Explanatory Memorandum
(Circulated by the authority of the Minister for Justice, the Hon Michael Keenan MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Protecting Minors Online) Bill 2017
1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.
Overview of the Bill
2. This Bill amends the Criminal Code Act 1995 (the Criminal Code) to create a new offence criminalising acts done using a carriage service to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16 (a child). The Bill protects children from internet predators by allowing intervention by law enforcement agencies prior to sexual activity taking place or other harm being done.
3. The Bill makes consequential amendments to ensure existing law enforcement powers are available to combat Commonwealth child sex-related offences. Schedule 2 will make consequential amendments to the Crimes Act 1914 (Crimes Act) and Telecommunications (Interception and Access) Act 1979 (TIA Act).
Human rights implications
4. The human rights engaged by the Bill are those set out in the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). The Bill promotes or engages the following human rights:
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- rights of the child:
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- the best interests of the child as a primary consideration
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- the right of a child to be heard in judicial proceedings
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- protection of the child from all forms of physical or mental violence, including sexual abuse
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- protection of the child from all forms of sexual exploitation and abuse
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- rights engaged by criminal offences and proceedings:
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- the right to an effective remedy
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- the right to freedom from arbitrary detention
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- right to presumption of innocence
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- minimum guarantees in criminal proceedings
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- right to protection against arbitrary and unlawful interferences with privacy, and
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- right to freedom of expression.
Rights of the Child
5. The Bill engages the rights of the child in the CRC by promoting those rights set out in Articles 3, 12(2), 19 and 34 of the CRC.
6. Article 3 of the CRC recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. The Bill promotes this right by protecting children from harm in person and online.
7. Article 12(2) of the CRC requires a child be provided the opportunity to be heard in any judicial proceeding affecting the child in a manner consistent with national procedural rules. The Bill promotes this right by ensuring child complainants are treated as vulnerable witnesses under Part IAD of the Crimes Act. Vulnerable witness protections include testimonial aids such as the ability to give evidence by means of closed-circuit television, video recording or video link, or the provision of an offence relating to the unauthorised publication of a witness' name or identifying characteristics. These measures will minimise the risk of additional trauma and promote the participation of child complainants in judicial proceedings for this offence.
8. Article 19 of the CRC requires legislative measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. Article 34 requires children be protected from all forms of sexual exploitation and sexual abuse, including the inducement or coercion of a child to engage in any unlawful sexual activity.
9. The Bill promotes the rights of the child to be protected from physical or mental violence, sexual exploitation and abuse. It increases the protection of children online from those who would do them harm. The Bill strengthens the ability of law enforcement to intervene during the planning or preparatory stage of child exploitation, prior to harm or sexual abuse occurring. The focus on prevention promotes the protection of children from harm or sexual activity before it has taken place.
Rights engaged by criminal offences and proceedings
(a)Right to an effective remedy - Article 2 of the ICCPR
10. The Bill promotes the right to an effective remedy set out in Article 2 of the ICCPR. In particular, the Bill improves the capacity of witnesses to give effective evidence. Schedule 2 of the Bill makes consequential amendments so that Part IAD of the Crimes Act - Protecting vulnerable persons - applies to the offence. These protections minimise the risk of additional trauma and promote the participation of child complainants in judicial proceedings for this offence.
(b) Right to security of the person and freedom from arbitrary detention - Article 9(1) of the ICCPR
11. The right to personal liberty set out in Article 9(1) of the ICCPR requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. In addition to having a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought.
12. The Bill engages the right to freedom from arbitrary detention under Article 9(1) by creating an offence for which a court may lawfully prescribe a period of imprisonment for a person found guilty of the offence.
13. The maximum penalty of 10 years imprisonment is necessary to ensure that the serious offence of engaging in conduct to prepare or plan to cause harm to, procure, or engage in sexual activity with a child is matched by commensurate punishment. The penalty is reasonable to achieve the legitimate objective of ensuring that the courts are able to hand down sentences to online predators that reflect the seriousness of their offending. The penalty is reasonable given that the penalties will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures as established by law. Maximum penalties are set to adequately deter and punish a worst case offence, including repeat offences, while supporting judicial discretion and independence. The penalty will only be applied by a court if the prosecution has proved the elements of the offence beyond reasonable doubt. Further, the penalty will apply only to offences committed at or after the commencement of the amendments.
14. There are clear and serious social and systemic harms associated with online predators engaging in conduct aimed at harming children. The penalty is proportionate in that it supports the courts' discretion when sentencing offenders. It is the Australian Government's responsibility to enshrine maximum penalties for Commonwealth offences in legislation, and the penalty is sufficiently high to allow courts to impose appropriate punishments for the most serious offences.
(c) Right to presumption of innocence - Article 14(2) of the ICCPR
15. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.
16. The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offence. The presumption in section 475.1B provides that if a physical element of the offence consists of a person using a carriage service to engage in particular conduct, and the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
17. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.
