Child Exploitation Material Bill 2009
HON ALISON XAMON (East Metropolitan) [9.17 pm]: This is the first substantial review of Western Australia’s child pornography offences since 1996. The Child Exploitation Material and Classification Legislation Amendment Bill 2009 aims to reflect changes in information technology, media and communications.
The Greens (WA) support the intent of this bill. I note that my colleague Hon Giz Watson spoke about this bill on 17 June last year. The Greens commend the government on further referring this bill last year to the Standing Committee on Uniform Legislation and Statutes Review. The Greens believe that the issues outstanding as a result of the committee’s first rather limited report certainly warranted further scrutiny of the bill. We are pleased that some further consultation with community groups and academics, taking into account current laws and enforcement practices in other states, was looked at.
As a result of the decision to refer this to the committee for further consideration, we were able to consider this bill armed with more detailed information, as provided by the committee in its report. I have to say from the outset, as a mum of young children, I obviously find it absolutely abhorrent that anyone would subject young children to the appalling acts depicted in child exploitation material. I am sure that that view is pretty much shared by everybody here. The proliferation of material as a result of the internet, which has actually opened up new ways for paedophiles to reach and abuse children, is very concerning and deeply disturbing. It is a sad indictment of where we are going and how things are panning out. I understand that the United Nations has evidence that the number of websites containing child pornography is increasing internationally. According to figures released by the UN in September last year, more than 750 000 people are using child porn sites around the world at any given time. The UN estimates that the child pornography industry is worth between $3 billion and $20 billion. We are therefore talking about an enormous industry. When we are dealing with something as huge and as horrendous as this, the Greens (WA) welcome the cooperation of law enforcement agencies, both across Australia and internationally, in dealing with these crimes. The bill provides significant penalties for these offences. I welcome that the increased penalties signal the seriousness of crimes such as producing, disseminating and possessing child pornography. That is a highly symbolic act and indicates that as a community we will not tolerate child exploitation.
Importantly—I really want to stress this—the Greens would also welcome more investment in other equally important responses to the problems of child pornography, including filling the gaps around research in order to better understand why perpetrators do what they do. For example, the research literature on adults who have a sexual interest in children has not yet caught up with the latest technology. This creates a real problem for us in deciding how matters should be prioritised for investigation and prosecution and, importantly, how we can develop responses for the treatment of offenders. We will actually have to start doing that, and we will have to start doing it better. Until we start dealing with the core issues of why people offend sexually against children, we will really only deal with the end result. I think all of us would agree that we want to deal with offending at the core level to stop people from even wanting to offend against children in the first place.
I also want to comment on some of the provisions of the bill and about the terms that are used in the bill. A question has been raised a number of times, both in the committee report and by Hon Kate Doust, about why the term “child exploitation material” has been used in the bill in preference to the term “child pornography”. I understand that concerns have been raised that the new term might serve to desensitise the community from the horrible nature of these crimes. I am sure members would agree that it is the last thing we are trying to do with this bill and that it is obviously something we do not want to happen. However, the Greens accept the government’s explanation that the term “child exploitation material” is a broader definition and that the proposed offences are more expansive, which means that we can include “abuse”, “cruelty” and “torture” as areas subject to penalty even when the offence is not committed in a sexual context. I also note the amendment proposed by the government in the bill to include the term “child pornography”. The Greens do not have a problem with that amendment either.
I am aware that, as with the introduction of any new terminology, people may find it takes a bit of getting used to. The term “child exploitation material” will need some public education for it to become more widely accepted and understood. We must ensure that under no circumstances should people believe it is intended to be a softening of the current term “child pornography”. Having said that, I acknowledge the reasons behind the use of the new terminology and note that it is also being supported by the police and the Parliamentary Counsel’s Office, so the Greens accept that the proposal to use both terms probably has some merit. However, the Greens would like to express some concerns about a lack of prescription in the terms “likely to offend a reasonable person”, “offensive” and “demeaning”. I acknowledge the advice given to the committee that some of the terms are already known to the law, that the proposed level of prescription prevents narrow definitions that could result in unintended consequences and that the lack of prescription allows flexibility for future developments, which is a positive thing. Technology is such a movable feast; at the moment it seems to me that new stuff is coming out every day—things that I could not have fathomed even a year ago! Amazing developments happen so often that I think it is really important that this bill, as much as possible, is structured in such a way that it will be relevant into the near future so that we can ensure it captures our concerns. I note the committee’s finding 1 in the report —
… that terms in the definition of “child exploitation material” in the Child Exploitation Material and Classification Legislation Amendment Bill 2009 do not require further prescription. In particular, the phrase “likely to offend a reasonable person” and the terms “offensive” and “demeaning” do not require further prescription.
