Chapter 3 - Key Issues
3.1
Most submissions were supportive of the amendments proposed by the Bill.[1]
However, the following issues were raised during the committee's inquiry:
- the breadth of the preparatory offence in proposed section 272.17;
- the proposed defences under the Bill; and
- related measures to address the issue of child sex tourism.
3.2
These issues are discussed in further detail below.
Preparatory offences
3.3
As outlined in chapter 2, proposed section 272.17 of the Bill creates
offences which aim to capture the behaviour of people who are preparing to
commit a child sex offence overseas. The Attorney-General's Department (the Department)
explained the need for these proposed offences in its submission as follows:
The existing benefiting and encouraging offences are targeted at
child sex 'tour' operators, rather than the individual sex client. The new
preparatory offence would fill this gap and apply to a wide range of
preparatory behaviour done by a person with the intention of preparing or
planning to commit an offence involving sexual conduct with a child overseas.[2]
3.4
The Department further explained that:
Such conduct could include arranging travel and making a hotel
reservation in a well known child sex tourism destination, so long as the
conduct could be linked to an intention to commit an offence against the child
sex tourism regime. The new offence will also apply to operators with respect
to preparatory conduct undertaken with the intention of benefiting from child
sex tourism.[3]
Support for the preparatory
offences
3.5
Some submissions were supportive of these proposed preparatory offences.
For example, Child Wise supported the new offences proposed by the Bill,
including the preparatory offences, commenting that: 'These new offences
reflect the reality of child sex offending which is often a planned and
premeditated crime.'[4]
Indeed, Child Wise commended the Australian Government for the development of
the Bill.[5]
In particular, Child Wise noted that there have been 'specific cases of
Australian child sex offenders planning to sexually abuse children overseas
which could not be prosecuted under the existing Australian child sex tourism
legal provisions.'[6]
3.6
Similarly, World Vision Australia welcomed the Bill, stating that it
'supports a comprehensive legislative regime which seeks to prevent, prosecute
and punish Australians who perpetrate, support or encourage child sex tourism,
child sex abuse and child pornography in Australia and overseas.'[7]
World Vision Australia further commented that:
These new provisions will be a significant weapon in the war
against child exploitation, which is particularly prevalent in our region. The
legislation also has the potential to become model legislation in the Asia
region as the region searches for more effective responses to these crimes.[8]
3.7
The Australian Institute of Family Studies also supported the proposed
new offences, including the preparatory offences, stating that 'legislation
that allows police and law enforcement authorities to actively intervene to
prevent harm before it occurs is good for the welfare of vulnerable children
and young people.'[9]
Concerns about the preparatory
offences
3.8
However, the Law Council of Australia (Law Council) was highly critical of
the proposed preparatory offences, describing them as an 'unwarranted and
worrying departure from established principles of criminal law.'[10]
3.9
The Law Council pointed out that Part 2.4 of the Criminal Code creates
'inchoate' offences that apply to all Commonwealth crimes, include offences
relating to attempt (section 11.1), incitement (section 11.4) and conspiracy (section
11.5). The Law Council was concerned that the proposed preparatory offences go
much further than these inchoate offences by targeting purely preparatory acts
without requiring a connection to any clear intent to commit a substantive
criminal offence.[11]
3.10
The Law Council argued that:
The common law has always been reluctant to attach criminal
liability to action that is undertaken in preparation for conduct that, if
carried out, may constitute a criminal offence, primarily because a person can
plan for conduct and then change his or her mind before the plan is
implemented.
In short, the criminal law has not traditionally penalised
nascent and unrealised private intentions which have only been advanced in a
preliminary way, particularly where those intentions have not yet crystallised
into a specific criminal intent.[12]
3.11
The Law Council was particularly concerned that the proposed offences 'would
risk penalising a person for broad intentions which they may never have acted
upon, or worse, risks exposing entirely innocent activity to ruinous
prosecution'.[13]
3.12
The Law Council also believed that the proposed offence would actually be:
...very difficult to successfully prosecute because it targets
behaviour which is not inherently criminal, but which might be undertaken in
broad contemplation of future criminal activity of a generic kind. Establishing
the requisite criminal intent to secure conviction in such circumstances may,
quite rightly, prove very difficult. Prosecutions which fail because police
have intervened prematurely, may do more harm than good to efforts to combat
child sex tourism in the longer run.[14]
3.13
Similarly, the Parliamentary Library's Bills Digest noted that
'comparable preparatory offences in the counter-terrorism area have been
criticised for not providing sufficient certainty when defining criminal
behaviour.'[15]
The Bills Digest concluded that:
As heinous as the possibly intended crimes are, the mere act of
booking a hotel room or an airline ticket without sufficient evidence of clear
intention and no further conduct should not constitute a criminal offence. The
danger of convicting a person for a never to be fulfilled intention should be
considered carefully in criminal law.[16]
3.14
In response to a question from the committee on this issue, the
Department stated that:
The provision does not criminalise acts such as arranging
overseas travel without the need to prove any specific intention to commit a criminal
offence. ...[It] will be necessary to prove the fault elements of the offence as
well as the physical elements, ie that the person intentionally undertakes an
action (eg overseas travel) with knowledge or recklessness as to this
constituting preparation or planning to commit a specified child sex tourism
offence. Merely travelling will not itself constitute an offence.[17]
3.15
The Department acknowledged that an individual could still be guilty of
an offence under proposed section 272.17, even if he or she subsequently
resiled from the intention to commit a child sex offence overseas, for example
by cancelling his or her airline booking. However, the Department noted that:
The very nature of this offence is that it captures the preparatory
stage of organising and planning to travel to commit a child sex offence
overseas. This provision is based on the premise that involvement in planning
for participation in child sex tourism should attract punishment. For an
individual to be found guilty of this offence, there would need to be
sufficient evidence that he or she has in fact booked an airline ticket as part
of a plan to travel overseas to engage in a child sex offence overseas...
