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Thursday, 30 June 1994
Page: 2480

Senator ROBERT RAY (Minister for Defence) (4.25 p.m.) —I table a revised explanatory memorandum and move:

  That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

  Leave granted.

  The speech read as follows

The principal aim of this legislation is to provide a real, and enforceable, deterrent to the sexual abuse of children outside Australia by Australian citizens and residents. It is unfortunate that a minority of Australian citizens and residents are now known internationally as major offenders in several Asian countries. They exploit the vulnerability of children in foreign countries where laws against child sexual abuse may not be as strict, or as consistently enforced, as in Australia. The Bill aims to ensure that cowardly crimes committed against children outside Australia, which are not prosecuted in the country in which they were committed, can be prosecuted effectively in Australia.

The Bill also focuses on the activities of those who promote, organise and profit from child sex tourism. Provided they operate from Australia, or have a relevant link with Australia, they, too, will be able to be prosecuted for their contribution to the abuse of foreign children.

Some may wonder why the Australian Parliament should enact laws to protect foreign children from sexual abuse, and ask why the foreign country should not protect its own children. It is true that the primary responsibility for protecting children from sexual exploitation rests, as it should, with the countries where the children are exploited. The Asian countries which are chiefly involved are indeed taking measures to do so, but are confronted by social and economic factors which make their task difficult. They welcome any assistance in curbing the trade in children's bodies that other governments can give. Some other countries have already enacted, or plan to enact, legislation similar to that which is now before you.

Apart from the fact that Australia is gaining an unenviable reputation in the world press on this issue, we also have international obligations to protect children, whatever their nationality. Australia ratified the Convention on the Rights of the Child on 17 December 1990, and this imposes an obligation to protect children, at both the national and the international level, from sexual exploitation and abuse. Australia played a key role in the development of the Convention on the Rights of the Child and the Australian Government is committed to pursuing the aims of that Convention. The Human Rights and Equal Opportunity Commissioner, Mr Brian Burdekin, has been asked to prepare a draft protocol to the Convention specifically addressing the problems of child prostitution and other forms of abuse and sexual exploitation of children.

As the Minister for Justice indicated in his address to the First World Congress on Family Law and Children's Rights in Sydney on 4 July 1993, it is clear from the recent World Conference on Human Rights in Vienna, that children's rights are high on the international agenda. That conference highlighted the need to develop effective and independent international machinery to ensure that abuses of children's rights are identified and that tangible measures are taken to remedy those abuses.

The Bill aims to achieve these ends by creating sexual offences, relating to conduct outside Australia, which will be punishable in Australia, and offences of encouraging or benefiting from child sex tourism, which may be committed in or out of Australia, and will be punishable in Australia provided there is a relevant link with this country. All these offences will have substantial penalties, ranging from 12 to 17 years imprisonment, or correspondingly high pecuniary penalties if a company is involved.

The Bill should send a clear message to child sex abusers and those who profit from their activities that the Government and the community condemn their behaviour and do not intend to tolerate it. The Bill has the support of all Australian jurisdictions through the Standing Committee of Attorneys-General. State and Territory jurisdictions not only support the Commonwealth measures, but will enact any necessary or desirable supplementary legislation to close any perceived gaps and to ensure that the measures are effective.

Some changes have been made to the Bill as a result of the recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs. The Government expresses its appreciation of that Committee's work and has adopted most of its recommendations. The major changes are, first, the collapsing of the standard and aggravated sexual offences into single offences against children under 16 years. That involves the amendment of the age of the child in proposed sections 50BA, 50BC, 50BE and 50BG to read `a person who is under 16' and the deletion of proposed sections 50BB, 50BD, 50BF and 50BH.

The Government agrees that a potential gap in the legislation could arise because of the probability that birth records in many of the countries where child sexual exploitation occurs may be incomplete. As the Committee is aware, the same problem arises in relation to sexual offences under State legislation upon which the Bill's provisions are partly based, but is insignificant because of Australia's universal birth records which establish age precisely. As recommended, the maximum penalties are retained for the merged offences, and proposed section 50FE has been inserted providing that, in sentencing a person convicted of an offence under the Part, the court must take the age and maturity of the complainant into account. These considerations are additional to the matters which must be taken into account under subsection 16A(2) of the Crimes Act.