I acknowledge this finding; however, I still have some concerns about this lack of prescription. As previously noted by my colleague Hon Giz Watson, what she, I and other members of this house might find offensive would probably be quite different from what a young person might find offensive, and possibly even different from what someone a couple of generations older than me might find offensive. We might find there are some vastly different ideas; therefore, I would feel more comfortable if these terms were more clearly defined. Although it is clear that there are definite benefits to leaving the task of determining the meaning of these terms to the courts, it does pose a number of dangers and is contrary to the common law principle that the law needs to be clearly defined before an offence is committed. Again, my concern is that by not defining the offence properly, we may actually deny what we recognise as a basic human right. I note that the committee also raised lack of prescription as a possible issue in proposed section 217.
The Greens (WA) support the committee’s recommendation in the report that — … “concerned” be deleted and “involved” be inserted in proposed sections 217(1)(a) and 217(1)(b).
I will move onto the very fraught issue of sexting, which Hon Kate Doust also talked about. One of the big concerns that the Greens have about the Child Exploitation Material and Classification Legislation Amendment Bill 2009 is the potential for it to adversely impact on young people, which would be a tragic irony considering that the very purpose of this bill is to afford children the greatest level of protection that we possibly can.
As noted by the committee, the Commissioner for Children and Young People has raised concerns about the increasingly common practice of sexting. A United States survey found that one in five teenagers had sent nude or semi-nude pictures or videos of themselves. Although I am not suggesting Australian kids’ behaviour is at that level yet, I think it would be naive of us to assume that it will not perhaps go in that direction and that these behaviours are becoming far more common. I find it very alarming. Things are very different from when I was a teenager. I am aware, as we have discussed, that sexting can have a lifelong impact, particularly when photographs are involved, which can stay with us for life. I am not suggesting that sexting is not an alarming trend among teens. It can be very dangerous and it can have some terrible consequences for both the person who sends it and the receiver. However, there are some different ways to deal with the rise of sexting rather than immediately moving to straight-out criminalisation of it in all cases, particularly among teens themselves. I am not talking about sexting between a minor and an adult. I am not quite sure how we deal with it; I am not sure that any of us could claim to have the solution, but we need to look at this in more detail and look at developing standards and some sort of protocols around these sexual behaviours and how we can handle these new ways of communication. Most importantly, we will have to engage in educating our teenagers and their parents on the ramifications of sexting. The thing about being a teenager is that we make mistakes and often do not understand the consequences of our behaviour. But the sorts of issues we are talking about can, as I have said already, have lifelong devastating effects and I am very concerned about that. We must look at better education programs for our teenagers. I completely agree with Hon Kate Doust that we need to teach our kids how to use websites such as MySpace, Facebook and YouTube: they need to understand what can happen if they put explicit photographs on their or other people’s web pages, and what it means to send explicit text messages. We will have to teach them that this behaviour will potentially have an impact on their lives in the long term. I think it is something we will need to look at very seriously in the near future.
My concern is that the legislation has the potential to result in children and young people becoming criminals as a result of engaging in these behaviours that we are acknowledging we are very concerned about. If charged or convicted under this legislation it will have a lifelong impact for a young person, apart from the devastating —
Hon Michael Mischin: Do you want to make an exception for juveniles —
Hon ALISON XAMON: I would like to continue. I raise the concerns so that I can hear the responses from the parliamentary secretary, and if he could place them on the record that would be great. I am concerned that if kids are charged or convicted under this legislation, it will impact on their capacity to undertake child-related work. They could have their names placed on the Australian National Child Offender Register. Any conviction will potentially impact on their future work and travel opportunities. These are really significant consequences for an act that, while deeply concerning, is viewed by a generation of kids as a right of passage. Page 50 of the report describes it as a “controlled means of sexual experimentation”. Any suggestion of the potential for police to take a hard line and automatically treat young people who send pictures to their boyfriend or girlfriend as criminals who traffic in child exploitation material is very concerning. There is enormous potential for this to impact on the rest of their lives, perhaps even more than the original act of sexting, which, as I have already said, in itself has quite a lot of potential to do damage.