However, the fact that a person subsequently resiles from the
act that constitutes preparation or planning would be a factor taken into
account in the investigation stage, and in any decision to prosecute. Further,
if a matter was prosecuted and the person was subsequently found guilty, the subsequent
resiling from the act that constitutes preparation or planning may be a factor
that the Court could take into account in sentencing.[18]
Need for the offence
3.16
The Law Council also queried the need for the proposed preparatory
offence, expressing the view that the existing legislative regime targeting
child sex tourism 'is already sufficiently wide in scope and, in fact, already
covers preliminary conduct in a manner which allows police to adopt a
preventative, early intervention approach'.[19]
3.17
Indeed, the committee asked the Department of Foreign Affairs and Trade (DFAT)
whether powers might be available under other legislation to prevent
individuals from committing child sex offences overseas. DFAT responded that
the Australian Passports Act 2005 empowers the Minister for Foreign Affairs
to cancel or refuse to issue an Australian travel document at the request of a
competent authority — such as an Australian law enforcement authority. To make
such a request, the competent authority must suspect on reasonable grounds that
a person would be likely to engage in conduct that might:
- endanger the health or physical safety of other persons (whether
in Australia or a foreign country); or
- constitute an indictable offence against a law of the
Commonwealth.[20]
3.18
DFAT further advised the committee that:
These legislative provisions and the associated implementation
arrangements provided by the Australian Passport Office have been used
successfully on a number of occasions to prevent or restrict international
travel of child sex offenders since coming into force on 1 July 2005. The effectiveness of the arrangements is further increasing as law enforcement agencies
become more familiar with the powers provided under the Acts to prevent travel
by child sex offenders.[21]
3.19
However, the Australian Federal Police (AFP) advised the committee that
it had experienced difficulties in using these powers to prevent individuals
committing child sex offences overseas. Those difficulties related to cases
where individuals had applied to the Administrative Appeals Tribunal (AAT) for
review of a ministerial decision to cancel their passport:
If an individual appeals the cancellation of their passport - in
effect seeks its reinstatement – the AAT requires the AFP to provide evidence
that the individual has consistently demonstrated behaviour which raises a
reasonable suspicion that the person is likely to engage in harmful conduct
offshore, that is, child sex offences. Provision of such evidence can be a
challenging task for the AFP as it involves regularly undertaking complex risk
assessments of, for example, intention to/ pattern of engaging in a position of
trust to gain access to children overseas.[22]
3.20
The AFP further explained that it is unclear whether passport
cancellations or refusals operate permanently or only for a period of time:
...a competent authority may need to revisit the reasons for
making its original passport cancellation/refusal request if a person lodges an
application for another passport during the open-ended period of cancellation
(potentially their lifetime). In the majority of such cases, the AFP usually
will not have additional information to provide to the Minister about a
person’s domestic behaviour since passport cancellation occurred. The
competent authority would then have to rely only on the original grounds for
refusing a passport.[23]
Penalties for the preparatory
offences
3.21
The Law Council suggested that the maximum penalties for the proposed
preparatory offences should be decreased. Under the Bill, the proposed
preparatory offences would attract maximum penalties of 15 years and 17 years
imprisonment – the same as the maximum penalties for the substantive offences
for which it is an offence to prepare to commit.[24]
The Law Council argued that:
If a person is successfully prosecuted under clause 272.17 with
purchasing an airline ticket in preparation for traveling [sic] abroad to
engage in sexual intercourse with a child, it will not be possible to
definitively assert that, but for the intervention of police, the person would
certainly have committed the substantive offence. The possibility will remain
that the defendant may not have further advanced his or her plans, formed a
more specific intention and acted to realize that intention.
