House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Combatting Child Sexual Exploitation Legislation Amendment Bill 2019

44. The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

45. The Bill amends the Criminal Code Act 1995 (Criminal Code), the Crimes Act 1914 (Crimes Act), the Customs Act 1901 (Customs Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Surveillance Devices Act 2004 (SD Act) to strengthen the laws protecting children from sexual abuse. It does this by improving the framework of offences relating to child sexual abuse material, overseas child sexual abuse, forced marriage, failing to report child sexual abuse and failing to protect children from such abuse.

46. The Bill implements a number of recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) by:

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creating a new offence of failure to protect children at risk of a child sexual abuse offence

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creating a new offence of failure to report a child sexual abuse offence, and

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strengthening the offence of persistent sexual abuse of a child outside Australia under section 272.11 of the Criminal Code.

47. The Bill also seeks to combat child sexual abuse by:

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creating a new offence of possessing a child-like sex doll, and expressly extending current offences relating to dealings with 'child abuse material', such as advertising, ordering, posting and importation, to child-like sex dolls

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creating a new offence of possessing or controlling 'child abuse material' in the form of data that was accessed or obtained using a carriage service

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strengthening the forced marriage offences under section 270.7B of the Criminal Code by ensuring they explicitly capture all marriages involving children under 16 years

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restricting the defence of valid and genuine marriage for sexual offences committed against children outside Australia under section 272.17 of the Criminal Code, and

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updating the terminology used for child sexual abuse offences in Commonwealth legislation to more appropriately reflect the gravity of and harm associated with child abuse materials.

48. Schedule 1 creates new offences of failure to report, and failure to protect children from, a child sexual abuse offence. These offences have been created in response to recommendations 33 and 36 of the Royal Commission's Criminal Justice Report, which found that these offences were required to incentivise the reporting and prevention of child sexual abuse. While these recommendations were directed at State and Territory governments, the introduction of offences directly applicable to Commonwealth officers is necessary and appropriate given the various capacities in which such officers engage with children.

49. Schedule 2 inserts a new offence for possessing child-like sex dolls into the Criminal Code and clarifies that existing offences relating to dealings such as advertising, ordering, posting and importing 'child abuse material' extend to these dolls. The measures in this Schedule will allow investigations and prosecutions relating to child-like sex dolls to be carried out, including consistently across jurisdictions.

50. Schedule 3 amends Division 474 of the Criminal Code to introduce a new offence of possessing or controlling 'child abuse material' that was accessed or obtained using a carriage service, addressing a gap in Commonwealth child sexual abuse offences.

51. Schedule 4 strengthens the existing offence of persistent sexual abuse of a child outside Australia in section 272.11 of the Criminal Code. These amendments reduce difficulties associated with proving repeated instances of abuse and respond to recommendations 21 and 22 of the Royal Commission's Criminal Justice Report.

52. Schedule 5 strengthens the existing forced marriage offences by ensuring they explicitly capture all marriages, including those formed by cultural and religious ceremonies, which involve children under 16 years. This clarifies that a child's consent or apparent acquiescence is irrelevant for the purposes of proving a forced marriage offence, and will simplify prosecutorial burden and reduce the need to call evidence from child victims.

53. Schedule 6 repeals section 272.17 of the Criminal Code, which currently provides a defence to certain child sexual offences committed outside Australia where a valid and genuine marriage existed between the defendant and alleged victim at the time the conduct constituting the offence was committed. It substitutes section 272.17 with a narrower defence based on a valid and genuine marriage for people in positions of trust or authority in relation to young people (at least 16 years but under 18 years) outside Australia, provided the young person had attained the age of 16 when the marriage was solemnised. This deters Australian offenders from sexually abusing vulnerable children and young people overseas.

54. Schedule 7 expands the meaning of 'child abuse material' and removes references to 'child pornography material' in a number of Commonwealth Acts. A number of Commonwealth Acts currently distinguish between 'child abuse material' and 'child pornography material'. Attaching the term 'pornography' to this material is a barrier in conveying the seriousness and gravity of the offences depicted in that material, as well as the harm faced by the children in that material. The inference remains that pornography is associated with consenting subjects, which is entirely inappropriate given this behaviour involves the sexual abuse of children.

