As a member of the Christian Democratic Party I give a brief commentary on the Crimes Amendment (Sexual Offences) Bill 2008. This bill arises from proposals for reform relating to child pornography recommended in “Penalties Relating to Sexual Assault Offences in New South Wales”, a report by the New South Wales Sentencing Council chaired by Supreme Court Justice James Wood.

I congratulate the Attorney on introducing this bill. In its report, the Sentencing Council made a total of 39 recommendations with respect to sexual penalties and offences. The bill implements the majority of those recommendations. The remaining recommendations have been referred to two high-level working groups, one to examine issues in the latest child pornography offences and the other to consider a wider review of sexual offences in the Crimes Act 1900. I will not go through all the objectives of the bill because previous speakers have done so. However, I comment on the bill itself.

The amendments proposed in the bill ensure that New South Wales has the strongest possible legislative protection available to protect children from exploitation. The past decade has seen development and exponential growth in the use of electronic, computer-based communication information sharing via the Internet, particularly across the Western world. There is now growing evidence that the Internet is the new medium through which some commonly recognised forms of child mistreatment, sexual and emotional abuse may be pursued.

Why has the Internet become a popular means of recruiting children for sexual purposes? It provides easy access to children and a reduced risk to offenders of being identified. It provides an opportunity for offenders to remain anonymous or to misrepresent their identity and intent, leading a child to believe he or she is talking with another child, a trusted friend or a caring parent figure. An offender may lurk in Internet chat rooms, gathering information until the opportunity arises to move the conversation with the child to a private chat room or to a mobile phone and then ultimately to arrange a real life meeting.

The bill also makes important changes to child pornography laws. Issues concerning pornography have been prominent in political and media debates in recent times, particularly this year as a result of the Henson photographs. The proposed removal of the defence of genuine artistic purpose is the most significant far-reaching reform to child pornography laws recommended in the Sentencing Council report.

The recommendation comes in the wake of the controversy surrounding the exhibition of photographs by Bill Henson featuring a naked 13-year-old girl. The upshot of the controversy caused by the Henson photographs was that the exhibition opened with entry by invitation only.

The age-old question of art versus pornography was raised in this context, and the use of children for artistic and other purposes in advertising, modelling and the like. Chris Goddard, the Director of Child Abuse Research Australia from Monash University, and 30 other signatories said in an open letter that their main concern was the exploitation of children and their inability to give consent. For child psychologist Steve Biddle, one of the signatories of the open letter, it was not about pornography; it was not even about paedophilia but about the rights of children. Politically, Henson’s work attracted considerable comment and criticism. Former New South Wales Premier Morris Iemma said:

As a father of four, I find it offensive and disgusting.

While Leader of the Opposition, Barry O’Farrell, said:

Sexualisation of children under the guise of art is totally unacceptable.

The Prime Minister, Kevin Rudd, described the Henson exhibition as “absolutely revolting”. On the art side of the argument, the censorship of the arts was the central issue at stake in the Henson controversy. Actress Cate Blanchett and the New South Wales Museum of Contemporary Art Director, Elizabeth McGregor, were among the co-signatories to an open letter urging the Prime Minister to rethink his public comments. Under section 91H (1) “child pornography” is defined as

Child pornography means material that depicts or describes [or appears to depict or describe], in a manner that would in all the circumstances, cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:

(a) engaged in sexual activity, or

(b) in a sexual context, or

(c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

The offences of the production, dissemination and possession of child pornography are set out in section 91H of the Crimes Act 1900. In 2004 these offences were made indictable offences, able to be dealt with in the District Court by a jury. Maximum penalties were increased from two years to 50 years for the possession of child pornography and from five years to 10 years for the production or dissemination of child pornography. This penalty reflects the seriousness of the crime. The offence, production or dissemination of child pornography is provided for under section 91H (2), while the possession offence is provided for under section 91H (3). The offence simply states, “A person who produces, disseminates or possesses child pornography is guilty of an offence.”

