Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

Second Reading

[12.34 p.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Deputy Speaker, the primary purpose of this bill is to amend the Criminal Code to create 'child exploitation material' offences and new offences intended to prevent the procuring and grooming of children for sexual exploitation. The bill also amends the 'child abuse product' provisions in the Classification (Publications, Films and Computer Games) Enforcement Act 1995.

Child exploitation material is material that describes or depicts the sexual or physical abuse of children under 18. This would include, for example, child pornography. This abhorrent material can reinforce a paedophile's perception that paedophilia is normal, and can be shown to children as part of a process known as 'grooming' for future abuse.

The bill confirms the Tasmanian Government's tough approach to child sexual offences and the exploitation of children. The purpose of the amendments is to reduce and, as far as possible, eliminate the possession, production and distribution of child exploitation material.

Consistent with the recent amendments made to the Classification Act, the age threshold in the definition of child exploitation material is 18, ensuring Tasmania's compliance with the International Labour Organisation Convention 182. That convention requires the prohibition of the use, procuring or offering of a child under 18 for production of pornography or pornographic performances.

Recent arrests across the country as a result of Operation Auxin have revealed the extent of the child pornography industry. The Internet has increased the volume and accessibility of child pornography material. According to a recent article in the Australian Financial Review , the FBI has reported a 2000 per cent increase in the number of child pornography images on the Internet since 1996.

Mr Deputy Speaker, the child exploitation material offences proposed in this bill have been drafted with reference to a set of principles for nationally consistent child pornography legislation. These principles have been developed by the Standing Committee of Attorneys-General, commonly referred to as SCAG.

Operation Auxin highlighted the need for nationally consistent child pornography laws, and therefore discussion regarding the adequacy of the existing offences and investigative powers is ongoing in various national forums, including SCAG. This means that the Tasmanian provisions, including those provided in this bill, may require further legislative amendment in due course. Notwithstanding this, it was considered important to move expeditiously to reinforce existing laws.

Given the serious criminal nature of the conduct involved, it is appropriate that child exploitation material offences be inserted into the Criminal Code. This means that the code's standard maximum penalty of 21 years imprisonment will apply to these offences, which is a significant increase from the current maximum penalties contained in the Classification Act. The bill also introduces a more comprehensive regime of offences, which will facilitate the detection and prosecution of offenders.

The insertion of the child exploitation material offences in the Criminal Code will not derogate from the liability of an offender for a more substantive offence relating to their conduct. For example, a person who takes indecent photographs of a 10-year-old child as part of a photo shoot for a child pornography magazine will not only be involving a child in the making of child exploitation material under the new offences, but will also be committing an offence under existing section 125B - indecent act with or directed towards a young person under 17. The new offences are intended to complement, not replace, existing offences. Where it can be established that a more serious offence has occurred, that offence should be charged.

Mr Deputy Speaker, the bill makes it a crime to involve a person under the age of 18 in the production of child exploitation material and makes it a crime to produce, distribute, possess and intentionally access child exploitation material.

The bill takes a tough stance in relation to the knowledge element of these offences. The prosecution must establish that the accused person knew, or ought to have known, that the material to which the offence relates is child exploitation material. This requirement means that an accused cannot escape liability simply by asserting that they did not know the material was child exploitation material. It adds an objective element to the offence.

The new offence of intentionally accessing child exploitation material will ensure that those who intentionally view child exploitation material on the Internet, without downloading the images onto their hard drive or disk, will not escape prosecution.

It could be argued that where material is merely accessed, it is not in the accused person's possession. However, a trail of temporary Internet files and other records on the accused person's computer may make it clear that they have accessed child exploitation material on a regular basis. It is likely that this would be enough to establish intent to access child exploitation material.

Importantly, the requirement to establish intent to access, will act as a safeguard to prevent people who inadvertently or mistakenly access child exploitation material on the Internet, from being prosecuted.

Consistent with the national principles developed by SCAG, the bill contains the following defences. It is a defence to prove that the material was classified other than RC (refused classification), by the Commonwealth Office of Film and Literature Classification Board. This recognises the role of the Classification Board in classifying material and refusing classification of child exploitation material as RC.

If the material is a film, computer game or publication that has not been previously classified, an accused person relying on the classification defence will have to bear the costs of applying to the Classification Board for classification.

A second defence is available where it can be proven that the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or public benefit purpose, and the conduct was reasonable for that purpose. In determining whether the defence is available, regard will need to be had to the circumstances in which the material was produced, used or intended to be used. This defence would cover, for example, news or current affairs programs reporting images of children injured in a war. It would also cover medical texts, if that material has not been classified, and people who report cases of child abuse to the authorities.

The third and fourth defences apply to police officers and Commonwealth classification officers who are acting in the course of their official duties.

The fifth defence is inserted at section 130E(2), in recognition that the age of consent in this State is 17, while the child exploitation material offences have an age threshold of 18. It is also consistent with the similar age differential defence contained in section 124 of the Criminal Code.

Section 124 provides that a young person will not be prosecuted where there is an age gap of no more than 5 years between them and their sexual partner, so long as the younger child is at least 15 years of age. The defence also applies where the younger child is aged from 12 to 14 years provided the age difference is no more than three years.

The purpose of section 130E(2) is to ensure that young persons of similar age, who make a private record of consensual sexual activity, will not be prosecuted for certain child exploitation material offences. It would also apply where the material depicts lawful consensual activity between the accused and a 17 year old, and where the material is made for private purposes only.