Human rights implications

55. The human rights and freedoms engaged by the Bill fall under the following conventions to which Australia is a State Party:

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Convention on the Rights of the Child [1991] ATS 4 (CRC)

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International Covenant on Civil and Political Rights [1980] ATS 23 (ICCPR)

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International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR), and

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Convention on the Elimination of All Forms of Discrimination Against Women [1983] ATS 9 (CEDAW).

56. The measures contained in Schedule 2 of the Bill give further effect to Australia's obligations under the CRC, while the other measures positively engage with the principles underpinning- and the fundamental rights and freedoms protected by- the CRC, including:

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the best interests of the child as a primary consideration (Article 3)

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the right of the child to be protected from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse (Article 19)

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requirement to abolish traditional practices prejudicial to the health of children (Article 24(3))

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the right of the child to be protected from all forms of sexual exploitation and sexual abuse (Article 34),

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the right of the child to be protected against all other forms of exploitation prejudicial to any aspects of the child's welfare (Article 36), and

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the right of the child not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment (Article 37).

57. The measures contained in the Bill also advance obligations under the ICCPR, including:

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the right to freedom from slavery (Article 8(1)), and

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right to respect for the family, in particular the requirement that marriages shall be entered into with the free and full consent of the intending spouses (Article 23(3)).

58. The Bill also engages, and in some cases positively engages, the following rights from the ICCPR:

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the presumption of innocence (Article 14(2))

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right to protection against arbitrary and unlawful interferences with privacy (Article 17(1))

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freedom of thought, conscience and religion (Article 18(1))

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freedom of expression (Article 19(2)), and

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right to enjoy and benefit from culture (Article 27).

59. The Bill also positively engages Article 10(1) of the ICESCR, which provides (in part) that marriages shall be entered into with the free consent of the intending spouses.

60. The Bill also positively engages the following rights from the CEDAW:

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right to freely choose a spouse and enter into a marriage with free and full consent (Article 16(1)(b)), and

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that the marriage of a child shall have no legal effect (Article 16(2)).

The best interests of the child as a primary consideration (Article 3 of the CRC)

61. Article 3(1) of the CRC provides that in all actions concerning children the best interests of the child shall be a primary consideration, including by social welfare institutions, courts of law, administrative authorities and legislative bodies.

62. Under Article 3(2) of the CRC, States Parties undertake to ensure the child have such protection and care as is necessary for their well-being, taking into account the rights and duties of individuals legally responsible for them. This shall be done through appropriate legislative and administrative measures.

Failing to protect children from or report child sexual abuse

63. The new offences of failure to protect children from, or failure to report, child sexual abuse at proposed Division 273B of the Criminal Code positively engage Article 3 by ensuring that the best interests of the child are a primary consideration for Commonwealth officers who have care, supervision or authority over children.

64. The offences ensure that Commonwealth officers who provide care or supervision for children are compelled to report child sexual abuse to the police, and Commonwealth officers who provide care, supervision or authority over children take steps to protect children from this abuse.

65. In criminalising a failure to report or protect children from abuse, these measures positively engage Article 3(1) of the CRC by ensuring that the best interests of the child are a primary consideration and are protected over other considerations such as institutional, organisational or governmental reputation.

66. The offences also positively engage Article 3(2) as they compel persons with legal responsibility for children to provide protection and care that is necessary for their wellbeing. The offences also positively engage Article 3(3) as they ensure that Commonwealth officers responsible for care and protection of children conform to proper safety standards, ensuring that signs of child sexual abuse are quickly and effectively dealt with.

Forced marriage and restricting the defence of valid and genuine marriage

67. The Bill amends the definition of 'forced marriage' to capture all marriages involving children under 16 years. It also repeals the defence of valid and genuine marriage under the Criminal Code, which can currently be used by offenders to escape culpability for sexual crimes committed against children under 16 years outside Australia if they can prove that they were legally married to the child in any jurisdiction (which includes a place outside Australia). In some overseas jurisdictions, adults are permitted to marry children as young as 10 years old.

68. These amendments positively engage and go beyond Article 3(1) as they compel courts of law to treat the best interests of the child, specifically the harmful effects of child marriage, not just as a primary consideration but actually paramount to other considerations such as cultural sensitivities and recognition of foreign laws.