The maximum penalty should be reduced to reflect this.[25]
3.22
In response to a question from the committee on this issue, the
Department explained that providing for the same maximum penalty is consistent
with other like offences under the existing child sex tourism regime, such as
the offences of benefiting from, or encouraging, an offence against a child sex
tourism offence provision.[26]
These offences are subject to a maximum penalty of 17 years imprisonment. The
Department also noted that: 'The Bill is based on the premise that any kind of
involvement in child sex tourism merits the prospect of a significant prison
term.'[27]
Defences
3.23
The Law Council also raised a number of issues in relation to the
defences contained in the Bill. As outlined in Chapter 2, the Bill proposes to
relocate existing defences based on belief about age (section 50CA) and on
valid and genuine marriage (section 50CB) from the Crimes Act to sections
272.13 and 272.14 of the Criminal Code. The Law Council acknowledged that the
defences have not been introduced or substantively changed by the Bill, but
suggested that the committee consider whether these defences remain 'adequate
and appropriate'.[28]
Defence based on age
3.24
First, the Law Council suggested that the committee consider whether a
further defence should be included to cover circumstances where the alleged
sexual activity is consensual and the alleged perpetrator is no more than two years
older than the alleged victim. The Law Council noted that a number of
Australian jurisdictions provide a defence to a charge of unlawful sexual
conduct with a minor, if the alleged perpetrator is no more than a specified
number of years older than the alleged victim and the alleged sexual activity
is consensual.[29]
The Law Council argued that this proposed defence:
...would not be inconsistent with the object of the Bill and would
help distinguish between sexual behaviour involving an adult sexual predator
and a young person under 16 years and sexual behaviour between two young
persons.[30]
3.25
In this context, the committee notes that the new grooming and procuring
offences in proposed sections 272.11 and 272.12 are modelled on existing
offences in sections 474.26 and 474.27 of the Criminal Code which relate to use
of a carriage service to groom or procure a person under 16 years of age for
sexual activity. However, these existing Criminal Code offences require the
offender to be at least 18 years of age, whereas the proposed new offences do
not have such an age limit. This makes the proposed new grooming and procuring
offences consistent with the other existing Crimes Act child sex tourism offences
since those offences do not require that the offender be at least 18.
Defence based on marriage
3.26
The Law Council also suggested that the committee consider whether the
defence of valid and genuine marriage (under proposed section 272.14) is a
necessary and appropriate defence, in view of the aims of the legislation and the
position under Australian domestic law. In particular, the Law Council noted
that the majority of Australian states appear to make no provision for marriage
as a defence to charges of engaging in sexual activity with a person below the
age of consent.[31]
3.27
The Law Council also pointed out that this defence is at odds with recent
amendments to the Crimes Act introduced by the Crimes Amendment (Bail and
Sentencing) Act 2006. Under these amendments, subsection 16A(2A) of the
Crimes Act now provides that:
However, the court must not take into account under subsection
(1) or (2) any form of customary law or cultural practice as a reason for:
- excusing, justifying, authorising, requiring or lessening
the seriousness of the criminal behaviour to which the offence relates; or
- aggravating the seriousness of the criminal behaviour to
which the offence relates.
3.28
The Law Council concluded that:
...the defence in clause 272.14 may detract from the primary
purpose of the Bill, namely to protect children from being forced or encouraged
to engage in sexual activity before they have reached the requisite level of
maturity and are above the age of consent. The defence could result in a double
standard of protection for child victims of sexual abuse overseas, determined
by marital status.[32]
Requirement for sexual activity to
be consensual
3.29
Finally, the Law Council suggested that the listed defences should only
be available in circumstances where the alleged sexual activity was consensual.[33]
The Law Council was concerned that, without this:
...a belief that the person was over 16 or the existence of a
valid and genuine marriage could absolve a defendant of criminal liability for
engaging in non-consensual sexual activity with a person under 16.[34]
3.30
In this context, the Law Council pointed to section 55 of the Crimes
Act 1900 (ACT). This section provides a defence to an offence of engaging
in sexual intercourse with a person under the age of 16 years, where the
defendant believed on reasonable grounds that the person was of or above the age
of 16 years[35]
and that person consented to the sexual intercourse.[36]
Related measures
3.31
Some submissions suggested related measures to address the issue of child
sex tourism, including an education campaign against child sex tourism, and
resourcing for enforcement of the regime proposed by the Bill.