The second major change is the removal of the belief in the child's consent requirement form the defences. That requirement was included out of a concern to protect persons under the age of 16 (from conduct by Australians) where the perpetrator either does not believe the person is under the age of 16 or does not believe the person consents to the conduct. The absence of a consent requirement could allow an individual to escape liability merely because he or she believed the person was over 16, irrespective of the fact that the evidence disclosed that the child had been raped or was forced to commit indecent acts. It was not a novel requirement. Consent is a requirement of the reasonable mistake defence available in respect of similar offences under some State laws where the elements of the defence are consent and mistaken belief in age and reasonableness. However, the Government has decided to give weight to the concerns expressed by the Committee and remove consent as an element of the defences. The Government will monitor the operation of the provisions with a view to making appropriate amendments in the future, if required.

The Bill creates prescribed sexual offences committed overseas against children under the age of 16. The prescribed sexual offences are:

(1)   engaging in sexual intercourse with a child, maximum penalty, 17 years imprisonment;

(2)   inducing children to have sexual intercourse with others in the person's presence, 17 years imprisonment;

(3)  committing an act of indecency on a child, 12 years imprisonment ;

(4)  committing an act of indecency in the presence of a child with the intention of deriving gratification from the child's presence, 12 years imprisonment ;

(5)  submitting to an act of indecency committed by a child, 12 years imprisonment;

(6)  submitting to an act of indecency committed by another person in the presence of a child with the intention of deriving gratification from the child's presence, 12 years imprisonment;

(7)  inducing children to commit, submit to or participate in, or be present while a third person commits,acts of indecency in the presence of the person, but which are not committed by or on him or her, 12 years imprisonment

(8)  inducing children to be present while others engage in sexual intercourse in the presence of the person, 12 years imprisonment ; and,

(9)  engaging in sexual intercourse in the presence of a child with the intention of deriving gratification from the child's presence, 12 years imprisonment.

There are further offences of encouraging or benefiting from child sex tourism, carrying a maximum penalty of 17 years imprisonment.

Mr President, there are some aspects of the Bill that I would like to draw to your attention. The intention has been to strike the correct balance between the need to minimise the enforcement difficulties that always arise where overseas evidence is required, and which are exacerbated when child witnesses are involved, and the need to ensure that the rights of the defendant receive a similar degree of protection as would apply if the offence had been committed in Australia.

The legislation must be more than mere window-dressing. The Government is concerned to see that it is practically enforceable, as it must be if it is to have the deterrent effect for which we have aimed. However, while the Government is determined to achieve this, it will not do so by compromising the defendant's right to the protection of the usual rules of evidence and procedure—to the traditional rights and privileges and defences which would have applied if the conduct alleged had occurred within an Australian jurisdiction and not in a foreign country. There will inevitably be some differences in the procedural and evidentiary framework of these offences from that which applies to similar State and Territory offences. These are needed to accommodate the international aspect of the enforcement process, but there are none which do not already occur in Australia in an age of increasing internationalisation of many offences, and none which will operate unfairly to the defendant.

I will now outline the features of the Bill which may call for further explanation, particularly as this subject matter, sexual offences, is unusual in a Commonwealth Bill.

First, the age of consent is the factor which creates the difference between the freedom to conduct one's personal life as one wishes and the commission of the criminal offence of child sexual abuse. On this point such offences are offences of strict liability, in this Bill and in all Australian States and Territories, whether code or common law jurisdictions.

Within Australia, the age of consent varies among jurisdictions, and overseas the range of variability is even greater. The Convention on the Rights of the Child sets the age at 18 years. However, most Australian jurisdictions have chosen 16 as the appropriate age, and that is the age which I consider appropriate in the present circumstances.

Two statutory defences are provided in relation to the sexual offences.

The first is a defence of mistaken belief in the age of the child, that is, a belief that the child was 16 years or over at the time of the offence. The belief test is a subjective one, based on what the person actually believed, though in determining whether the person actually held that belief the jury is entitled to take into account whether the claimed belief is reasonable in the circumstances.

The second defence is that of a valid and genuine marriage between the accused and the alleged victim. This defence has a further element: the requirement that the defendant satisfy the jury, on the balance of probabilities, that a formally valid marriage is also genuine.