Right of the child to be protected (Articles 19, 34 and 36 of the CRC)

69. Article 19(1) of the CRC provides that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has care of the child.

70. Further, Article 19(2) provides that such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

71. Article 34 of the CRC provides that States Parties should undertake to protect children from all forms of sexual exploitation and sexual abuse, including taking all appropriate measures to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices, and the exploitative use of children in pornographic performances and materials.

72. Article 36 of the CRC provides that States Parties should protect children against all other forms of exploitation prejudicial to any aspects of their welfare.

Failing to protect children from or report child sexual abuse

73. The new offences at proposed Division 273B of the Criminal Code require Commonwealth officers with care or supervision of children to report the sexual abuse of children, and Commonwealth officers with care, supervision or authority over children to remove known risks of the sexual abuse of children.

74. These offences positively engage Article 19(1) as they are appropriate legislative measures that criminalise: the failure to protect children from sexual abuse whilst under the care, supervision or authority of a person in their capacity as a Commonwealth officer; and Commonwealth officers who care for or supervise children and fail to report suspected or believed child sexual abuse to police. Further, the proposed 'failure to protect' offence protects children from neglect or negligent treatment, as it criminally punishes a defendant's negligent failure to reduce or remove a substantial risk of child sexual abuse that the defendant knows of.

75. The new offences also positively engage Article 19(2) by making it criminal to fail to report child sexual abuse to police and reinforcing the use of existing reporting, referral and investigation procedures (raising the possibility of judicial involvement through criminal proceedings or other preventative action) to reduce or remove the risk that this abuse would occur.

76. The new offences also positively engage the right of the child not to be induced or coerced into unlawful sexual activity under Article 34 of the CRC. It does this by imposing criminal sanctions on Commonwealth officers who fail to report, or take steps to reduce or remove the risk of, child sexual abuse once they become aware of relevant information. This obligation will prevent the inducement or coercion of children into sexual activity from occurring, continuing or being concealed.

77. The offences in relation to the failure to report or prevent child sexual abuse offences positively engage Articles 19 and 34 of the CRC.

Persistent child sexual abuse

78. The Bill strengthens the offence of persistent child sexual abuse overseas by reducing difficulties associated with charging repeated instances of child sexual abuse. The amended offence would criminalise two or more occasions of the following conduct over any period: engaging in sexual intercourse or sexual activity with a child overseas, or causing a child to engage in sexual intercourse or sexual activity overseas in the presence of the defendant. This is a departure from the current offence, which requires three or more occasions of this conduct occurring.

79. These amendments positively engage Article 19(1) as they are appropriate legislative measures to protect children from repeated child sexual abuse when it occurs outside Australia. These amendments further protect children from violence, injury, abuse and exploitation overseas, including by perpetrators against children under their care. These amendments also positively engage Article 19(2) as they increase the general and specific deterrence for committing sex offences against children overseas.

80. The amendments positively engage Article 34 by strengthening offences to protect children from overseas sexual exploitation and abuse. The amendments have a preventative and deterrent effect on the commission of repeated unlawful sexual activity with a child overseas. For example, the amendments strengthen the ability to prosecute a perpetrator who causes a child to engage in repeated sexual activity in their presence for the exploitative use of the child in prostitution-like performances.

81. Therefore, the amendments to the offence of persistent child sexual abuse overseas positively engage Articles 19(1), 19(2) and 34 of the CRC.

Possession and other dealings with child-like sex dolls

82. The new offence at section 273A.5 of the Criminal Code criminalises the possession of child-like sex dolls. Additionally, the term 'child abuse material' at section 473.1 of the Criminal Code has been extended to clearly capture these dolls or objects, thereby also criminalising certain dealings with these dolls or objects. This would include using a carriage service to advertise or order a child-like sex doll, using a postal service to send a child-like sex doll, or importing a child-like sex doll.

83. These measures give further effect to Australia's obligations under Articles 19 and 34, given the likelihood that child-like sex dolls increase the risk of harm to real children. The Australian Institute of Criminology has reported: it is possible that use of child-like sex dolls may lead to escalation in child sex offending, from viewing online child abuse material to contact sexual offending; the use of child-like sex dolls may desensitise users from the potential harm that child abuse causes; the sale of child-like sex dolls potentially results in the risk of children being objectified as sexual beings; child-like sex dolls could be used to groom children for sex (in the same way that adult sex dolls have already been used). ^[2]

84. Prohibiting child-like sex dolls is necessary to prevent and reduce the risk of child sexual abuse. The proposed offences therefore give further effect to Articles 19(1), 19(2) and 34 of the CRC.

