2015-09-18
I rise this evening to speak in the debate on the Crimes Amendment (Child Pornography and Other Matters) Bill 2015. The Greens will be voting in favour of this bill. We have a responsibility in this place to act in the best interests of children. It is in the best interests of children that child pornography is criminalised and that adults who create and use child pornography are prevented, where possible, from doing so.
The internet has enabled the proliferation of child pornography. In the United States alone it is an online business that generates revenues of $3 billion per year. The exploitation of children for the sexual gratification of adults — mostly adult men — is what is at the core of the international criminal business of child pornography. Children who are sexually abused in the creation of child pornography very often suffer long-lasting consequences. Nobody needs to be convinced of that. It is obvious that police and other law enforcement bodies must continue to prosecute people who abuse and assault children in this way and to prevent them from doing so where possible, but it is equally necessary to tackle the 'demand' side of this crime — and it is the demand side that this bill is aimed at.
This bill increases the maximum penalty for possession of child pornography from 5 to 10 years imprisonment. The Greens support this aspect of the bill because a maximum penalty of 10 years imprisonment more appropriately reflects the gravity of the offence. It is extremely important, however, that we keep our eye on the main objective here, which is to stop, as far as possible, adults from committing offences relating to child pornography. We in this place should allow the courts to make whatever order is most likely, on the best evidence available, to ensure that each individual who comes before them will be prevented from further offending. We are pleased that the government has avoided the temptation to attempt to legislate minimum or baseline prison sentences. Sentencing is a matter for the courts because each sentence will depend on the facts of each individual case that comes before it.
In summary, the Greens believe that a court should have the discretion to sentence an offender who has been found guilty of possessing child pornography to a maximum term of 10 years imprisonment if the court believes that that is warranted in the circumstances. That more appropriately reflects the gravity of the offence, so we support clause 4 of this bill. But the Greens also support the discretion of a particular magistrate or judge who, in a particular case with particular facts before him or her, considers it more appropriate to impose a non-custodial penalty — a penalty that is designed, for instance, to prevent the person from committing the same crime in the future.
As to the rest of the bill, there are three new offences in clause 6. The Greens support the criminalisation of administering a child pornography website, and our advice is that the clause has appropriate defences and safeguards. We support criminalising the act of encouraging the use of a website to deal with child pornography, and we support criminalising a person assisting another person to avoid apprehension in relation to any of the five child pornography offences.
Clause 4 also inserts a new section that allows prosecutors to rely in court on a random sample of child pornography images instead of the entire cache that might be on a person's hard drive. This section is clearly designed to relieve the court — and indeed everyone involved in the investigation, prosecution and defence of child pornography charges — from being subjected to thousands and thousands of images.
Some cases do indeed involve thousands of images. Viewing these images can be very distressing for obvious reasons, so we can well understand the impetus behind this provision in the bill. On the other hand, we have been made aware of some people's concerns that prosecutors will have an interest in selecting a non-random sample of the worst of the worst images to exaggerate the gravity of the total cache. Given that an accused is able to challenge this random sample of evidence, we should be aware of the possibility of unintended consequences here — of unintentionally dragging out people's exposure to an enormous quantity of very disturbing images.
We are also aware of concerns regarding clause 9. Clause 9 allows for a warrant to be issued to authorise a police officer to direct another person — for example, an IT professional — to help the officer to access data that might be hidden or protected by, for instance, a password. While we are aware of the concerns about this clause, we are also satisfied by the minister's response to those concerns — that is, if a person has locked electronic child pornography inside a computer through encryption, that person should not be able to prevent a police investigation or prosecution just because the pornography cannot be accessed without an electronic key.
Clause 14 restricts an accused person from inspecting any evidence that is in the form of child pornography. While this potentially goes to the issue of an accused person's right to a fair trial, the Greens are satisfied that the clause puts appropriate safeguards in place. The accused person's lawyer would not be restricted from inspecting the evidence, and in any case an accused person can apply for a court order allowing him to inspect the evidence where the court decides it is appropriate.
There are a few things this bill does not do. It does not, for instance, create a separate offence of accessing child pornography. There is some legal argument about whether accessing a website without also saving an image onto one's computer, for instance, is enough to constitute possession. The question has been decided in different ways around the world, and while Professor Jonathan Clough of Monash University argues that to access child pornography online can plausibly come within the definition of possession, in a recent paper he also recommended the creation of a separate offence of accessing child pornography to save any confusion.
The bill also does not address some of the outstanding recommendations of the Victorian Law Reform Commission for the improvement of the sex offender registration scheme. That may be outside the immediate scope of the current bill, but we believe those recommendations, especially those which would make registration discretionary rather than mandatory, should be considered sooner rather than later.
Further, the bill does not provide for professional debriefing for criminal defence lawyers who have to view pornographic material involving children. Liberty Victoria has raised with us a very real concern that while Victoria Police has professional networks for this kind of debriefing, criminal defence lawyers do not — and it must be said that many of the defence lawyers in this area work for Victoria Legal Aid and community legal centres and are on quite modest incomes. The issue of debriefing for professionals may not require a legislative response, but we believe it is an important issue to raise at this time. We urge the government to provide a government-funded professional support service for defence lawyers in this regard.
In short, the Greens are pleased to support this bill. We are obviously pleased to support any measures that involve a commitment to protecting the most vulnerable members of our community, which are our children. Therefore we will be supporting the bill.