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Tuesday, 20 June 2017
Page: 4397


Senator KAKOSCHKE-MOORE (South Australia) (18:24): by leave—I move the Nick Xenophon Team amendments (1) and (2) on sheet 8158 together:

(1) Clause 2, page 2 (table item 2), omit "Schedule 1", substitute "Schedules 1 and 2".

(2) Page 7 (after line 27), at the end of the Bill, add:

Schedule 2—Cybersex trafficking

Part 1—Sexual offences

Criminal Code Act 1995

1 Paragraph 272.8(2)(b) of the Criminal Code

After "presence of the person", insert "(including presence by a means of communication that allows the person to see or hear the child)".

2 Paragraph 272.9(2)(b) of the Criminal Code

After "presence of the person", insert "(including presence by a means of communication that allows the person to see or hear the child)".

3 Section 272.10 of the Criminal Code (heading)

Repeal the heading, substitute:

272.10 Aggravated offence—mental impairment, under care of defendant, young child, multiple persons, torture or payment

4Paragraph 272.10(1)(b) of the Criminal Code

Repeal the paragraph, substitute:

(b) any of the following applies:

(i) at the time the person commits the underlying offence, the child has a mental impairment;

(ii) at the time the person commits the underlying offence, the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person;

(iii) at the time the person commits the underlying offence, the child is, or reasonably appears to be, under 10 years old;

(iv) more than one person (other than the child) is present (including by a means of communication that allows a person to see or hear the child) at the time the person commits the underlying offence;

(v) at the time the person commits the underlying offence, an act of torture, cruelty or degrading treatment is done to the child;

(vi) the person pays a fee or reward, or provides another benefit, in relation to the underlying offence.

5 Paragraph 272.12(2)(b) of the Criminal Code

After "presence of the person", insert "(including presence by a means of communication that allows the person to see or hear the young person)".

6 Paragraph 272.13(2)(b) of the Criminal Code

After "presence of the person", insert "(including presence by a means of communication that allows the person to see or hear the young person)".

7 Paragraph 474.26(3)(e) of the Criminal Code

After "in the presence", insert "(including by a means of communication that allows a person to see or hear another person)".

8 Paragraph 474.27(3)(f) of the Criminal Code

After "in the presence", insert "(including by a means of communication that allows a person to see or hear another person)".

Part 2—Internet service providers and internet content hosts

Criminal Code Act 1995

9Section 474.25 of the Criminal Code

Before "A person", insert "(1)".

10 Paragraph 474.25(c) of the Criminal Code

Omit "refer details of the material", substitute "provide the information mentioned in subsection (2)".

11 Section 474.25 of the Criminal Code (penalty)

Omit "100", substitute "800".

12 At the end of section 474.25 of the Criminal Code

Add:

(2) The information is:

(a) details of the material; and

(b) the address, telephone number and email address of the internet service provider or internet content host; and

(c) the following information, to the extent it is in the possession or control of the internet service provider or internet content host:

(i) information relating to the identity of any person who appears to have accessed the material, including but not limited to email address, internet protocol address, URL, user name or any other identifying information;

(ii) information relating to when and how the material was uploaded, transmitted, received or accessed;

(iii) information relating to when and how the material was reported to or discovered by the internet service provider or internet content host;

(iv) information relating to the location of any person who appears to have uploaded, transmitted, received or accessed the material, including but not limited to:

(A) internet protocol address; and

(B) billing address; and

(C) any geographic information provided to the internet service provider or internet content host by the person;

(v) any image of the material;

(vi) if the material was in a communication, the communication, including but not limited to:

(A) any data or information regarding the transmission of the communication; and

(B) any images, data, or other digital files contained in, or attached to, the communication.

(3) Nothing in this section limits any requirement applying to an internet service provider or internet content host under any law of the Commonwealth, a State or a Territory.