Possession of child abuse material

85. The new offence at section 474.22A criminalises the possession of 'child abuse material' where the material is in the form of data obtained or accessed using a carriage service.

86. This measure positively engages with Australia's obligations under Articles 19, 34 and 36, as 'child abuse material' includes material that depicts a child who is a victim of sexual abuse, torture, cruelty, or physical abuse. Schedule 3 of the Bill positively engages Article 34 by increasing the general and specific deterrence for committing child sex offences through the creation of new offences to criminalise emerging gaps in Commonwealth offences for technology-facilitated child sexual abuse. Furthermore, the victimisation and harm caused to the child who is the subject of 'child abuse material' which is available to be accessed or obtained by use of a carriage service can be prolific, causing the child to be re-traumatised and re-victimised.

87. The proposed offence criminalises a greater variety of 'child abuse material' and types of dealings with this material, reducing their influence and, by extension, any further abuse of children that may arise following the use of this material. The proposed offence therefore positively engage Articles 19(1), 19(2) and 34 of the CRC.

Forced marriage and restricting the defence of valid and genuine marriage

88. The Bill expands the definition of forced marriage to explicitly capture all marriages involving children under 16 years of age. This positively engages Article 19 of the CRC as it combats the practice of forced marriage, which places victims at increased risk of early sexualisation, physical, sexual, psychological and financial abuse, and self-harm. It can also result in diminished autonomy, restrictions on freedom of movement, isolation and denial of access to education and employment. The perpetrators of forced marriage are commonly individuals who have care of the child, including the victims' parents, close relatives and/or religious and community leaders.

89. The Bill also engages positively with Article 19 by restricting the defence of valid and genuine marriage, increasing the general and specific deterrence for committing sex offences against children outside Australia.

90. These measures also positively engage Article 34 as forced marriage is often, if not always, followed by sexual abuse. In addition, the repeal of the defence of valid and genuine marriage also engages positively with Article 34 by removing a legal vulnerability that allowed individuals to escape criminal liability for engaging in the sexual abuse of children under 16 years of age overseas.

91. The Bill positively engages with Article 36 by protecting children against exploitation prejudicial to their welfare, including forced marriage and the abuse that it entails.

92. These proposed amendments therefore positively engage Articles 19(1), 19(2) 34, and 36 of the CRC.

Requirement to abolish traditional practices prejudicial to the health of children (Article 24(3) of the CRC)

93. Article 24(3) of the CRC provides that each State Party 'shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children'.

Forced marriage and the repeal of the defence of valid and genuine marriage

94. Forced marriage is a harmful practice that disproportionately affects young women and girls, globally and domestically. Forced marriages involving children are often accompanied by early and frequent pregnancies and childbirth, resulting in higher than average maternal morbidity and mortality rates. In addition to the impacts on sexual and reproductive health, forced marriage also exposes victims to increased risk of physical, sexual, psychological and financial abuse, as well as self-harm and suicide.

95. The Bill further fulfils Australia's obligations under Article 24(3) by strengthening the existing forced marriage offences to ensure they explicitly capture all marriages involving children under 16 years of age, and by restricting the defence of valid and genuine marriage. This will protect children's health by increasing community awareness and understanding of forced marriage as a harmful practice, which may impact on a child's sexual and reproductive health and which should be abolished.

Right of the child not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37 of the CRC)

96. Article 37 of the CRC provides that States Parties shall ensure '[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment'.

97. The new offence at section 474.22A positively engages this Article by criminalising the possession of 'child abuse material' in the form of data held in a computer or contained in a data storage device. Specifically, the offence applies where it is presumed the material was accessed or obtained by a carriage service. 'Child abuse material' includes material that depicts a child who is a victim of torture, cruelty or physical abuse and is done in a way that reasonable persons would regard as being offensive. Criminalising this behaviour at the Commonwealth level contributes to the protection of children from torture or other cruel, inhuman or degrading treatment or punishment as required under the CRC.

Right to freedom from slavery (Article 8(1) of the ICCPR)

98. The right to freedom from slavery set out in Article 8(1) of the ICCPR provides that no one shall be held in slavery, and that slavery and the slave-trade in all their forms shall be prohibited.