I absolutely understand and agree with the view of the police that a blanket exemption for children is not appropriate. However, I am concerned that without adequate support, and in the absence of a set of police guidelines and protocols for dealing with these matters, this bill will have unintended long-term consequences for our youth, when we are actually trying to protect them.
The committee proposed that, particularly in sexting cases, a senior officer from the sex crime division of WA Police be required to approve any charge against a child before it proceeds. This would provide an appropriate check and ensure that charges against a child are proceeded with only in appropriate cases, and after careful consideration. I would welcome advice from the government specifically on that proposal.
The committee stated in recommendation 2 that the minister review the offence penalties in section 321 of the Criminal Code to ensure consistency and parity in penalties. The Greens support that recommendation. There is a lack of parity between the maximum penalty that applies to an offence under proposed section 217 and the existing penalties for similar offences under the Criminal Code. The DPP gave the following advice to the committee —
It seems a curious outcome that someone who has invited a 14 year old child to become involved in the production of child exploitation material, but has been unsuccessful at achieving that production, would be liable to 10 years imprisonment, while the person who has actually indecently dealt with or indecently recorded such a child is liable under s.321(8) to 7 years imprisonment.There may be a need to review penalties under s.321.
The Greens also acknowledge the concern that was raised by the DPP that the use of the term “produces” in the bill would not include all those involved in the production of child exploitation material. That led to the proposed amendment that is outlined in recommendation 3. The Greens support this proposed amendment.
During the committee’s hearings, the DPP advised that the defence that “the accused person did not know, and could not reasonably be expected to have known, that the material to which the charge relates describes, depicts or represents a person or part of a person in a way likely to offend a reasonable person” leaves open the possibility that an accused could argue that while he or she was aware of the contents of the material, he or she did not know that the contents were likely to offend a reasonable person. As a result of that advice, the committee has proposed the amendment outlined in recommendation 5. The Greens also support this proposed amendment.
I turn now to the artistic merit defence. This issue has been the cause of great controversy in recent years, particularly in Australia. The committee report refers to the case of the Bill Henson photographs, and to the diversity of community views that that case evoked. It notes the need for Parliament to achieve a balance between artistic rights and children’s rights. I note that WA Police said there were not enough cases to be able to form a solid opinion on these matters. I certainly agree with the committee’s acknowledgement that this defence may apply to advertising campaigns, articles or documentaries promoting ending child abuse where there are good public policy reasons for such material to be distributed. That shows that we cannot necessarily have a onesize-fits-all approach when we talk about the use of these sorts of images.
Hon Nick Goiran: Will you take an interjection on that?
Hon ALISON XAMON: I am happy to take an interjection from Hon Nick Goiran.
Hon Nick Goiran: If there were a campaign to end child abuse, surely such a campaign could be done without actually having a pornographic image.
Hon ALISON XAMON: Of course I can respond. I would certainly hope so. I will be honest: I have never seen any child pornography, and I hope I go through the rest of my life never having seen it. I feel sick at the prospect of viewing it in any form, including that. I am aware, however, that we are talking about a broader range of child abuse. I will refer to the fact that I got sent a YouTube video today from a Redress WA applicant, who has made a video of her experiences of being a physically abused child. It showed a series of images of what had happened to her. That was not her trying to engage in exploitative material; that was her trying to demonstrate to the world what had happened to her and her anger around what is happening in Redress. That demonstrated to me the simple showing of these images in a particular context. We have to look at the context in which the material is portrayed. I am sure that all of us at some point have probably been exposed to various images, particularly of child assault, and been horrified by it in news outlets and all sorts of things. Obviously, anything that would suggest that has been done for some sort of pleasure is repulsive, but if it actually serves to highlight and educate around a massive injustice, I suppose that is where we ought to look at the nuances around this bill. I note that the explanatory memorandum states that this defence exists so that artists, scientists, doctors and other persons are able to carry on with their work for the benefit of the community. This defence also replicates the defences under sections 58 and 101(2) of the enforcement act. The Greens (WA) do support the inclusion of this particular defence although I will note the concerns that I do not think it is intended to be a free-for-all under the guise of art to be able to depict anything people want to.
