House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for for Home Affairs, the Honourable Brendan O'Connor MP)

General outline and financial impact statement

General outline

This Bill amends the Australian Crime Commission Act 2002 , the Crimes Act 1914 , the Criminal Code Act 1995 , the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 .

The sexual exploitation of children is a devastating and widespread form of criminal activity. Responsibility for combating child sexual exploitation is shared between the Commonwealth, States and Territories. Traditionally, the States and Territories have been responsible for child sex-related offences occurring domestically (eg within each jurisdiction), while the Commonwealth has enacted child sex-related offences occurring across or outside Australian jurisdictions (eg where the Internet is involved or where the offence is committed overseas). This reflects areas of Commonwealth legislative power under the Constitution.

The Commonwealth's regime includes offences criminalising child sex tourism (sexual offences against children overseas) and using the Internet or postal service for child sex-related activity. These offences are generally directed at persons under 16 years of age. This is consistent with the age of consent in the majority of Australian States and Territories. The Government believes that setting the age of consent at 16 years of age strikes the appropriate balance between the need to protect vulnerable persons from sexual exploitation, and the need to allow for sexual autonomy.

This Bill will ensure comprehensive coverage of sexual offences against children, including reflecting best practice approaches domestically and internationally. The Bill:

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strengthens the existing child sex tourism offence regime

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introduces new offences for dealing in child pornography and child abuse material overseas

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introduces new offences for using a postal service for child sex-related activity

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enhances the coverage of offences for using a carriage service for sexual activity with a child or for child pornography or child abuse material

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makes minor consequential amendments to ensure existing law enforcement powers are available to combat Commonwealth child sex-related offences, and

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introduces a new scheme to provide for the forfeiture of child pornography and child abuse material and items containing such material.

These measures are further described below.

Purpose

The purpose of Schedule 1 is to make amendments relating to sexual offences against children, including child sex offences outside Australia, child sex offences involving postal or similar services, or carriage services and to make minor consequential amendments.

Part 1 of Schedule 1 will repeal the existing child sex tourism offence regime in the Crimes Act and move the provisions to the Criminal Code. It will also strengthen the child sex tourism offence regime by introducing new offences for steps preceding actual sexual activity with a child, improving the operation of existing offences for sexual intercourse or other sexual activity with a child and by introducing new sexual activity offences directed at aggravated conduct, persistent sexual abuse and sexual activity with a young person (between 16 and 18 years of age) where the defendant is in a position of trust or authority in relation to the young person.

Part 1 of Schedule 1 will also introduce new offences for Australians dealing in child pornography and child abuse material overseas. Commonwealth, State and Territory offences criminalise dealings in child pornography and child abuse material within Australia and through the Internet. However, there are currently no offences applying extraterritorially to dealings in such material by Australians overseas. Accordingly, Part 1 will introduce new offences for possessing, controlling, producing, distributing or obtaining child pornography or child abuse material outside Australia.

The purpose of the amendments in Part 1 is to ensure that all behaviour relating to sexual offences against children by Australians within Australia (covered by State and Territory offences) is also criminalised when committed by Australians overseas.

Part 2 of Schedule 1 will introduce new offences for using a postal or similar service for child sex-related activity. While there is a general offence of using a postal service to menace, harass or cause offence (carrying a maximum penalty of two years imprisonment), there are currently no specific offences for using a postal service for child sex-related activity. This had lead to inconsistencies in how child sex-related activity using a carriage service and comparable activity using a postal service, is treated. Accordingly, Part 2 will introduce a comprehensive suite of offences that criminalise the use of a postal service, mirroring existing, and proposed, carriage service offences and penalties.

Part 2 of Schedule 1 will also enhance the coverage of offences for using a carriage service (eg the Internet) for child pornography or child abuse material or for sexual activity with children. In 2005, new offences for using a carriage service for child pornography or child abuse material, or for grooming or procuring a child for sexual activity, were inserted into the Criminal Code. Part 2 will extend and improve the operation of these existing offences. It will also introduce new offences for using a carriage service for indecent communications with a child or for sexual activity with a child.

Part 3 of Schedule 1 will make minor consequential amendments to ensure existing law enforcement powers are available to combat all Commonwealth child sex-related offences. Part 3 will make minor consequential amendments to the Australian Crime Commission Act 2002 , the Crimes Act, the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 . These amendments will ensure that law enforcement agencies are able to use existing powers applicable to existing offences, for the investigation of the proposed new offences.

The purpose of Schedule 2 is to introduce a comprehensive scheme for the forfeiture of child pornography or child abuse material, or articles containing material, derived from or used in connection with the commission of a Commonwealth child sex offence. Currently, there is no specific Commonwealth scheme for dealing with child pornography or child abuse material that is seized or otherwise obtained by law enforcement in the course of investigating offences.

Material or articles will be able to be forfeited through a notice scheme administered by the Australian Federal Police and, where appropriate, a State or Territory police force. Disputed forfeiture matters will be dealt with by a court. A court would also be able to determine forfeiture applications brought by the Commonwealth Director of Public Prosecutions, either following a conviction or an acquittal, or in purely civil proceedings.

Financial impact statement

The amendments in this Bill have no financial impact on Government revenue.

Acronyms