Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)General Outline
1. The Bill protects children from sexual exploitation by improving the Commonwealth framework of offences relating to child abuse material, overseas child sexual abuse, forced marriage, failing to report child sexual abuse and failing to protect children from such abuse.
2. The Bill implements a number of recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) by:
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- creating an offence of failure to protect a child at risk of a child sexual abuse offence
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- creating an offence of failure to report a child sexual abuse offence, and
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- strengthening overseas persistent child sexual abuse laws.
3. The other measures in the Bill form a suite of child protection measures to target child exploitation that occurs both overseas and in Australia, enhancing investigation and prosecution outcomes at the Commonwealth level. These measures:
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- criminalise the possession or control of child abuse material in the form of data that has been obtained or accessed using a carriage service
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- prevent certain dealings with child-like sex dolls
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- criminalise the possession of child-like sex dolls
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- improve the definition of forced marriage
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- restrict the defence based on a valid and genuine marriage to overseas child sex offences, and
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- remove references to 'child pornography material' in a number of Commonwealth Acts and replace with 'child abuse material'.
4. The Bill amends the Criminal Code Act 1995 (Criminal Code ), the Customs Act 1901 (Customs Act ), the Crimes Act 1914 (Crimes Act), the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 to achieve these objectives.
Schedule 1 - Failure to protect a child at risk of a child sexual abuse offence
5. Recommendation 36 of the Royal Commission's Criminal Justice Report stated that State and Territory governments should introduce legislation to create a criminal offence of failure to protect a child within an institution from a substantial risk of sexual abuse by an adult associated with the institution.
6. The Bill recognises that the Commonwealth also has the scope and the responsibility to introduce a similar offence. As Commonwealth representatives engage with children in various capacities, it is important that the Commonwealth take all reasonable steps to protect children within its care, supervision or authority from sexual abuse.
7. The Bill introduces a new offence in the Criminal Code for a Commonwealth officer who negligently fails to reduce or remove the risk of a child under their care, supervision or authority being sexually abused, if it is part of their actual or effective responsibilities as a Commonwealth officer to reduce or remove that risk.
8. Criminalising the failure to protect is primarily designed to prevent child sexual abuse from occurring, while criminalising the failure to report (below) is intended to bring to light abuse that has occurred or will occur. Reporting a suspected perpetrator to police may be one of the steps that could be taken to protect a child, but it may not sufficiently reduce or remove the risk in the particular situation. In such circumstances, more immediate steps and interventions may be required to mitigate the risk. For example, a Commonwealth officer may decide that reasonable steps to protect a child require them to suspend a suspected person from all duties that involve direct contact with children or any unsupervised interactions with children.
Schedule 1 - Failure to report a child sexual abuse offence
9. Recommendation 33 of the Royal Commission's Criminal Justice Report was also directed at State and Territory governments, and stated that jurisdictions should introduce a criminal offence for failing to report child sexual abuse. The Bill recognises that Commonwealth officers should also have responsibilities to report child sexual abuse to the police and should face criminal sanctions for failing to do so.
10. The Bill introduces a new offence in the Criminal Code for failing to report a child sexual abuse offence. Under this offence, a Commonwealth officer, who exercises care or supervision over children, will be guilty of an offence if they know of information that would lead a reasonable person to believe or suspect that another person has or will engage in conduct in relation to a child that constitutes a child sexual abuse offence, and they fail to disclose that information as soon as practicable to a police force or service of a State or Territory or the Australian Federal Police.
Schedule 2 - Preventing the possession of child-like sex dolls
11. The Bill criminalises the possession of a child-like sex doll in the Criminal Code and, consequential to the expansion of the term 'child abuse material' in Schedule 7, makes a child-like sex doll 'child abuse material' for the purposes of the Criminal Code and the Customs Act.
12. Schedule 2 responds to an emerging form of child abuse material: child-like sex dolls. These objects are three-dimensional, resemble children and have imitation orifices that are intended to be used for simulating sexual intercourse. The purported sexual abuse of children through the use of child-like sex dolls must be criminalised to reduce the risks that these behaviours may escalate the risk posed to real children. Contemporary research is more frequently referencing this risk.
13. In 2019, research by the Australian Institute of Criminology revealed that:
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- it is possible that the use of child-like sex dolls may lead to escalation in child sex offending, for example similar to the way that viewing online child abuse material may lead to contact sexual offending
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- the use of child-like sex dolls may desensitise users from the potential harm that actual child sexual abuse causes
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- the sale of child-like sex dolls potentially results in the risk of children being objectified as sexual beings, and
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- child-like sex dolls could be used to groom children for sex (in the same way that adult sex dolls have already been used). [1]
14. These amendments are intended to further implement Australia's obligations under Articles 19 and 34 of the United Nations Convention on the Rights of the Child [1991].
15. The Commonwealth framework of child sexual abuse and exploitation offences covers a range of dealings with material that constitutes child sexual abuse, primarily in relation to a carriage service, postal service, dealings with child abuse material committed overseas, and its importation/exportation. It is important that these offences are amended to keep pace with the evolving threats posed by child sex offenders. The amendments made by the Bill will ensure that these new forms of child sexual abuse are clearly criminalised.