Although it is difficult to gauge the extent of child pornography on the Internet, I am advised that an estimated 14 million pornographic sites are available, some of which carry an estimated one million pornographic images of children. The rate of discovery of activity by law enforcement agencies is one indication of the extent of child pornography today. The rate of conviction for online offences against children in the United States is about 1,000 people each year and rising, with known activity being substantially higher than actual arrest.

Recent publicity is being given to the trial of seven men in the United Kingdom who are members of the Wonderland Club, an Internet organisation of paedophiles operating in Europe, Australia and North America. Reports of this group demonstrate the nature of the online paedophile: membership of the Wonderland Club was granted in exchange for providing 10,000 new child pornographic pictures to the whole group. During investigation into the Wonderland Club law enforcement officers seized 750,000 pornographic images and 1,800 pornographic videos of children, with 1,236 different children being identified in the images and the videos seized.

In our jurisdiction Operation Auxin was the Australian police operation conducted in September 2004. It followed the receipt the previous March of a referral from Operation Falcon, the FBI investigation into online child pornography. A total of 191 arrests were made in Australia, 28 of which involved people living in New South Wales. Police seized one million child exploitation images during Operation Centurion and more than 70 people across Australia, 23 from New South Wales, were arrested on charges of child pornography.

Moreover, media attention is being drawn to high-profile cases including child pornography, including that of the former New South Wales Deputy Crown Prosecutor Patrick Power, who was convicted in May 2007 of downloading more than five hours of explicit Internet material, for which he served six months of a 15-month sentence in Long Bay jail. His term of imprisonment was spent in complete isolation in a special protection unit, away from the inmates Power had helped place behind bars in his work as a prosecutor.

A further high-profile case is that of former New South Wales Minister for Aboriginal Affairs Milton Orkopoulos, who in May 2008 was sentenced to a minimum of nine years imprisonment for child sex and drug offences. He had pleaded guilty to two charges of possession of child pornography.

Although advances in digital technology have enabled the production of “morphed” images—that is, the manipulation of images of adults in sexually explicit poses into sexually explicit images of children—digital technology has also made it easier and safer for amateur collectors to use children for the production of pornography and to electronically transmit their material. Images can also be manipulated to make innocent photographs of children appear in a pornographic context, or to make a person in a sexual context appear to be a child.

Some may argue that such images do not include a real victim, and therefore should not be captured by this legislation. However, the vital point is to ensure that all pornographic images, real or pseudo, are covered by the legislation. One of the reasons offenders do this is to make it more difficult to identify the children and the perpetrators, and therefore more difficult to apprehend the perpetrators and rescue the victims. This allows the abuse to continue.

The bill also makes important changes to the Crimes (Sentencing Procedure) Act 1999 to stop sentencing courts taking into account good reputation, good character, and lack of a criminal history as mitigating circumstances for child sex offenders when they have used these principles to gain people’s trust to commit their crimes.

Other amendments to the bill include increasing the penalty for causing sexual servitude in circumstances of aggravation from 19 to 20 years imprisonment; increasing the penalty for sexual assaults that are committed by breaking and entering into the victim’s house above the current 14-year maximum; creating new offences of voyeurism and aggravated voyeurism; creating new aggravated offences of filming for an indecent purpose and installing a device to facilitate filming for an indecent purpose, with a maximum penalty of five years; and creating a new offence of inciting one or more persons to commit a sexual offence, with penalties commensurate to the offence the person was incited to commit.

The Crimes Amendment (Sexual Offences) Bill ensures that New South Wales has the strongest assault laws and that children in this State and our community are adequately protected from sexual predators. The laws not only serve to protect children from abuse but also act as a denunciation and a general deterrent.

I strongly support the bill, I thank the Attorney General for introducing it, and I congratulate the Government on implementing legislation to protect children from abuse and to place the interests of sexual assault victims at the centre of the criminal justice system. I commend the bill to the House.

Thursday, 4th December, 2008, 2:28 pm | Articles