coercion, blackmailing or pressure against the will of the child, and is distributed, disseminated or sold, those responsible for the criminal conduct must be punished rather than the victims.
3.42The South Australian Commissioner for Children and Young People (CCYP) advanced that it is 'critical to prevent the misapplication of existing laws', and gave the following example:
[C]hildren creating explicit images of themselves to share with another and trauma related problematic sexual behaviour between children can at times result in children being caught up in a legal system with unpredictable and varied outcomes, when often education and treatment would result in better outcomes.
3.43The South Australian CCYP suggested that, as well as the harm this can cause 'at an individual level', it can also:
…result in undermined public confidence in legal enforcement leading to crimes going unreported. For example, young people who have created explicit material of themselves which they intended for private use, may avoid reporting criminal public on-sharing of the material to avoid incurring punishment.
3.44Dr Moritz submitted that children 'participate in sexting for a range of non‑exploitative reasons'. While acknowledging that 'sexting can have exploitative consequences', Dr Moritz advanced that sexting:
…should not be comparable to CSEM where it occurs between consenting individuals, despite those individuals being children, because CSEM offences are designed to address degradation and exploitation rather than children's sexual agency. Where adults are involved in sexting behaviour with children, it is a clearer CSEM offence.
3.45Dr Moritz said that under existing laws, '[c]hildren who possess and/or share sexual content through sexting inadvertently engage the CSEM legislation because they are sharing material involving children depicted in sexualised ways'. She suggested that these children could be prosecuted for child sexual exploitation offences unless 'law enforcement or prosecutions exercise discretion not to prosecute' the child. Dr Moritz provided data from the Queensland Sentencing Advisory Council and commented that '[c]hildren participating in sexting are entering the criminal justice system even if the outcome is diversion from court'.
3.46Dr Moritz proposed that consensual sexting between children should not be captured by child sexual exploitation material legislation and said an option for reform is to insert 'a sexting exception or defence', as has occurred in New South Wales.
3.47Queensland Police submitted that it 'has acted to address concerns regarding the prosecution of children who engage in sexting within their peer group which prima facie would constitute a CEM offence but lacks predatory-type conduct usually associated with these offences'. It said that, between 1July2019 and 30June2021, there were 738 children who 'came to the attention of police for CEM offending', of which:
…726 children were dealt with through no further action (44) or diversion from the criminal justice system through cautioning (577), community conferencing (30) or other action (75), with a focus on educative responses and encouraging children to accept responsibility for the impact of their actions. A small number of children (12) were charged with an offence, as they participated either in non-consensual behaviour, very serious offending, including violent offending, or behaviour associated with other offending which led to formal charges.
Breadth and adequacy of criminal offences
3.48Ms Welsh of Victoria Police posited that the current legislation is 'not broad enough to capture all aspects' of CAM offending. She explained:
The second component of my response to this question, and it's difficult, is that, because of the complexity of the offending and the increasing complexity of the offending—we spoke very briefly earlier about deep fakes, which are different again, technology that's on the horizon and technology that we have not yet anticipated—I think it will be of growing concern. How do we craft legislation that deals with such a rapidly evolving and complex crime type? I think that calls upon us all to think about how we might do this in a different way, perhaps.
3.49Victoria Police also highlighted several challenges in prosecuting alleged offenders:
In Victoria Police's experience, there can often be challenges associated with proving an alleged offender knew a person depicted in child abuse material is a child (unless they personally know the child). Another challenge faced in prosecutions is proving an alleged offender knew that child abuse material was on their electronic device, and it was not accessed or downloaded accidentally in the course of viewing legal pornography. Prosecutors can also face difficulties in proving possession of offending material where the alleged offender has not downloaded it from the internet.
3.50Destiny Rescue said it submitted to the Attorney-General's Department's targeted review of Divisions 270 and 271 of the Criminal Code Act 1995, which relate to modern slavery, including to express support for replacing the term 'sexual service' in Division 271 (which relates to trafficking in persons) with the term 'sexual exploitation'. The review has since found that the term 'sexual service' is inappropriate in the context of child trafficking offences.