16. By amending the definition of 'child abuse material' in the Criminal Code, it will be put beyond doubt that it is criminal to, for example, use a carriage service to advertise or solicit, or use a postal service to send, child-like sex dolls. Similarly, the Bill amends the Customs Act to clarify that child-like sex dolls are a form of child abuse material. This will provide certainty to officers at the border, who are responsible for detecting different forms of child abuse material, that these objects are prohibited.
Schedule 3 - Possession or control of child abuse material that has been sourced using a carriage service
17. The Bill introduces a new offence in Subdivision D of Division 474 of the Criminal Code for the possession or control of 'child abuse material' in the form of data held in a computer or contained in a data storage device and that was obtained or accessed via a carriage service.
18. The introduction of the offence will strengthen the Commonwealth's framework for criminalising online child abuse. Existing offences criminalise other online dealings in child abuse material, including transmitting, accessing, distributing and soliciting material, and possessing child abuse material with the intention to deal with it over a carriage service. The new offence captures the act of possessing child abuse material obtained through a carriage service (e.g. the internet) to ensure the possession itself is captured under Commonwealth criminal laws.
Schedule 4 - Strengthening overseas persistent child sexual abuse laws
19. The Bill also strengthens existing laws for overseas persistent child sexual abuse by reducing the difficulties associated with distinguishing particular occasions of offending from repeated and regular child sexual abuse.
20. Section 272.11 of the Criminal Code criminalises persistent sexual abuse of a child overseas. The offence requires at least three underlying occasions of child sexual abuse overseas against the same child to be proved over any period of time. The offence carries a maximum penalty of 25 years' imprisonment.
21. The Bill lowers the minimum number of underlying occasions of abuse required to prove the offence in section 272.11 from three occasions to two. These amendments require the trier of fact to agree on the same two underlying occasions of abuse. This is more compatible with the way in which child victims remember repeated and regular sexual abuse. These amendments reduce the difficulties associated with requiring such a victim to distinguish particular occasions of offending. This will increase the ability to prosecute for repeated, regular and ongoing child sexual abuse overseas.
22. The Royal Commission heard evidence that there is a real risk that the most extensive cases of repeated child sexual abuse may be the hardest to prosecute. This is because of the difficulties for a victim to distinguish specific instances of abuse in cases of repeated, regular, and ongoing child sexual abuse. These difficulties may arise where the offending is the same or similar on each occasion, occurs regularly over a period of time, where the victim is very young at the time of offending, and/or there are delays in reporting the abuse. In response, recommendations 21 and 22 of the Royal Commission's Criminal Justice Report recommended that State and Territory governments strengthen persistent child sexual abuse offences to reduce the difficulties associated with proving the particulars of repeated instances of abuse.
23. The Bill recognises that the Commonwealth also has the responsibility to strengthen the Commonwealth offence of persistent child sexual abuse overseas. By bringing the minimum number of occasions of abuse required to prove the overseas offence from three to two, the Bill responds to relevant Royal Commission recommendations.
Schedule 5 - Expanding the definition of forced marriage
24. The Bill also makes amendments to strengthen the forced marriage offences in the Criminal Code to increase the protections available for children against this serious form of exploitation.
25. Section 270.7B of the Criminal Code criminalises causing a person to enter a forced marriage, and being party to a forced marriage. The offences carry maximum penalties of seven years' imprisonment, or nine years' imprisonment when aggravating factors are present (such as when the victim is under 18 years of age).
26. Under subsection 270.7A(1), a marriage is forced if it is entered into without full and free consent because of the use of coercion, threat or deception, or an incapacity to understand the nature and effect of the marriage ceremony (for reasons such as age and mental capacity). Subsection 270.7A(4) provides that a person under 16 years of age is presumed, unless the contrary is proven, to be incapable of understanding the nature and effect of the marriage ceremony.
27. The offences capture forced marriages that occur in Australia, as well as those that occur overseas, where the offender is an Australian citizen or resident. The offences apply to legally recognised marriages, registered relationships and marriages that are void, invalid or not recognised by law for any reason, including those formed by purely cultural and religious ceremonies. Despite not intending to have any legal effect, cultural and religious marriages are regarded as binding and place children at increased risk of repeated sexual, physical and psychological abuse.
28. Vulnerable young women and girls are disproportionately affected by forced marriage, globally and domestically. Operational experience has shown that perpetrators of these crimes are often the victims' parents, close relatives, and religious or community leaders who are in a position to exert subtle and prolonged familial, religious and cultural pressure upon victims.
29. The intended effect of the existing rebuttable presumption in subsection 270.7A(4) was to make the consent of a child irrelevant. However, in practice it has equated a child's understanding of what marriage is with their consent to that marriage. Operational experience has shown that the majority of child victims have, on their own evidence, clearly demonstrated that they understood the nature and effect of the marriage ceremony, which is commonly expressed as resulting in an exclusive commitment for life, a sexual relationship, co-habitation and children. Paired with many victims' reluctance to give evidence against their own family or community members, the offences as currently drafted have made it difficult to prosecute forced marriage offences involving child victims.
