On behalf of Family First I speak on the Crimes Amendment (Child Pornography and Abuse Material) Bill. The object of the bill is to amend the Crimes Act 1900 to change the law as it relates to child pornography so that the defence relating to material produced for child protection, scientific, medical, legal, artistic, or other public benefit purposes will no longer be available, and the law is generally more consistent with Commonwealth offences relating to child pornography.
The bill also amends the Criminal Procedure Act 1986 to provide for the use of random sample evidence in proceedings for a child abuse material offence. It also seeks to amend the Criminal Procedure Act to extend to a witness in sexual offence proceedings the same protection as those afforded to a complainant in the proceedings in cases where it is alleged that the accused person has committed a sexual offence against the Crimes Amendment (Child Pornography and Abuse Material) Bill 2010 witness that is not the subject of the proceedings concerned.
In its 2008 report, “Penalties relating to Sexual Assault Offences in New South Wales”, the New South Wales Sentencing Council recommended that artistic purposes be removed as a defence to child pornography charges. In addition, the Sentencing Council recommended the establishment of a Child Pornography Working Party to evaluate and report on these issues.
In late 2008 the Government established its working party and appointed Judge Peter Berman, SC, as its chair. The working party included representatives across a broad range of government departments and interested parties.
The working party was asked to consider a number of issues that had arisen in the prosecution of child pornography offences, and in particular how to remove the artistic purposes defence from child pornography offences in the Crimes Act 1900 without infringing upon the rights of journalists and artists to depict valid situations involving children.
Under the recommendations, artistic merit can no longer be used as a defence for the use of images of children deemed to be pornographic. If the recommendations of the working party become law, any person producing, distributing or possessing such material could still argue artistic merit, but once the material is ruled to be pornographic the defence would lapse. The New South Wales Attorney General, the Hon. John Hatzistergos, said:
The working party’s report suggests that once such material has been found to be unlawfully pornographic, whether or not it is intended to be art is irrelevant. Instead, the report recommends adopting Commonwealth provisions, which require that once a court has considered arguments that certain material is art and reached the determination that it is nevertheless unlawfully pornographic, no further defence of artistic merit is available.
The definition of child pornography was recently broadened by the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009. Child pornography is now legislatively defined as:
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 who is (or appears to be) a child:
(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).
In addition, a new section was inserted that specifies any material that contains or displays an image of a person that has been altered or manipulated so that the person appears to be a child. During the second reading speech on the bill, the Attorney General explained the reasoning behind the further broadening of the definition when he said:
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 However, the Government makes no apologies for ensuring that all child pornographic images, whether real or pseudo, are covered by this legislation
Furthermore, it is important to reduce the amount of this abhorrent material available to anyone with access to a computer.
I commend the Attorney General for explaining that reasoning in such a way. I support the recommendations of the Child Pornography Working Party, given that this is a huge community concern for families and that children must be protected from such material. The working party recommended, “material that is otherwise offensive because of the way in which it depicts children should not be protected because its creator claims an overriding artistic purpose for it”.
The working party was of the opinion that the defence of artistic merit led to the impression that material that would otherwise constitute child pornography could be acceptable if the material was produced whilst acting for a genuine artistic purpose. The working party also recommended that in defining child pornography the legislation provide a list of factors that must be taken into account in determining whether material is offensive, and that the defences be amended to mirror existing Commonwealth legislation.
The bill now removes the stand-alone defence of artistic merit and, in its place, reworks the definition of child abuse material to include a list of factors that must be taken into account when determining whether material is offensive, which includes, amongst others, the existence of any artistic merit. The bill abolishes the artistic merit defence to a charge of producing, possessing or disseminating child pornography.
This corrects a major defect in the law that has allowed material depicting children in a manner that is offensive to reasonable persons to be openly circulated on the grounds of its alleged artistic merit. The change will make a very clear statement that would be endorsed by New South Wales families: Art is not an excuse for child pornography.
The bill also allows for random sample evidence in circumstances in which the quantity and gravity of child pornography makes it undesirable to adduce to the court in its entirety. The random sample evidence limits the exposure of those associated with the proceedings to viewing unnecessary amounts of child pornography but still allows them to understand a representative sample of the material.
The bill also extends certain protections currently afforded to complainants in sexual offence proceedings to witnesses in the proceedings who also allege that the accused person has committed a sexual offence against him or her.
I ask the Attorney General to consider taking the opportunity presented by the bill to improve the law on child pornography by amending the definition of a child for the purpose of these offences from “a person who is under the age of 16 years” to “a person who is under the age of 18 years”. There are several reasons to make such a change.
First is consistency with other offences in the Crimes Act 1900. While the general age of consent for engaging in consensual sex is 16, there are several sexual and other offences for which a child is defined as a person under the age of 18 years. This includes child prostitution, section 91C; sexual intercourse with a child under special care, section 73; recruiting a child to be involved in a criminal activity, section 351A; persistent sexual abuse of a child, section 66EA; and aggravated sexual servitude, sections 80C and 80D.
Each of those offences rightly recognises that a child is in special need of protection by the law until the age of 18. Child pornography should be considered to be one of those offences for which all children up to the age of 18 are in need of protection by the law. It is one thing for a child aged 16 or 17 to consent to sex; it is another thing for offensive pictures of a 16- or 17-year-old child to be taken in a sexual context and circulated. Such pictures may remain permanently available on the Internet. The bill would then bring New South Wales laws on child pornography into substantial agreement with Commonwealth law.
As pointed out by the Minister when introducing the bill, this substantial agreement would facilitate law enforcement, as offences involving computers and carrier services may overlap the Commonwealth and State jurisdictions. It is important that the same material be considered as child pornography in both jurisdictions. However, the Commonwealth offences treat any person under 18 as a child.
Therefore, I recommend that the Attorney General raise the age in New South Wales from 16 to 18 years. The bill provides a defence to an offence of child pornography if the material has been classified other than as “refused classification” under the National Classification Scheme. The definition of a child for the purpose of the National Classification Scheme is a person under 18. I believe this bill would be greatly improved if the age were lifted from 16 to 18 years.
In conclusion, Family First believes that children have a right to innocence. They have a right to grow up without any pressure of being sexually exploited in any way. It is fundamentally for this reason that I support the Crimes Amendment (Child Pornography and Abuse Material) Bill and I commend it to the House.