In Australian households and workplaces paedophiles are paying to direct the live sexual abuse of children located anywhere in the world. I will let that sink in for a moment: Australians are paying for children in developing countries such as the Philippines to be sexually and physically abused for their gratification while they sit in their homes watching and directing the abuse. Sadly, this despicable act is not being committed by just a few. The crime is known as cybersex trafficking—a form of trafficking that is transnational and involves offenders in Australia who commission the abuse of children in developing countries on a pay-per-view basis.

Cybersex trafficking is much more common than people may think. According to the International Justice Mission, the annual number of tips to the National Centre for Missing and Exploited Children rose from 4,560 in 1998 to 76,584 in 2006. In 2015, that figure ballooned to 4.4 million. Australian law enforcement agencies are well aware of the prevalence of this crime and are doing what they can to combat it. They face significant hurdles given that this crime is transnational and they must work with international authorities and laws.

The unintended consequence of the bill before us was highlighted in The Sydney Morning Herald on 3 June 2017 in a piece by Lindsay Murdoch entitled 'Children as young as two rescued from Philippines cybersex abuse dens'. The article states:

Detective-Inspector Rouse said more cases of child cybersex are being uncovered because of the increasing capabilities of law enforcement agencies, including in tracing financial transactions.

"We are detecting it more because we are looking for it more," he said, adding that Australians have been known to be involved in the online sexual exploitation of children for almost a decade.

Asked whether the involvement of Australians was growing, Detective-Inspector Rouse said "it is already quite an established market".

The International Justice Mission (IJM) helped rescue 201 children who were forced to participate in online sexual exploitation between 2011 to May 2017.

More than half of the victims were under 12 and 70 per cent involved parents, relatives or close family friends of the victims.

I pause again to let that sink in: parents are sexually exploiting their children for the gratification of Australians. The article continues:

Evelyn Pingul, IJM's director of communications in the Philippines, said the alarm needs to be sounded that online sexual exploitation of children has become an epidemic in the Philippines.

"We need the police to continue rescuing these children, we need the prosecution to continue convicting more sick criminals," she said.

IJM's National Director Samson Inocencio called for law enforcement agencies to be given more resources "to fight this horrific crime against children".

One such resource is the ability of Australian law to capture this type of behaviour so that it can be successfully prosecuted and offenders properly analysed. Not only is IJM carrying out life-saving work on the ground in South-East Asia; IJM director of corporate and legal, Kimberly Randle, has also identify the gap in the law which exists here. Despite the number of instances of cybersex trafficking in Australia, the Criminal Code does not adequately address the specific nature of this crime. Prosecutions of cybersex trafficking occur under sections 474.26, 474.27, 272.8 and 272.9 of the Criminal Code Act 1995. According to I JM, sentences for these offences have tended to be significantly lower than hands-on offences and do not currently reflect the fact that the sexual exploitation of the victim is being conducted in real time. The offences of sexual intercourse or activity with a child outside Australia were intended to capture Australians travelling overseas and engaging in sexual intercourse in person. In the case of cybersex trafficking, the physical abuse inflicted on children occurs overseas but is commissioned, directed and paid for by a perpetrator in Australia. That is why I have moved an amendment to these sections of the code which will make it abundantly clear that a person committing an offence under these sections does so when they are out in the presence of the child by means of communication that allows the person to see or hear the child. In other words, committing the offence virtually should make them no less culpable.

It is important to note that in two recent cases of cyber sex trafficking the defendants pleaded guilty. Had they pleaded not guilty, and the Criminal Code in its current form been tested in its ability to capture their online pay-per-view crimes, then they may have gotten away with their dreadful acts. In the much-publicised case of Bryan Beattie it has been reported that he was charged with cyber sex trafficking, but as this does not exist, what he did plead guilty to was 21 counts of causing a child under 16 to have sexual intercourse outside Australia in the presence of himself, as well as other charges. The offences occurred between 2012 and 2014 and involved his paying amounts ranging from $12 to $540 to watch 17 children being sexually assaulted in the Philippines via Skype. These children were between the ages of eight and 15. He also gave instructions on the type of abuse he wanted to see. Beattie was sentenced in March 2017 to a maximum of 10 years imprisonment, but he will be eligible for parole in February 2021.

