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Thursday, 30 June 1994
Page: 2487


Senator SPINDLER (4.42 p.m.) —Mr Acting Deputy President, the Senate is discussing the Crimes (Child Sex Tourism) Amendment Bill 1994. The bill is before the Senate against the backdrop of the incidence of child prostitution in developing countries, which is increasing at an alarming rate. In India there may be as many as 400,000 child prostitutes; in the Philippines perhaps as many as 375,000; in Sri Lanka perhaps 20,000; in Taiwan perhaps 90,000; and in Thailand the estimates range from 200,000 to 800,000.

  The human consequences of these figures in terms of suffering, loss of childhood and infection with AIDS is appalling. As has been well publicised, Australian tourists have been prominent amongst those who have engaged in this terrible exploitation.

  Against that background, this bill is most welcome. No-one is saying that this legislation will put an end to child prostitution. The causes of child prostitution do not lend themselves to a quick legislative solution. Apart from the predatory sexual instincts of paedophile tourists, other factors exacerbate the problem: the extreme economic imbalance between north and south; poverty and chronic unemployment in countries like Sri Lanka, Thailand and the Philippines; political instability; the large number of paedophiles in local communities; lack of police action; and, it must be said, official complicity in child exploitation in those countries.

  Despite these hurdles the bill will, I believe, be effective in addressing the problem to a substantial extent. Firstly, it will cut the sex tourism industry off at its source by eliminating the demand for child prostitution amongst Western tourists—or at least reduce it. Secondly, the legislation will serve an important educative role. It will send a clear message to Australian paedophiles and those who would encourage or assist them in their activities that their actions will attract severe punishment.

  The Democrats recognise that prosecutions under the legislation will not be a straight forward exercise. Quite apart from the inherent difficulty involved in prosecuting cases involving allegations of child sexual abuse, there will be additional problems with prosecutions under this legislation. It will not be easy to obtain evidence against the paedophile. Australian police will be reliant on the cooperation of local police forces even when mutual assistant arrangements are in place.

  The presentation of the evidence of child witnesses will not be easy. Language and cultural difficulties will make the process traumatic, although the video link provisions presently in the bill are welcome to expedite these activities. It will not be possible to compel witnesses to attend to give evidence. The likelihood that the parents of the child will not be available, or will not make themselves available, to give evidence and the absence of birth registration procedures in many south-east Asian countries will require prosecuting authorities in Australia to be more energetic in gathering the medical and other evidence necessary to prove a child victim's age.

  Prosecutions that are more likely to succeed are those involving allegations against those in Australia of being knowingly concerned in or assisting others in the sexual abuse of children overseas. Travel agencies, tour operators, paedophile organisations disseminating information about child sex tours, Australians who provide facilities overseas in which acts of sexual exploitation take place, and importers and distributors of child pornography will all be readily susceptible to prosecution under this legislation.

  I welcome the fact that this legislation was referred to the House of Representatives Legal and Constitutional Affairs Committee. That committee has produced a very worthwhile report. I commend the chairman of that committee, Mr Daryl Melham, on the work that he and his committee put into producing that report within the very narrow time limits that were imposed. I personally certainly appreciated the opportunity to appear before that committee and to give evidence.

  I also welcome the constructive attitude that the Attorney-General, Mr Lavarch, has shown to the recommendations of the committee. The end result is a piece of legislation that I believe is workable and which at the same time will ensure that the rights of an accused person are given proper protection.

  When this bill was introduced into the House of Representatives I wrote to the Attorney-General indicating the intention of the Australian Democrats to move a number of amendments to the bill. The main thrust of those amendments was to ease the burden on child witnesses who may be brought to Australia by allowing them to give evidence by closed circuit television. Those amendments were accepted by the government, but in the meantime they seem to have disappeared from the bill.

  During the committee hearings those provisions were discussed. Of our amendments, those dealing with the separate representation of children in the context of making application for giving evidence by video link or closed circuit television attracted some criticism, which was withdrawn once the amendments were properly understood. Those amendments which applied state laws allowing the giving of evidence by closed circuit television attracted no adverse comment. Indeed, they were supported. Hence, I find their omission from the bill somewhat disappointing. I would like the minister to confirm that this oversight will be addressed in subsequent legislation if it becomes apparent that the Judiciary Act will not operate to pick up the relevant state law.