This requirement is to avoid deliberate abuse of the availability of the marriage defence to defeat the legislation. Marriages celebrated in foreign countries, where one of the parties is under 18 years, are generally not recognisable in Australia. Nevertheless, it is quite possible that an Australian citizen or resident who came to Australia from a foreign country, or whose parents did so, might return to that country to marry according to its customs. The government has no intention, in multicultural Australia, of rendering any such person vulnerable to conviction for a criminal offence on returning to Australia. That would be an entirely different matter from simply not recognising the marriage. But in Australia, the formal validity of a marriage is proved, prima facie, by production of a marriage certificate. It would not be difficult, particularly in countries where poverty and corruption are widespread, for paedophiles to obtain marriage certificates which would preclude their conviction of child sexual abuse offences, if the marriage defence did not place an onus on them to satisfy the jury, on the balance of probabilities, of the genuineness of the marriage. Courts have some experience of dealing with a requirement for proof of genuineness of a marriage because it features in immigration law, which could similarly be circumvented by non-genuine marriages.

The defences provided in the Bill place both the evidential and the persuasive onus of proof on the defendant to satisfy the jury on the balance of probabilities that a defence is made out, are contrary to the principle that the prosecution must prove every element of the offence beyond reasonable doubt. However, the offences are proved by the prosecution satisfying the jury, beyond a reasonable doubt, that the accused committed the prohibited acts with a child of the relevant age. The child's marital status or the belief as to the age of the child are not elements of the offence. The defences are true defences, providing a means of exculpation for the accused, and the matters required to be proved, to the civil standard, are matters peculiarly within the knowledge of the accused. Therefore, it is appropriate for the onus of proving them to rest on him or her, rather than that the prosecution should be forced to undertake the difficult task of proving negatives beyond a reasonable doubt.

The Government is unable to accept the Committee's criticism that the defences depart unreasonably from `traditional safeguards' or `throws aside 200 years of criminal justice with fairness for the accused'. These extreme statements appear to be largely based on a misunderstanding of the law in Australia as it relates to sexual offences against children and the available defences. Under the law of sexual offences involving children across the Australian jurisdictions, it is for the prosecution to prove beyond reasonable doubt the elements of the offence, but a defence is allowed as to the accused's belief (reasonable belief in some jurisdictions) which is a matter for the accused to establish on the balance of probabilities.

The Bill follows this approach, and the government holds to the view that the general structure of the offences and defences in the Bill is appropriate. The proposed section is in accordance with judicial authority and with equivalent State legislation; see, for example, R v Douglas [1985] VR 721 and Heath, Indictable Offences in Victoria, 1992, at p.351 and the authorities cited therein. As both the former and the current Presidents of the Australian Law Reform Commission pointed out to the Committee, it is within normal standards to require the defence to establish belief in age on the balance of probabilities (a point also made by the Law Faculty of the University of New South Wales and by the Attorney-General of South Australia in their submissions to the Committee).

Further, unlike its counterparts under state legislation, proposed section 50CA currently only requires a subjective belief to be proven on the balance of probabilities. It would be extremely difficult for the prosecution to negate beyond a reasonable doubt an assertion of what was in the mind of the accused at the time of the alleged offence, especially when what may be asserted need not be reasonable or rational and when intoxication can be used to assist a defence of mistaken belief. As Justice Elizabeth Evatt noted knowledge of age—a matter peculiarly within the knowledge of the accused—is not an element of the offences which must be proved by the prosecution beyond reasonable doubt. I note that the Senate Standing Committee on the Scrutiny of Bills also had no difficulty with the proposed section.

Let me now move to the offences of encouraging or benefiting from child sex tourism. These offences are required because the usual ancillary offences of aiding and abetting, counselling, procuring and being knowingly concerned in the commission of a substantive offence would not suffice to catch the promoter, organiser or advertiser of a child sex tour. That is because those offences depend on the commission of a particular offence to which the promoter, organiser or advertiser would have to be directly and knowingly linked. This would not usually be possible when he or she is remote in time and place from any specific child sexual offence. Possibly the ancillary offence of incitement could be committed, since it does not require the actual commission of a particular, or, indeed, any, offence, but the penalty for incitement is only 12 months imprisonment.