99. The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery expands the definition of slavery in the 1926 International Convention to Suppress the Slave Trade and Slavery to encompass slavery-like practices including forced marriage and certain instances of child exploitation.

100. The Bill engages positively with Article 8(1) by expanding the definition of forced marriage to explicitly capture all marriages involving children under 16 years.

Right to the presumption of innocence (Article 14(2) of the ICCPR)

101. Article 14(2) of the ICCPR states that those charged with criminal offences have the right to be presumed innocent until proved guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

Possession of child abuse material

102. The new offence at section 474.22A engages this Article by applying the presumption set out in section 475.1B to the new 474.22A(3) of the Criminal Code. The presumption in section 475.1B of the Criminal Code provides that it is presumed-unless the person proves to the contrary-that the person used a carriage service to engage in that conduct if:

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a physical element of the offence consists of a person using a carriage service to engage in particular conduct, and

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the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct.

103. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical. Such evidence can be circumstantial, including for example that the defendant's computer had chat logs saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.

104. The presumption in subsection 474.22A(3) will have the effect that if the prosecution proves beyond reasonable doubt the elements at subsections 474.22A(1)(a), (b), and (d) of the Criminal Code, it is presumed that material was obtained by the defendant by the use of a carriage service. The presumptions will stand unless the defendant proves a carriage service was not used.

105. The offences in Schedule 3 rely on the Commonwealth's telecommunications power under the Australian Constitution at section 51(v). Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.

106. Given the objective of the presumptions in sections 475.1B and the new subsection 474.22A(3) of the Criminal Code, it is not unreasonable that the presumptions would be applied to the new carriage service offence. Accordingly, to the extent this measure limits the right to presumption of innocence, this is a permissible limitation.

Right to protection against arbitrary and unlawful interferences with privacy (Article 17(1) of the ICCPR)

107. Article 17(1) of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence, and to unlawful attacks on a person's reputation.

108. The term 'unlawful' in Article 17 means no interference can take place except in cases authorised by law. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The United Nations Human Rights Committee has interpreted reasonableness in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

Failure to report offence

109. The Bill engages the right to protection against arbitrary or unlawful interference with privacy to the extent that the failure to report offence criminalises a Commonwealth officer who fails to disclose information about a child when such information is founded on a reasonable belief or suspicion that the child has been, or will be, the victim of sexual abuse.

110. The offence limits the right in Article 17 by requiring reporting. However, this limitation is lawful as it is clearly prescribed by law. Further, the limitation is not arbitrary, as it is reasonable, necessary and proportionate to achieving the legitimate objectives of preserving public order and protecting the rights and freedoms of children.

111. The Royal Commission found that an offence to this effect is necessary to achieve these objectives as members of institutions were found to have repeatedly failed to report child sexual abuse, due to motivations such as avoiding reputational damage to the institution. Criminalising a failure to report would thereby incentivise these persons to report suspected or believed abuse, as the liability to criminal conviction compels the person to place the interests of the child above a desire to preserve institutional reputation or other motivations.

112. Further, there are a range of factors that contribute to the underreporting of child sexual abuse, including the immaturity and vulnerability of the victim as well as the power imbalance that often exists between the perpetrator and victim. Unlike offences where the victim is an adult and capable of reporting the criminal conduct directly to police, the circumstances that frequently surround child sexual abuse necessitate an obligation being placed on persons charged with the care or supervision of children to ensure that this abuse is brought to the attention of appropriate authorities. This obligation helps ensure that children are afforded protection from violence, sexual abuse and other forms of harm and exploitation consistent with Articles 19 and 34 of the CRC.

113. This limitation is also reasonable and proportionate, as a person will only be required to report to relevant Australian police services, which are bound by their own privacy obligations in handling the information.

114. A person is also only obliged to report where they are a Commonwealth officer, the risk arises in relation to a child within their care or under their supervision, and they know of information that would lead a reasonable person to suspect or believe that the child was, or will be, subject to a child sexual abuse offence. The information that could come within the scope of this requirement will be directly related to the individual's employment as a Commonwealth officer. The reference to a 'reasonable person' ensures that officers are only obliged to report information that would objectively indicate a child sexual abuse offence has or will occur.