  We also had expressed concerns about the form of the proof of age provisions. The committee paid considerable attention to this question and the Australian Democrats are satisfied that the formulation that has been adopted strikes an appropriate balance.

  In several significant respects the government has chosen not to act on the recommendations of the committee. The Australian Democrats support the approach taken by the government where it has chosen not to follow the committee's recommendations. Only in one area of difference of opinion do I want to say anything as it concerns a topic that attracted some attention during the hearings of the committee, and it relates to the defence of belief as to age.

  In its report the committee recommended that the onus of proof in relation to the defence based on belief about age should not be on the accused person. As the bill stands, if the defendant wants to rely on the defence that he or she thought the child concerned was over the age of 16, then the onus was on the defendant to satisfy the jury of this fact on the balance of probabilities. The committee's recommendation would have the effect of requiring the prosecution to disprove such a belief beyond reasonable doubt.

  With all respect to the committee, this recommendation ignores the policy behind not just this particular piece of legislation but also those penal statutes that have as their object the proscription of sexual activity with children. As a society, we are opposed to the sexual exploitation of the young and expect adults to regulate their sexual behaviour by ensuring that they avoid such activity. In the context of the exploitation of child prostitutes, this social policy must be even more important.

  Its purpose is surely to say that if people travel abroad and pay for sexual services in a context notorious for the fact that many young people are involved, it is incumbent upon them to establish that their sexual partners are above the age of 16. Given that they have this responsibility it is surely reasonable to require the accused to bear the onus of proving such an issue. I should add that this approach is adopted in equivalent provisions in most Australian jurisdictions, and I support the approach taken by the government on this issue.

  Whilst I acknowledge that the minister has acted appropriately in not raising expectations too high about the number of prosecutions that are likely to be brought under this legislation, the Australian Democrats do not accept that this legislation should become a paper tiger. In correspondence with the minister I have repeated the demand made by organisations such as ECPAT that this legislation be backed by resources sufficient to ensure its effective enforcement.

  Those resources include: increasing the number of AFP officers in foreign countries to undertake the liaison work with the local police forces that will be entailed by this legislation; establishing a specialist unit within the AFP to investigate these offences with sufficient staffing and financial resources to be effective in its role—which means increasing the budgetary allocation to the AFP and not just rearranging the deck chairs after the law enforcement review; and increasing the funding to the DPP to allow it to effectively pursue the inevitably expensive prosecutions that will arise under this legislation.

  It also means: ensuring that staffing at points of entry into the country is sufficient to uncover evidence of paedophilia activity that may be carried into the country; and ensuring that video link technology is in place here and overseas for use in prosecutions brought under the legislation; increasing the level of Australia's assistance to foreign countries such as the Philippines, Thailand and Sri Lanka so that the circle of poverty that forces so many children into prostitution can be broken.

  It should also include: funding of an education program aimed at ensuring on a long-term basis that those who leave Australia are fully aware of the extraterritorial effect of this bill and the high penalties attaching to offences committed under it; and ensuring that those who travel overseas are made aware of the fact that involvement in the production of child pornography and its possession are criminal offences.

  In his second reading speech the minister suggested that the effect of this bill will be cost neutral. I do not accept that and many of the witnesses who gave evidence at the hearings, including representatives from the Australian Federal Police Association, did not accept that either. The AFPA gave an estimate of $70,000 to $90,000 just to bring a case to a committal hearing. So I again call on the minister to give a commitment on behalf of the government to properly funding the implementation of this bill.

  In conclusion, l want to pay a tribute to the ECPAT organisation for the tireless work it has done and is doing to bring world attention to the appalling problem of child prostitution and other forms of sexual abuse. As all honourable senators would be aware, ECPAT has been very active in lobbying the government to introduce this type of legislation and in lobbying all parliamentarians to ensure that the bill is passed. Its contribution to the committee hearings was also very valuable. The passion of its members for their cause is an inspiration. The exploited children of Asia have a resolute ally.

  It would be remiss of me not to mention that I have appreciated and have been the beneficiary of the assistance of Mr Ken Archer, who spent some months in my office on an executive development scheme seconded from the ACT DPP. His contribution to the work on this bill was of immense assistance to me and I have appreciated it.