3.51Dr Ian Warren, Dr Clare Allely, and Dr Sally Kennedy submitted that there 'has been increasing recognition of the various innate vulnerabilities or features of ASD [autism spectrum disorders], which is a neurodevelopmental disorder that may provide context associated with the vulnerability of viewing CEM [child exploitation material] online'. They said evidence suggests 'a large proportion of individuals with ASD receive convictions for the possession of CEM', but these individuals 'generally do not appreciate that what they were doing was illegal and a number of innate vulnerabilities or features of ASD have contributed to this'. The submitters concluded that there is 'urgent need for the innate vulnerabilities associated with ASD which can contribute to the viewing of CEM to be recognised in criminal law'.
3.52A range of witnesses from Commonwealth agencies suggested that they are not seeing obvious gaps in the existing framework of criminal offences. MrMarkdeCrespigny of the CDPP advised:
On my count, there are approximately 51 Commonwealth child sex offences in the Criminal Code. That's quite a significant number of offences—that's dealing with both overseas offences and carriage service offences within Australia. Our view, as we set out in our papers, is we're not seeing any particular, obvious gaps. We're not having matters come to us that we're looking at and saying, 'No, we can't find an offence that adequately represents this type of offending behaviour'.
3.53The CDPP also submitted that the Criminal Code Act 1995 'provides for an extensive range of offences addressing child exploitation', though observed:
As technology and offending develop further additional offences may need to be considered by policy makers but at present the CDPP has not identified any clear deficiencies in the currently available offences.
3.54Similarly, Ms Inverarity, Attorney‑General's Department, told the committee:
We are of the view that Australia's criminal offence framework is world leading. It has been extensively reformed over the last 10 to 15 years to ensure that particularly online child abuse material is quite comprehensively covered. So, from the perspective of how our offences apply, I think we would say we are very well advanced.
3.55Ms Inverarity also advised that reforms have sought 'to try and make offences technology-neutral, [and] less prone to collapsing when new technology or new perspectives emerge'. She commented that '[w]e think we've got a pretty robust framework there'.
3.56Regarding the definition of CAM, Ms Spencer, Department of Home Affairs, advised:
The Criminal Code has an all-encompassing definition of child abuse material, which captures material which depicts the sexual and physical abuse, or representations of the sexual and physical abuse, of children under 18 years of age. That can apply to a real or fictitious person, cartoons, drawings or any kind of artificially created material.
3.57With respect to the Online Safety Act, Mr Dagg said that eSafety has 'found the improved powers to be effective'. He explained:
Prior to the Online Safety Act's commencement, when the Online Content Scheme was contained in the Broadcasting Services Act, our takedown powers were limited to Australian hosted material, which meant there was little we could do other than act informally. While we haven't issued removal notices in relation to child sexual exploitation material in Australia, we have issued removal notices under the Online Safety Act—in particular following the Buffalo terror attack in May this year. The content we saw was hosted overseas—some of it was hosted on Kiwi Farms, to be precise—and we found the removal notices were effective in about two-thirds of cases. This is an illustration of how the legislation can work to tackle this kind of content.
Appropriateness of sentences and penalties
3.58Some inquiry participants expressed concern that sentences handed down for CAM offences do not properly reflect the seriousness of the crime or provide adequate deterrent. For example, Collective Shout submitted that there is:
…a disturbing trend of lower sentences for online offenders in demand-side countries who direct and cause live sexual abuse or exploitation by instructing and paying in-person offenders to violate children, relative to the offenders committing the 'in-person' contact abuse.
3.59Collective Shout cited data from research published in 2020:
In a study of 29 Australian court cases including the terms 'child pornography' from 2007-2017, 61% of offenders received a custodial sentence, and of these the average sentence was 36.72 months. Eighty eight percent of cases included the most severe category of CSAM [child sexual abuse material] (sadism, torture, or bestiality), and 76% involved children aged three years or less.