115. There are also defences at subsection 273B.4(3) which ensure that a person will not be liable for the offence in particular situations where the information is already known to authorities, in the public domain or the disclosure could put another person (other than the offender) at risk.

116. To the extent that this offence limits the right to privacy, this limitation is reasonable, necessary and proportionate to achieve the legitimate objectives of preserving public order and protecting the rights and freedoms of children.

Possession of child abuse material

117. The Bill creates a new offence of possessing or controlling child abuse material that has been obtained or accessed using a carriage service.

118. This measure engages the right to privacy as it interferes with a person's personal property, including what may be contained within a family home.

119. This measure is clearly lawful (as it is prescribed by law) and it is not arbitrary, as it is reasonable, necessary and proportionate to achieve the legitimate objectives of protecting public morals, public order and protecting the rights and freedoms of children.

120. This measure is necessary to achieve these objectives as such material victimises and abuses the subject of the material, being an actual child.

121. This measure is also reasonable and proportionate in achieving these objectives. In determining whether material is 'child abuse material', a factor for consideration is whether a reasonable person would regard the depiction as offensive, taking into account the considerations outlined at section 473.4 of the Criminal Code. These include the standards of morality decency and propriety generally accepted by reasonable adults, the literary, artistic or educational merit (if any) of the material, and the general character of the material (including whether it is of a medical, legal or scientific character).

122. Where the measure limits the right to privacy, it therefore does so to achieve legitimate objectives in a necessary, reasonable and proportionate manner.

Possession of and prevention of other dealings with child-like sex dolls

123. The Bill creates an offence of possessing a child-like sex doll, as well as criminalising other dealings with child-like sex dolls, such as importing, ordering or posting a child-like sex doll. The Bill also allows for officers to seize child-like sex dolls under Part IE of the Crimes Act and under the Customs Act.

124. These measures engage the right to privacy as they interfere with a person's personal property, including what may be contained within a family home.

125. These measures are clearly lawful (as they are prescribed by law) and they are not arbitrary, as they are reasonable, necessary and proportionate to achieve the legitimate objectives of protecting public morals, public order and protecting the rights and freedoms of children.

126. These measures are also necessary to achieve the above objectives as the use of child-like sex dolls increases the chance that an offender will engage in the contact abuse of children and often tacitly supports an industry that profits from, and perpetrates, the abuse of children.

127. These measures are also reasonable and proportionate in achieving these objectives. In determining whether an object is a child-like sex doll, a primary consideration is whether a reasonable person would consider it likely that the doll is intended to be used for the purpose of simulating sexual intercourse. This ensures that children's toys are not covered by the offences. In addition, it is a defence to the possession of child-like sex dolls offence that the possession is for a legitimate purpose, such as law enforcement, the administration of justice or scientific, medical or educational research approved by the Minister.

128. Where the measures limit the right to privacy, they do so to achieve legitimate objectives in a necessary, reasonable and proportionate manner.

Consequential amendments to the TIA Act

129. The TIA Act provides an investigatory powers framework in which law enforcement and national security agencies can intercept communications, or access stored communications and telecommunications data, for the purposes of investigating offences. The Bill amends the TIA Act to allow for interception and access to stored communications to be used as part of investigating the new possession of child-like sex dolls offence. Section 5D of the TIA Act will be amended to include the possession of child-like sex dolls as a 'serious offence' for the purposes of the TIA Act.

130. Interception powers under the TIA Act can only be authorised if the investigation relates to an offence punishable by a maximum penalty of imprisonment for seven years or more (unless specifically provided for otherwise). As the possession of child-like sex dolls is punishable by a maximum period of imprisonment of 15 years, the seriousness of the offence will permit access to interception powers.

131. The TIA Act will also permit access to stored communications by coming under the definition of a 'serious contravention', and access to telecommunications data by virtue of being for the 'enforcement of the criminal law'.

132. The exercise of these investigatory powers will engage the right to privacy, as it will allow certain law enforcement agencies to access private information. However, where this measure limits this right, it is reasonable, necessary and proportionate to achieve the legitimate objective of defending public morals, public order and protecting the rights and freedoms of children.