18. The Bill relies on the Commonwealth's telecommunications power under the Australian Constitution. Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence, or the defendant's culpability, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth than those that do not.
19. Given this purpose of the presumption, and that the offence is not unreasonable in the circumstances and maintains the rights of the defendant, the Bill does not violate the presumption of innocence.
(d) Minimum guarantees in criminal proceedings - Articles 14 and 15 of the ICCPR
20. Articles 14(2) to (7) and Article 15 of the ICCPR provide minimum guarantees which apply to criminal proceedings. Article 14 provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14 also contains a range of minimum guarantees in criminal proceedings.
21. The provisions of the Bill do not affect existing legislation relating to procedural fairness. The Bill engages the right to a fair trial and the right to minimum guarantees in criminal proceedings by the consequential amendment in Schedule 2 that includes the new offence in Part IAD of the Crimes Act. This part of the Crimes Act deals with protecting vulnerable persons in criminal proceedings.
22. Vulnerable witness protections may include testimonial aids such as the ability to give evidence by means of closed-circuit television, video recording or video link, or the provision of an offence relating to the unauthorised publication of a witness`s name or identifying characteristics. These protections ensure witnesses can present their testimony to the court, and minimise the risks of intimidation, additional trauma, fear for personal safety or public embarrassment. If a witness is unable to give reliable evidence, or is reluctant to give evidence at all, this may adversely affect the outcome of a trial.
23. The Bill serves the legitimate objective of improving the ability of victims to seek an effective remedy. These consequential amendments to the Crimes Act in Schedule 2 of the Bill also serve the objective of promoting the rights of the child.
Right to protection against arbitrary and unlawful interferences with privacy
24. Paragraph 1 of Article 17 of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence. Paragraph 2 of Article 17 of the ICCPR recognises the right of everyone to the protection of the law against such interference. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, for a reason consistent with the ICCPR, and reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case.
25. Consequential amendments in Schedule 2 of the Bill will include the new offence in the list of sexual offences against children to be considered a serious offence for the purposes of the TIA Act and will apply Part IE of the Crimes Act (Forfeiture of child pornography material and child abuse material) to the offence.
26. Consequential amendments categorise the new offence as a 'serious offence' under the TIA Act. The TIA Act sets out conditions that must be met before a law enforcement agency can intercept or access telecommunications for the purposes of investigating the new offence. Lawfully intercepted information or interception warrant information can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more. The TIA Act prohibits law enforcement agencies from intercepting telecommunications, or making historical or prospective authorisations to access stored communications, unless an appropriate warrant is in force. Requirements under the TIA Act ensure that interference with the privacy of any person or persons that may result from intercepting or accessing telecommunications data is one of a range of considerations taken into account when issuing a warrant. To the extent that the issuing of a warrant itself entails a limitation on the right to privacy that limitation is reasonable, necessary and proportionate.
27. Consequential amendments will include the new offence at 474.25C of the Criminal Code in the definition of Commonwealth child sex offence for the purposes of the Crimes Act. Part IE of the Crimes Act applies to Commonwealth child sex offences. Part IE contains a specific Commonwealth scheme for the forfeiture of child pornography and child abuse material. The scheme applies to an item that is either child pornography material or child abuse material, or a computer, data storage device or other electronic equipment that contains child abuse material or child pornography material. An item will become forfeitable if a law enforcement officer believes it was derived from, or used in connection with, the commission of a Commonwealth child sex offence.
28. In this case, the legitimate end is public safety, addressing crime and protecting the rights and freedoms of children. To the extent that the right to privacy is impinged, the interference corresponds to a pressing social need, that is, the need for law enforcement agencies to effectively investigate and prosecute crime.
Freedom of expression
29. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime) where such restrictions are provided by law and are necessary for attaining one of these purposes. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. Limitations on freedom of expression on the grounds of public order include limitations for the purpose of preventing crime. In order for the proposed laws to be considered a necessary restriction on freedom of expression on the grounds of public order, the restriction must be clearly defined.
30. The Bill engages the right to freedom of expression in Article 19 to the extent that it criminalises the use of a carriage service to perform acts preparatory to harming, procuring or engaging in sexual activity with a person under the age of 16, as this may have an impact on the use of carriage services to seek, receive and impart information.
31. The Bill aims to prevent criminal activity by targeting preparatory conduct for harming, procuring or engaging in sexual activity with a person under the age of 16. To the extent that the right to freedom of expression in Article 19 is restricted, these restrictions are provided by law and for the purpose of preventing online crimes against children.
32. The Bill also promotes the right to freedom of expression of children by further protecting their right to seek, receive and impart information using a carriage service, free from the threat of harm and sexual exploitation.
Summary
33. Any interference with human rights occasioned by this Bill is in pursuit of a legitimate aim - the prevention of harm and sexual exploitation of children. The Bill is compatible with human rights given it promotes the protection of human rights, specifically the rights of the child, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.