3.60Collective Shout also provided examples of sentences handed down in Australia that it considers too low, including:
…the case of a Brisbane man found in possession of 85,000 child abuse images and videos across 11 electronic devices. On August 12, 2021, the man pleaded guilty to six charges relating to accessing, creating and possessing CSAM. Despite the magnitude of his offending – each video and image representing the abuse, rape and/or torture of a real child - he was sentenced to just four years in prison.
The following day, on August 13, another Brisbane man was convicted of eight offences relating to accessing, creating, transmitting and possessing CSAM. The child abuse material including images and videos of pre-pubescent girls. The man will be eligible for parole after serving just four months in prison.
3.61Observations by the WeProtect Global Alliance, quoted by Collective Shout, indicate the seriousness of online CAM offending:
Online offenders are the minds and money behind in-person contact abuse and should be punished, restrained and deterred accordingly; they are effectively inciting contact abuse and committing it by proxy, and so are responsible for it having occurred. 'Demand-side' offenders direct and cause live sexual abuse or exploitation by instructing and paying in-person offenders to violate children of specific ages, at specific times, in specific ways. They produce CSAM every time they direct and watch the live abuse remotely, and they entice, solicit, and coerce minors to produce sexually explicit videos and images for consumption and distribution.
3.62Ms Madeleine West, an advocate against child sexual exploitation, advanced that sentences should be longer:
If we really want to stop the rot, then sentencing practices need to change. We need to signal to the public that we care. Compared to America and, say, Canada, comparative sentences handed down by Australian courts are an absolute disgrace. In America and Canada online grooming can attract a 10‑year jail sentence. In Australia, you commit tax fraud and you will feel the full weight of the law, but you destroy a child's life and you'd be lucky to get a slap on the wrist.
3.63Ms West also submitted that the descriptions of CAM used in court are 'too sterile', and that '[i]n many cases, judges actually ask the prosecutors to tone down the descriptions/imagery or remove imagery that is considered too confronting'. She said:
I would not for a moment suggest that everyone should see these images, because they will haunt you. But those who are tasked with deciding appropriate sentencing have to bear witness to what child exploitation is, what it looks like, if they're ever going to hand down sentences that punish an act like a solid deterrent.
3.64In relation to the deterrent effect of high sentences, the Uniting Church in Australia, Synod of Victoria and Tasmania, submitted that '[c]riminological research has shown that once a penalty reaches a certain adequate level, then the risk of being caught has far more impact on whether a person will be deterred from committing a crime'. It proposed that for 'general deterrence to work online, people tempted to engage in severe criminal behaviour must be given a sense that if they do so, they will be caught'. Senior Social Justice Advocate, Dr Mark Zirnsak, explained:
Our understanding, based on our look at the research, would be that the problem is the number of offenders. If the bulk of the problem is that the same people are offending over and over and over again, then you would argue that the solution is tougher penalties targeting those individuals. If the problem is that there are large numbers of people engaging in this behaviour and the reason they're doing it is that most of them think they can get away with it, our understanding of the criminological literature is that simply punishing more harshly the smallish number who are getting caught doesn't provide a general deterrence to that population who would otherwise offend and think they could get away with it.
We're trying to say that the bigger problem you've got in this space is: how do we create an environment where people think, 'If I engage in this behaviour I will get caught'?
3.65The Department of Home Affairs advised that the mandatory minimum penalties introduced in June 2020 (by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020) were intended:
…to address the inadequacy of sentencing practices whereby the average length of imprisonment for a child sex offence was 18 months and nearly 40per cent of convicted child sex offenders were spending no time in prison.
3.66It submitted that the minimum penalties 'better reflect that child sexual abuse has serious and long-term impacts and online offending serves to perpetuate the market demand for child abuse material'.