133. The TIA Act contains various safeguards and oversight mechanisms to ensure that where these investigatory powers are used to investigate and prosecute the possession of child-like sex doll offence, they are reasonable and proportionate. Safeguards include:

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judicial oversight when issuing telecommunications interception and stored communications warrants

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strict use and disclosure frameworks for information obtained pursuant to a warrant or authorisation, and information relating to a warrant or authorisation (including strict rules on how that information may be used in court proceedings), and

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oversight by Commonwealth, State and Territory oversight agencies to ensure that powers are exercised in line with the legislative framework.

134. The use of the telecommunications network, services and devices can be necessary for sourcing child-like sex dolls and any ancillary actions in order for the person to obtain them. Accordingly, the use of interception, access to stored communications, and telecommunications data, will be critical to the investigation of these offences.

135. Accordingly, where these amendments authorise the use of intrusive powers such as the use of interception, access to stored communications and access to telecommunications data, and subsequently impact the right to privacy, any limitations on this right are authorised by law and are not arbitrary.

Consequential amendments to the SD Act

136. Similar to the TIA Act, the Bill will allow for certain law enforcement agencies to seek emergency authorisation for the use of a surveillance device warrant for an investigation into a possession of child-like sex doll offence.

137. However, these emergency authorisations are clearly lawful (as they are prescribed by law) and they are not arbitrary, as they are reasonable, necessary and proportionate to achieve the legitimate objectives of protecting public morals, public order and protecting the rights and freedoms of children.

138. These emergency authorisations can only be used in circumstances where strictly necessary under paragraph 30(1)(b), being issued where:

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the use of the surveillance device is immediately necessary to prevent the loss of any evidence related to an investigation into a possession of child-like sex doll offence

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the circumstances are so serious and the matter is of such urgency that the use of the surveillance device is warranted, and

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it is not practicable in the circumstances to apply for a surveillance device warrant.

139. The SD Act is subject to safeguards and oversight mechanisms to ensure that where the use of these investigatory powers are used to investigate and prosecute this offence, they are reasonable and proportionate. Safeguards include:

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judicial oversight and issuing of warrants

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strict use and disclosure frameworks for information obtained pursuant to a warrant, and information relating to a warrant (including strict rules on how that information may be used in court proceedings), and

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oversight by Commonwealth, State and Territory oversight agencies to ensure that powers are exercised in line with the legislative framework.

140. Accordingly, where these amendments authorise the use of intrusive powers such as the use of surveillance devices and computer access warrants it will subsequently interact with the right to privacy. However, any limitations on this right are authorised by law and are not arbitrary.

Freedom of thought, conscience and religion (Article 18(1) of the ICCPR)

141. Article 18(1) of the ICCPR provides that everyone shall have the right to freedom of thought, conscience and religion, including to have or to adopt a religion or belief of their choice, and to worship, observe, practice and teach that religion in public or private.

142. Article 18(3) of the ICCPR provides that freedom to manifest one's religion or beliefs may be subject only to limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The limitation must be necessary to achieve the desired purpose, and must be proportionate to the need on which the limitation is predicated.

143. The Bill engages the right to freedom of religion to the extent the failure to report offence mandates that all Commonwealth officers, which may include members of the clergy, who exercise care or supervision over children must report child sexual abuse. The offence contains no limitations in relation to information that is obtained during confession.

144. The offence is necessary to respond to recommendations 33, 34(b) and 35 of the Royal Commission and to address the historic systemic failure to report information relating to child sexual abuse. While instances where members of the clergy are both Commonwealth officers engaging in the care or supervision of children and taking religious confession are undoubtedly limited, this limitation on the right contained in Article 18(1) is reasonable, proportionate and necessary.

145. The offence is reasonable and proportionate as it applies equally to all Commonwealth officers, and is necessary noting the objective is to bring information relating to the sexual abuse of children to the attention of the authorities. Further, it is not a general abrogation of this right, but a limited and proportionate encroachment in circumstances where information is known to the person that would lead a reasonable person to suspect or believe that a person has engaged, or will engage, in child sexual abuse. Any legal protections or privileges that currently exist, or may exist in the future, in relation to the religious confession will be unaffected by this offence. For example, members of the clergy are still protected from giving evidence that a religious confession was made, or the contents of a religious confession, before a court through section 127 of the Evidence Act 1995.

Freedom of expression (Article 19(2) of the ICCPR)

146. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime). Restrictions must be provided by law and be necessary for attaining one of these purposes.

147. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. In order for a proposed law to be considered a necessary restriction on freedom of expression on the grounds of public order (which includes crime prevention), the restriction must be clearly defined.

Possession of child abuse material

148. The offence created at section 474.22A engages the right to freedom of expression under Article 19 to the extent that it criminalises the possession of 'child abuse material' in the form of data that has been accessed via a carriage service. It therefore may have a chilling effect on the use of carriage services to seek, receive and impart information.

149. Per Article 19(3), the restriction on freedom of expression and the prospective chilling effect is reasonable to meet the outcome of preventing the possession of and access to 'child abuse material'. In determining whether material is 'child abuse material', a factor for consideration is whether a reasonable person would regard the depiction as offensive, taking into account the considerations outlined at section 473.4 of the Criminal Code. These include the standards of morality decency and propriety generally accepted by reasonable adults, the literary, artistic or educational merit (if any) of the material, and the general character of the material (including whether it is of a medical, legal or scientific character).

150. Further, the amendment positively engages with a child's right to freedom of expression by protecting children's right to seek, receive and impart information using a carriage service, free from the threat of physical or mental violence (including sexual abuse).

151. The Bill aims to prevent criminal activity by targeting conduct that victimises and results in the sexual abuse of children. To the extent that the right to freedom of expression in Article 19 is limited, these limitations are provided by law and for a specified purpose of preventing serious crimes against children.

Right to enjoy and benefit from culture (Article 27 of the ICCPR)

152. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities within a country to enjoy their own culture, practise their own religion and use their own language.

Forced marriage and restricting the defence based on valid and genuine marriage

153. To the extent that the marriage of children may be seen to reflect a cultural or religious practice, the Bill may limit the right of minorities to enjoy their own culture under Article 27 of the ICCPR.

154. In addition to marriages recognised under law, existing subsection 270.7A(2) of the Criminal Code provides that forced marriage offences can apply to registered relationships as well as marriages that are void, invalid or not recognised by law for any reason, including those formed by cultural and religious ceremonies.

155. The United Nations Human Rights Committee has made it clear that 'none of the rights protected under [A]rticle 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant' (Human Rights Committee, General Comment 23 paragraph 8).

156. The marriage of children is directly inconsistent with the requirement that no marriage shall be entered into without the free and full consent of the intending spouses, which is enshrined in Article 23(3) of the ICCPR, Article 10(1) of the ICESCR and Article 16(1)(b) of the CEDAW. This is because minors lack capacity to consent.

157. The Bill seeks to protect children against serious forms of exploitation by ensuring the existing forced marriages explicitly capture all marriages involving children under 16 years. The Bill also repeals the defence to overseas child sex offences in section 272.17 to ensure Australian offenders are no longer permitted to escape culpability by relying on a marriage to a vulnerable child under 16 years. The Bill ensures a restricted defence based on a valid and genuine marriage remains available for defendants in positions of trust or authority who engage in sexual activity with young persons (at least 16 but under 18 years) outside Australia, provided the young person was at least 16 years old at the time the marriage was entered into.

158. To the extent that the right in Article 27 is restricted, this restriction is reasonable and necessary in the circumstances.

Requirement that no marriage shall be entered into without the free and full consent of the intending spouses (Article 23(3) of the ICCPR, Article 10(1) of the ICESCR and Article 16(1)(b) of the CEDAW)

159. The Bill positively engages with the requirement that no marriage shall be entered into without the free and full consent of the intending spouses, which is enshrined in Article 23(3) of the ICCPR, Article 10(1) of the ICESCR and Article 16(1)(b) of the CEDAW.

160. The text of the relevant treaty articles relating to the right to marry make it clear that limitations based on age are permissible and, indeed, required in order to protect those-including children-who do not have the capacity to consent to marriage.

161. Article 16(2) of the CEDAW further provides that the betrothal and marriage of a child shall have no legal effect. This reflects the fact that girls are disproportionately affected by this harmful practice, both globally and domestically.

162. The Bill advances Article 16 by expanding the forced marriage offences to explicitly criminalise all marriages involving children under 16, including those formed by cultural and religious ceremonies. This clarifies that any marriages involving children under the age of 16 have no legal effect.

Conclusion

163. The Bill is compatible with human rights as set out above: it promotes the protection of human rights related to the protection of children and to the extent that it may limit other human rights, those limitations are reasonable, necessary and proportionate.