Kyle Dawson pleaded guilty to offences of procuring a child to engage in sexual activity outside Australia as well as child abuse material offences. He paid approximately $60 to watch the abuse of children in the Philippines via Skype. His victims were girls aged about six, 10 and 12 and a boy who was about eight. He recorded the sessions to view at a later date and possibly to share. His defence counsel said he had an addiction to child sexual abuse material. The AFP, who arrested Dawson, examined his computer, were able to trace the location from where the live streaming was taking place and provided the information to police in the Philippines. IJM assisted in the Philippines in arranging a sting operation where the offender was captured. The offender was the aunt of some of the victims. The total sentence was five years of imprisonment with a two year non-parole period.

In another recent case Queenslander Stephen James Sheriff started sending money to the mother of two girls, the youngest aged 10, residing in the Philippines. The mother sent sexually explicit images to Sheriff, and he was convicted of soliciting and accessing child exploitative material. He was sentenced to three years imprisonment but was ordered to be released forthwith upon paying a $500 fine and being of good behaviour for three years. One has to wonder how that is a deterrent.

I have been told of cases involving babies, multiple children present at one time who are forced to abuse each other, and other situations that can only be considered torture. It is for this reason that I will move, through my amendment, to expand the types of aggravating factors in section 272.10. The new factors that will be considered aggravating factors include where the child is, or reasonably appears to be, under 10 years of age. This is designed to capture offences committed against very young children, such as those who are three or four, quite clearly under the age of 10, because it recognises it may be difficult for law enforcement agencies to obtain birth certificates to confirm the exact age of a victim.

The aggravated offences will also include where more than one person is watching the abuse being committed against the child. This recognises that often paedophile networks are involved in the abuse of children. The aggravating factors will also include where an act of torture, cruelty or degrading treatment is done to the child while the underlying offence is being committed. This is necessary, because I have heard of cases involving babies having hot wax dripped on them in the course of the offence. Where a person pays a fee or reward for the abuse to be perpetrated against the child, this will also be considered an aggravating factor. Not all abuse against a child is paid for, but this amendment recognises that, where a fee or reward is paid, profit is essentially being derived as a result of a child being abused.

I will also move amendments which relate to the obligation of internet service providers and content hosts to report to the AFP if they become aware that the service provided can be used to access child exploitation material and pornography. Currently the maximum penalty for this offence is equivalent to $18,000. As it currently stands the offence does not specify particular information required to be reported, such as IP addresses or personal details of the subscriber. Accordingly, the proposed amendments to sections 474.25 include the specific information to be provided to the AFP and an increase in the penalty units for noncompliance with their request. It is the case that cyber sex criminals are utilising the infrastructure of telcos to commit their crimes. I believe it is therefore incumbent upon—and even a social duty for—those telcos to ensure that they do everything in their power to assist the AFP in tracking, identifying and building a case, through the online footprint captured by the ISPs, against people using their service to offend.

The amendments will seek clarity for ISPs about the type of information they need to provide and, for avoidance of any doubt, about how vital the provision of this information to the AFP is; the penalty for noncompliance has increased. There is no excuse for allowing this activity to go on under our noses. Our law enforcement agencies should be armed with everything they need in order to do their job without the hardship of a Criminal Code that has not kept up with the online environment for ISPs who may not see this as a priority.

In conclusion, my amendments plug a gap in the Commonwealth Criminal Code that is expected to be exploited even further once passports of registered sex offenders are stripped. While the government's bill to stop registered child sex offenders from travelling overseas to commit despicable crimes is supported by the NXT, the unintended consequences of the increase of exploitation crimes being committed from Australian lounge rooms instead, as I have just described, should be dealt with now. The fact that the abuse is happening virtually should be no barrier to a predator being charged and prosecuted, yet the law as it stands does not make it clear that a person need only be in the virtual presence of a child. The crime might be virtual, but the children are being sexually abused in the real world. And in our world, I believe it is our duty as lawmakers to ensure that Australian laws adequately protect children no matter where in the world they live. Thank you, and I commend the amendments to the Senate.