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Monday, 30 August 2004
Page: 26620


Senator LUDWIG (1:02 PM) —I rise to speak on the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004. It is an omnibus bill which updates a number of offences originally enacted in 1989 relating to misuse of telecommunications services and moves them from the Crimes Act to the Criminal Code. The bill also creates a number of new offences on a range of topics. Those topics include offences of using a carriage service, including the Internet, to access, transmit or publish child pornography or child abuse material and of procuring or grooming a person under 16 years of age for sexual activity. These complement existing offences in place at the state and territory level. Also included are offences of using a carriage service, including the Internet, to make threats to kill or cause serious harm, to perpetrate a hoax relating to explosive or dangerous substances or to engage in menacing, harassing or offensive behaviour.

The bill also includes offences to prevent the rebirthing of stolen mobile phones and the copying of mobile phone SIM cards. It also deals with offences of making hoax or vexatious calls to emergency service numbers. It includes offences of contaminating goods, threatening to contaminate goods or perpetrating a contamination hoax. There are also offences of dishonestly obtaining or dealing in personal financial information, which are targeted at credit card skimming and Internet banking fraud. These implement model legislation developed jointly by the Commonwealth, the states and the territories. Clearly, it is an omnibus bill which covers a range of issues and will provide a move to the Criminal Code. The bill also makes a number of miscellaneous amendments to criminal law statutes, dealing with matters including alternative verdicts, knowledge of criminal law, proof of narcotics offences and international assistance in criminal matters.

It is worth touching on a couple of background issues in relation to this bill. As was noted in the House of Representatives, the bill appears to have had a long period of gestation within this government if the public statements of numerous ministers, past and present, are anything to go by. On 4 April 2003—almost a year and a half ago—the Minister for Justice and Customs, Senator Ellison, issued a media release titled `New offences to clamp down on Internet child pornography'. That release made mention of the offences covering child pornography and material that incites suicide. Then on 20 August 2003—just over a year ago—Senator Ellison and the then minister for communications, Senator Alston, issued a joint media release titled `Using internet for offensive and menacing purposes to be outlawed'. This release mentioned offences dealing with offensive, menacing or harassing Internet content. It also reannounced the child pornography offences and mentioned the offences dealing with the rebirthing of stolen mobile phones.

Then there was silence for quite a while. But on 14 March 2004 Senator Ellison and the then minister for communications, Mr Daryl Williams, issued a joint media release titled `Tough laws to target Internet child sex crime', reannouncing the legislation and releasing an exposure draft. On 19 March 2004 Senator Ellison issued a media release titled `Agreement reached on new national laws to outlaw credit card skimming', which announced the offences concerning fraudulent dealings with personal financial information. What we have is a start date of almost a year and a half ago and a collection and a reissuing of matters in the announcements by the minister, an old minister and a newer one. It finally culminated on 25 June 2004, when Senator Ellison and Mr Williams, the then communications minister, issued another media release, `Internet child sex abuse offences Bill tabled', to coincide with the introduction of an earlier bill in the Senate which bears the same name as the current bill—minus the words `No. 2'—and which we understand the government will no longer be proceeding with. All of these announcements have culminated in the current bill, which was introduced into the House on 4 August.

The bill was referred to the Senate committee following the introduction of the bill into the House of Representatives. The Senate Legal and Constitutional Legislation Committee inquired into the bill. The time allotted for the inquiry was only short—a total of six days—but nevertheless the committee had an opportunity to put a number of issues raised in a submission from Electronic Frontiers and a Bills Digest prepared by the Parliamentary Library to the Attorney-General's Department and the Australian Federal Police for response. In considering the bill, the committee was mindful of the fact that it incorporated changes made in response to submissions received on an exposure draft released earlier in the year.

It is worth mentioning two issues that were discussed by the committee, namely offensive use of a carriage service and defences in respect of child pornography and abuse material. I mention those particular issues because they are the subject of proposed amendments by the Democrats. In relation to the first matter—offensive use of a carriage service—the committee noted that the indicative criteria of offensiveness are drawn from the national classification scheme and would be for a jury to apply based on a criminal standard of proof.

The opposition has carefully examined this amendment and weighed a number of factors. The amendment updates the existing offence in section 85ZE of the Crimes Act. The existing offence applies an objective standard of offensiveness to the use of all carriage services except the Internet, to which a subjective standard applies. An objective standard, under section 471.1.2 of the Criminal Code, also applies to the use of postal and similar services. The origin of this distinction is the Broadcasting Services Amendment (Online Services) Act 1999. Its rationale is not entirely clear from the parliamentary debates, but it seems to have been designed to emphasise that offensive Internet content would be dealt with primarily by the online content scheme rather than the Crimes Act. While the case for applying a different standard of regulation to the Internet understandably commanded more support when the Internet was younger, the community is now more conscious of the dangers posed by some Internet content and has a legitimate expectation of an equivalent degree of protection to that applying to other communications media. On that basis, and considering that a criminal standard of proof applies, the opposition is prepared to support this aspect of the bill and will not be supporting the Democrats' amendment, which maintains the status quo.

In relation to the second matter—defences in respect of child pornography and child abuse material—the committee heard evidence from the Attorney-General's Department about the drafting of this aspect of the bill. The department told the committee it had attempted to craft a general defence relating to research into paedophilia and child abuse but received public feedback on the exposure draft which suggested that the general defence would be susceptible to misuse. The department also gave evidence that it consulted with the Australian Institute of Criminology on the prevalence of genuine research of this kind and determined that a mechanism involving approval by the minister was workable. The department also drew the committee's attention to comparable approval processes in other legislation for research into prohibited drugs. On the basis of the explanation provided to the committee, the opposition is now satisfied that the proposed approval mechanism is not inappropriate. Therefore, the opposition will not support the Democrat amendment.

In conclusion, the opposition provides its support for the passage of this bill. The overwhelming majority of this bill is not controversial, although it did have quite a substantive gestation period, and it makes improvements to the criminal law. With that explanation on those two more controversial issues in relation to the two Democrat amendments, the opposition supports the passage of this bill.