The onus of proof is an ongoing issue for the Greens. That probably would not surprise people. In the first report the committee raised the issue of the accused bearing the onus of proving the defences in proposed sections 221A(1) and 221A(2) in the bill. The government advised that the defence provided is not reversing the onus of proof. The Director of Public Prosecutions agreed with the government response with the onus and noted that it is arguable that the defence provided in the proposed sections reverses the onus of proof. In the view of the DPP this defence is appropriate, given the nature of the offence.
The committee also noted that the commonwealth and every other state include a number of defences with this legislation and the defences currently in the enforcement act reflect the committee’s finding. However, the Greens still remain very concerned with this proposal. The burden of proving someone has committed an offence should continue to lie with the prosecution. If someone is unwittingly in the possession of child exploitation material—for example, through spamming or through unsolicited emails—should that person still not be presumed innocent of a crime until proven guilty? I have not received child pornography but I have received unsolicited pornography when I was the women’s officer at the State School Teachers’ Union of WA many years ago. There was a charming little man who felt obliged to send me explicit photographs of women. I am assuming that they were over age—I certainly hope so—because he felt the need to send them to me on a weekly basis. I would open them because he would change names, and I had no idea what they were until they were in my face, and then I would go straight for “delete”. I am sure I am not the only member here who has received these charming little messages. I was very pleased that when I finished in that role they did not follow me, but apparently they did follow the person who took over the role after me, so it would appear to be one of the hazards of the job. I come back to this point: to not work with the presumption of innocence until proven guilty is very clearly contrary to international covenants, particularly that on civil and political rights.
I note that child protection workers are not afforded the exclusion from being charged with an offence that members of law enforcement agencies are granted. On hearing from the Minister for Child Protection, Hon Robyn McSweeney, and Western Australia Police, the committee was satisfied that child protection officers do not require the same level of protection as is offered to law enforcement agencies. The Greens are happy with that decision.
I come now to the very tricky issue of the mistaken belief of the age of the child. I would welcome the government’s response to the committee’s recommendation that, for example, an accused could argue that they believed the child involved in child exploitation material was aged 16 years or older. The committee’s recommendation 6 states —
The Committee recommends that proposed section 221A be amended to clearly reflect the Government’s intention in relation to whether section 24 of The Criminal Code applies to the proposed offences.
If the Government intended that an honest and reasonable, but mistaken, belief as to the age of a child should be a defence, then this should be clearly stated in proposed section 221A(1).
If the Government intended that an honest and reasonable, but mistaken, belief as to the age of a child should be excluded as a defence, then this should be clearly stated in proposed section 221A.
I will now refer to the amendments that I received only today. I note the parliamentary secretary’s intention to move an amendment to insert a provision outlining that it is no defence to a charge of an offence under sections 217, 218, 219 or 220 to prove that the accused person did not know the age of the child to whom the charge relates, or the age of the child described, depicted or represented in the material to which the charge relates, or believed that the child was 16 years of age or over.
The Greens (WA) feel that we have not been given sufficient time to give adequate consideration to this proposed amendment. We have had a break of almost three months and we could have received the proposed amendment earlier. The Greens would be greatly concerned if someone were to receive on their computer an image that appeared to be a woman in a sexual pose and they looked at it and even sent it on to their friends only to find out later that in actual fact it is a picture of 15-year-old. They would then face a significant period in jail for possessing or distributing child exploitable material. We need to consider further the implications of this proposed amendment.
Having said that, I clarify that whoever produced the image of the 15-year-old, particularly if that person distributed it knowing that it was a 15-year-old, is guilty of an extremely serious crime and should, of course, face the full weight of the law. We will have to start being realistic about the convoluted distribution channels for this type of material. I suppose they are some cautionary words. Having said that, I make it clear that the Greens absolutely believe that this is a very important bill, which includes important matters for this house to be discussing. We have a fundamental obligation to protect our children from the harm that is posed by child exploitation and child pornography with very strong and effective legislation. We acknowledge that this bill modernises and strengthens the legislation in relation to child exploitation and it also brings us in line with other states, and that is really important.
Again, the Greens (WA) would be concerned that in our haste and anxiety to protect our children we unwittingly expose them to potential harm of the long-term consequences of charges or convictions under this legislation stemming, particularly, from the increasingly common practice of sexting. I would be very concerned if the criminalisation of children became the outcome of the passage of this legislation when we are, rightly, trying to prosecute adults who are involved in the production and consumption of exploitative images of children and young people.