30. The Bill repeals the rebuttable presumption and expands the definition of forced marriage in subsection 270.7A(1) to explicitly include all marriages involving children under 16 years. The age of 16 years is in line with the marriageable age provisions in Part II of the Marriage Act 1961 (Cth) (Marriage Act). Under the Marriage Act, a person is of marriageable age if the person has attained the age of 18 years, or where an Australian court order is in force that permits a person who has attained the age of 16 years but not 18 years to marry a person aged over 18 years in exceptional circumstances provided there is the required consent (usually parental).
31. By explicitly criminalising underage marriages, the Bill reduces the need to call evidence from vulnerable child victims and simplifies the prosecutorial burden of demonstrating a lack of full and free consent resulting from coercion, threat, deception or incapacity to understand the nature and effect of the marriage ceremony. The Bill is intended to further fulfil Australia's obligations under the relevant international treaty articles, for example the Convention on the Rights of the Child, relating to the protection of children. This ensures that appropriate protections are afforded to vulnerable children at risk of being forced to marry.
Schedule 6 - Restricting the defence to overseas child sex offences based on a valid and genuine marriage
32. The Bill also restricts the defence to overseas child sex offences based on a valid and genuine marriage.
33. Australian offenders are known to travel overseas to sexually abuse and exploit vulnerable children in foreign jurisdictions where criminal law and child protection frameworks are weak or non-existent, and their offending behaviour is less likely to be investigated by local authorities.
34. Division 272 of the Criminal Code criminalises sexual offences committed by Australians against children (under 16 years of age) outside Australia. It also criminalises sexual offences committed against young people (at least 16 years of age but under 18 years) overseas, where the Australian offender is in a position of trust or authority (such as a teacher, medical practitioner or employer).
35. Section 272.17 currently provides a defence to certain offences in Division 272 if, at the time the offence was committed, a valid and genuine marriage existed between the defendant and the child or young person. The defendant must prove the marriage was recognisable as valid under the law of the country where the marriage was solemnised or where the offence was committed or where the defendant resides, and that the marriage was genuine at the time it was entered into.
36. Globally, the minimum legal age of marriage varies widely, with some jurisdictions permitting the marriage of children as young as 10 years old. Many foreign jurisdictions also permit persons younger than the minimum age to be married by order of the court, including for religious reasons. In some countries, child marriages pursuant to customary law may be recognised as valid and genuine for the purposes of this defence.
37. People in positions of trust or authority over young people outside Australia are often entrusted to care for the welfare and best interests of those young people. The power imbalance in this relationship makes it inherently exploitative, resulting in long-term consequences and lengthy delays in reporting.
38. The Bill repeals section 272.17 to ensure the existence of a marriage between the defendant and a child under 16 years is no longer a valid defence to conduct that is otherwise criminal. The Bill substitutes section 272.17 with a narrower defence for people in positions of trust or authority, who engage in sexual activity with young people (at least 16 years but under 18 years) outside Australia, provided the defendant can prove the young person was at least 16 at the time the valid and genuine marriage was entered into. This will bring Australia's overseas child sex offences in line with Australia's broader efforts to combat child exploitation and forced marriage.
Schedule 7 - Expanding the meaning of child abuse material
39. The Bill also updates the terminology used for child sexual abuse offences in Commonwealth legislation. It does this to reflect the gravity of these crimes, the harm that is inflicted on the children involved, and shifts in national and international best practice.
40. The Criminal Code and other Commonwealth legislation currently distinguish between 'child abuse material' and 'child pornography material'. However, the term 'child pornography material' is no longer considered appropriate or accepted terminology. Attaching the term 'pornography' to this material is a barrier to conveying the seriousness and gravity of the offences, the inherently abusive nature of the material, and the harm faced by the children. Further, labelling content as 'child pornography material' may inadvertently legitimise that material by associating it with legal forms of (adult) pornography. The inference that 'pornography' is associated with consenting subjects participating in legal behaviour is entirely inappropriate where the behaviour depicted involves the abuse of children.
41. The shift away from 'child pornography' is reflected in the Australian Federal Police's standard communications regarding child sexual abuse cases, as well as materials developed by relevant non-government organisations. The importance of appropriate terminology is further highlighted by international conventions and guidelines recognised by Australia, including the United Nation's Commission on Crime Prevention and Criminal Justice 2019 resolution on Countering child sexual exploitation and sexual abuse online. In 2016, the Global Interagency Working Group released the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, which notes that terms like 'child pornography' are being increasingly criticised, including by victims and survivors of child sexual abuse. Representatives to the Global Interagency Working Group included international and regional non-government organisations such as the International Centre for Missing and Exploited Children, INTERPOL, Save the Children International, and the United Nations Committee on the Rights of the Child.
42. The Bill proposes to repeal references to 'child pornography material' and reconstitute the current definitions of 'child abuse material' and 'child pornography material' into a single definition of 'child abuse material'. Amendments to the terminology are also reflected in Schedule 2.
FINANCIAL IMPACT
43. There will be limited increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences. These costs will be absorbed.