Education campaign
3.32
Child Wise recommended 'that the crime of child sex tourism should be
widely advertised in the Australian community for maximum deterrent effect.'[37]
Indeed, Child Wise explained that it had developed an education campaign
against child sex tourism, which has been endorsed by ten ASEAN Governments and
is currently being rolled out throughout South East Asia. Child Wise noted that
it was in negotiations with the Australian Government for implementation of the
education program within Australia.[38]
Child Wise provided a summary of research which it submitted confirmed that 'if
people know of the crime of child sex tourism and know how to respond they will
report cases to the AFP.'[39]
Child Wise noted the particular importance of public awareness in preventing
child sex tourism:
While Child Wise believes that the Australian Federal Police
(AFP) are doing an excellent job in protecting children from sexual abuse
overseas from travelling sex offenders, we believe that much more can be
achieved if the Australian Government supports an accompanying Australian
education campaign to encourage Australians to speak up about travelling sex
offenders before they leave the country. ...Often people in Australia know that
someone is planning an overseas child sex offence, therefore Australians need
to be informed about the law, the new provisions and how to report concerns to
the AFP.[40]
3.33
World Vision Australia also expressed support for the Child Wise
campaign and the provision of:
...comprehensive information and education about the prevention of
child sex tourism and child sex offences for the Australian community,
tourists, the tourism industry, and communities within our region to ensure
that suspicious activity is reported, offences are prevented and victims
supported.[41]
Enforcement issues
3.34
World Vision Australia also emphasised the importance of ensuring appropriate
resources are available for the enforcement and prosecution of the new
provisions, particularly given that there have been 'relatively few
prosecutions under the current child sex tourism offences over the last few
years'. World Vision Australia further suggested that there should be greater investment
in training, capacity building and support for local law enforcement agencies
in our region.[42]
3.35
The AFP advised the committee that, since 1995, 158 investigations have
been conducted in relation to child sex tourism offences resulting in 28 people
being charged and 19 convictions.[43]
In response to a question concerning what difficulties the AFP had experienced
in enforcing the existing child sex tourism offences, the AFP pointed to three
key issues:
- a gap in the offence structure because the focus of the benefiting
and encouragement offences is on 'child sex tour' operators rather than the
individuals committing the sexual abuse;
- the practice of victim compensation[44]
in some countries which can result in the withdrawal of complaints or statements
by victims, making any further investigation or prosecution very difficult; and
- a change in the nature of child sex abuse by Australians overseas
since the offences were introduced.[45]
3.36
The AFP noted that:
The Bill has been developed in consultation with the AFP to
address these issues, to the extent that these issues are capable of being
addressed by Commonwealth legislation.[46]
3.37
In particular, the AFP explained that:
The addition of offences relating to acts in preparation
(procuring/ grooming a victim) reflects the growing trend showing a move away
from the 'sex tourist' towards spending extended periods of time offshore,
often engaged in a position of trust within a local community, to gain ongoing
access to children in remote, foreign environments.[47]
Other issues
3.38
World Vision Australia also noted the importance of other measures to
address child sex tourism, including adequate support for victims of these
crimes and meeting commitments to reduce poverty in our region.[48]
Committee view
3.39
There is clearly a need for strong and effective laws to address the
problem of child sex tourism by Australians. The committee therefore welcomes
the evidence of the Department and the AFP that the Bill will fill some gaps in
the current legislative regime. The committee notes the concerns raised about
the breadth of the proposed preparatory offences in section 272.17. However,
the committee considers that the heinous nature of the crimes concerned
justifies casting these preparatory offences in terms that are broad enough to
provide law enforcement officers with effective powers to intervene before children
are harmed.
3.40
The committee acknowledges the suggestions made by the Law Council in
relation to the proposed defences available to the child sex tourism offences
under the regime. The committee notes that the defences in the Bill are not new
and are merely being transferred from the Crimes Act to the Criminal Code.
Nevertheless, it seems incongruous, given the purpose of the legislation, that
a belief about the age of the child, or the existence of a valid and genuine
marriage with the child, should provide a defence where Australians engage in
non-consensual sexual activity with a child overseas. The committee therefore recommends
that the Bill be amended so that the defences based on belief about age and
valid and genuine marriage are only available where the relevant sexual activity
is consensual.
3.41
Finally, the committee accepts the evidence given by Child Wise that the
successful enforcement of the new child sex tourism offences will be heavily
reliant on the provision of information by Australians who are aware that
someone is planning an overseas child sex offence. As a result, the committee
recommends that the government implement an Australian education campaign against
child sex tourism along the lines proposed by Child Wise.
Recommendation 1
3.42
The committee recommends that the defences based on belief about age, in
proposed subsection 272.13(1), and valid and genuine marriage, in proposed subsection
272.14(1), be amended by adding a requirement that the sexual intercourse or act
of indecency is consensual.
Recommendation 2
3.43
The committee recommends that the Australian Government implement an
Australian education campaign against child sex tourism along the lines
proposed by Child Wise.
Recommendation 3
3.44
Subject to the preceding recommendations, the committee recommends that
the Bill be passed.
Senator Guy Barnett
Chair
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