3.67The Attorney‑General's Department provided data about the application of these minimum penalties:
As at 30 September 2022, 49 offenders were sentenced for offences that had mandatory minimum penalties. 42 of these offenders were subject to the mandatory minimum penalties because they were recidivists, previously convicted of a prescribed child sexual abuse offence and 8 of these offenders were sentenced for the most serious Commonwealth child sex offences which carry mandatory minimum penalties, including for first time offenders.
3.68The committee sought data on the number of sentences handed down in the last three years that exceeded 25 years imprisonment, and how many exceeded three years imprisonment, but the Attorney-General's Department could not provide it. The department responded:
The Attorney-General's Department does not hold sentencing data about total sentences in a way that makes it possible to extract reports providing the requested information. This is because the sentencing data records the sentence for each offence separately. This will often not reflect the total effective sentence given that individual offenders are often sentenced for multiple offences.
The department has consulted the Office of the Commonwealth Director of Public Prosecutions and the Australian Bureau of Statistics. Neither agency holds sentencing data in a form that would allow the requested information to be provided.
3.69However, the Attorney‑General's Department had earlier provided several case studies, including of an offender sentenced to two years in prison for offences related to child-like sex dolls. A further example concerned a man who:
…was charged with 58 offences including persistent sexual abuse of a child outside Australia, procuring a child to engage in sexual activity outside Australia and soliciting and possessing child abuse material. The Western Australian man pleaded guilty and was sentenced in May 2022 to over 14years imprisonment after being identified as paying more than $400,000 to sexually abuse children overseas through a home webcam.
3.70The CDPP also described a successful appeal that increased a sentence from 10years imprisonment with a non-parole period of six years, to 14 years imprisonment with a non-parole period of 10 years. The offender had been 'charged with 22 offences of causing children in the Philippines to engage in sexual intercourse, via instructions he gave over a real-time video link'.
3.71Regarding the process for determining a sentence, the CDPP explained:
In sentencing the Court must determine the nature and circumstances of the offending. A significant factor in determining the objective seriousness of the offending in matters involving child abuse material is an assessment of the degree of depravity of the conduct featured in the material. The assessment will include the nature of the acts portrayed; whether they portray actual children; the estimated number of victims; the degree of physical harm, fear and distress; the apparent age of the children; the volume of the material, and other factors.
3.72The AFP submitted that there would be benefit in broadening the impact statements that may be presented to a court. It gave two examples of such statements:
Statements from victim-survivors 'depicted in material found in the offender's possession, including where the offender is not responsible for producing, procuring or soliciting that material directly from the victim'. Permitting such statements would recognise that 'the ongoing existence and sharing of the child abuse material contributes to harm and that individuals are often re-victimised when their material is shared online'.
Community impact statements 'on behalf of victim-survivors depicted in child abuse material available online, none of whom are necessarily depicted in the material in the offender's possession'. The AFP observed that convictions for possessing CAM do not require a complainant, and 'a community impact statement could detail the impact that online child sexual abuse has on victims'.
3.73The AFP advised that, since 2010, South Australia has permitted two types of community impact statement to be provided to the court, a 'Neighbourhood Impact Statement' and a 'Social Impact Statement'. The AFP said its experience in the South Australian jurisdiction 'highlights the benefits of these types of statements being used to represent the victim and the community interests'.
3.74Aside from terms of imprisonment, the committee heard concerns that offenders have moved funds into their superannuation accounts to protect those funds from being paid to victims as compensation. MsWest advanced:
My position is this: you have destroyed someone's life. You have made them probably incapable of working, of fostering healthy relationships and of actually accessing the counselling and trauma support that they need, because it's too expensive. If it is proven in court that that person committed those crimes, why do they get a cushy future? Why do they comfortably get to rest on their superannuation to see them through the rest of their lives when their victims are carrying a life sentence? That needs to be changed.
3.75The Attorney‑General's Department confirmed that it and the Treasury are 'aware of a number of high-profile cases of convicted offenders using superannuation to limit the quantum of funds available to victims and survivors of child sexual abuse seeking to enforce court-ordered compensation'. It said that a recent discussion paper, published by Treasury, received feedback on this issue that will inform advice to government.