The Government considers that the intentional acts of encouraging or benefiting from the sexual abuse of defenceless children in foreign countries, whether or not any specific offence with a particular child is contemplated, must be prosecutable, and must be punishable by a substantial penalty, in this case a maximum of 17 years imprisonment, similar to the more serious primary offences. This is an indictable offence and will attract the confiscation and forfeiture provisions of the Proceeds of Crime Act 1987, which should provide a powerful deterrent to any business enterprises which have been profiting from knowingly facilitating child sex tours.

There remain two more matters that I wish to mention to you. These relate to the conduct of the trial and arise from the difficulties that are associated with prosecuting offences committed outside Australia. I am determined that the legislation will provide every opportunity, consistent with fairness, for evidence to be made available to the jury, despite the fact that in many cases it will be evidence from a foreign country, where records may not be kept in the same comprehensive manner as in Australia and where the ability of investigators and the court to use coercive powers to obtain evidence and to compel the attendance of witnesses is severely curtailed.

The first of these is a provision which, where the age of a child cannot be determined by the usual means, allows the jury to estimate the age of the child, taking into account whatever evidence is available, such as the evidence of relatives and the child's appearance and demeanour. This provision has been amended in accordance with the recommendation of the House of Representatives Committee. It is not without precedent. It is based on section 411 of the Crimes Act 1958 of Victoria. I would expect it to have the most relevance, not in borderline cases where the defence of a mistaken belief in the age of the child would be expected to prevail, but in cases where the child was obviously well within the prohibited range. It would serve the purpose of preventing an accused from evading punishment completely because of the lack of documentary evidence of age.

The second is the provision for the use of video link so that overseas evidence can be presented to a court in Australia. Video link has already been used effectively in major trials in Australia, including one of the war crimes trials.

The proposed sections as originally introduced, required the judge, in certain prescribed circumstances, to direct that the technology be used, provided its use was not contrary to the interests of justice. This was intended to overcome the costs and difficulties for both the defence and the prosecution in securing the attendance of witnesses from overseas or using material taken overseas in deposition form. They were also intended to reduce the trauma of the victim of appearing in court. Proposed subsection 50EB(2) was intended to reflect a clear intention that, in the absence of compelling reasons to the contrary, the defence and the prosecution should be allowed to seek the use of video link technology where the circumstances listed in proposed paragraphs 50EB(1)(a),(b) and (c) were met.

The present provision adopts the Committee's recommendation by combining the sections into one provision, removing the mandatory formulation and providing that any direction for the use of the technology in a particular case must be consistent with the interests of justice.

The Government considers that these provisions strike the correct balance. It is increasingly the trend in Australian jurisdictions to spare children who have been victims of sexual abuse the trauma and the ordeal of appearing in the witness box in the intimidating atmosphere of the court. Even in Australia, it is frequently the case that the jury views the child's examination and cross-examina2CHAPtion by means of video. The fact that the child itself is in a distant country rather than a nearby room may pose some problems for the court and for counsel that might not arise when the evidence is taken in close proximity to the court room, but none, I believe that cannot be overcome. My expectation is that the use of satellite and communications technology, where that is available, can be used to approximate conditions comparable to those which can already occur in some Australian jurisdictions. If, in a particular case, the judge forms the view that the use of video link would be contrary to the interests of justice, he or she is not compelled to direct its use.

Finally, the Government wishes to recognise a concern expressed in relation to the practical operation of the proposed legislation raised by Senator Spindler. The Senator's concern relates to the possibility that laws of States and Territories providing for the taking of children's evidence by closed circuit television, in order to spare them unnecessary trauma, may not apply to proceedings under the proposed legislation The Government is seeking legal advice on whether any of the relevant State laws would not be picked up and applied to the proceedings by the operation of section 68 or section 79 of the Judiciary Act 1903. If the advice indicates that the relevant provisions are not applied in all Australian jurisdictions, the Government will make the necessary amendments to the Part as soon as a suitable legislative vehicle is available.

It is not anticipated that the Bill will occasion any additional costs to the Government. The costs of any prosecutions will come from the budgetary allocations for the Australian Federal Police and the Office of the Director of Public Prosecutions, which will conduct investigations and prosecutions under the proposed legislation.

I believe that the proposed legislation achieves the challenging task of ensuring both enforceability and fairness in the prosecution process for offences committed overseas which are known to be difficult to prosecute even when committed in Australia.

I commend the Bill to the Senate.

Senator ROBERT RAY —I understand that agreement has been reached between all parties that the bill now proceed through all its stages forthwith.