However, if either party were to distribute the material they would be guilty of an offence. Similarly, if another party came into possession of the material they could also be charged with possession of that material.

The defence highlights that the primary purpose of the child exploitation material offences is the prevention of exploitation of children by predatory adults.

A final defence is available where the material came into a person's possession unsolicited and the person, as soon as he or she became aware that it was child exploitation material, took reasonable steps to dispose of it. A prime example of where this defence would apply is where a person receives unsolicited or spam e-mail containing child exploitation material, and he or she deletes it as soon as they realise what it is. The defence applies equally to unsolicited hard copy materials.

Mr Deputy Speaker, the bill inserts a forfeiture provision which permits a court to order the forfeiture of any child exploitation material and anything else used to commit the crime, such as a computer. It also gives the court a discretion to order the forfeiture of the offending material where a conviction has not occurred. This discretion could be exercised, for example, where the fact that the material is child exploitation material is proven, or not in dispute, but where the prosecution has failed to establish that the accused was knowingly in possession of the material.

Mr Deputy Speaker, proposed section 130G provides the Supreme Court with a specific discretion to exclude all non-essential persons from the courtroom, if and when child exploitation material is on display. This section highlights the desirability of ensuring that the number of people able to view such material, should be strictly limited to those performing a legitimate function in the court at the time.

As I have noted, the 'child abuse product' offences contained in the Classification Act will also be retained, in order to allow cases which are considered to be at the less serious end of the scale, to be prosecuted before a magistrate.

I will highlight some of the more notable changes to that act. Firstly, the bill replaces the term 'child abuse product' with the term 'child exploitation material'. The maximum penalty for the offence of possession has been increased from one to two years' imprisonment, and the maximum penalties for the more serious offences, such as making or distributing child exploitation material, have been increased from two years to three years' imprisonment.

New offences of distributing, intentionally accessing or attempting to access child exploitation material, have been inserted in the act to mirror the Criminal Code offences.

The defences inserted into the Classification Act are largely the same as those contained in the Criminal Code. In addition, it is a defence to prove that the defendant had reasonable grounds to believe that the material was not child exploitation material. Therefore, consistent with the knowledge element contained in the code offences, a defendant cannot escape liability by simply asserting that they did not know the material was child exploitation material. There must be reasonable grounds for this belief.

Proposed new sections 125C and 125D of the Criminal Code, deal with the procuring and grooming of young persons under 17 for sexual purposes. While the age threshold for child exploitation material offences has been set at 18 years in order to meet international obligations, the age threshold for proposed new sections 125C and 125D is 17 years. These new provisions will sit alongside the current sexual offences against young persons, such as sections 124, 125A and 125B, and therefore need to have the same age threshold consistent with the age of consent.

Proposed section 125C makes it a crime to procure unlawful sexual intercourse or indecent acts to be engaged in, with a young person under 17 years. The provision targets those who procure young persons for sexual exploitation by third parties.

A defence has been inserted to ensure that a person will only be charged under section 125C where the act they have procured is actually a crime under section 124 or 125B. It is also a defence to prove that the accused believed on reasonable grounds that young person was at least 17 years old.

The primary purpose of section 125D is to target those who seek to groom and procure children for sexual purposes through Internet chat rooms or via e-mail. The provision is broad enough, however, to include communications made any means, including by ordinary mail and other forms of electronic communication, such as SMS messages.

'Grooming' is the term used for the process that paedophiles use to prepare children for future abuse. For example, paedophiles may show pornographic or indecent material to children in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.

Section 125D makes it a crime to make a communication with intent to procure a young person under the age of 17 years (or a person the accused believes is under 17 years) to engage in an unlawful sexual act. 'Unlawful sexual act' is defined as an act that would, if committed in relation to a person under 17 years, constitute an offence under section 124, 125B, 126, 127, 127A, 133 or 185. The prosecution must prove beyond reasonable doubt that the accused actually intended to procure a young person under the age of 17 years to engage in an unlawful sexual act.

Section 125D also makes it a crime to make a communication with intent to expose, without legitimate reason, a young person under the age of 17 years (or a person the accused believes is under 17) to indecent material. The courts are well practiced at applying the standards of ordinary people in determining what is indecent, in the criminal law context. The provision is modelled on a similar offence in the Queensland Criminal Code, including the use of the phrase 'without legitimate reason'. It will be a question of fact in each case for the court to determine whether in all the circumstances, the material was sent without legitimate reason.

Section 125D paves the way for a standard investigation technique that will be crucial in enforcing these proposed offences in Tasmania. That is, it will enable offenders who are detected through covert police operations to be prosecuted. For example, a police officer may assume the identity of a fictitious child, may interact with potential predatory adults over the Internet, and arrest a predatory adult before they have an opportunity to sexually abuse any real children that they may be 'grooming'. This type of investigation technique was recently upheld in the Queensland Court of Appeal.

Section 125D provides a defence to ensure that young persons communicating with each other will not be prosecuted under this section. This is consistent with the equivalent Queensland and Commonwealth offences which are restricted to adult offenders.

Clearly, in this area of Internet crimes it is very important to emphasise the need for parents to exercise proper parental control over their children's access to the Internet. If proper controls can be imposed in the family unit, the opportunity for paedophiles to attempt to exert their influence would be greatly restricted.

Mr Deputy Speaker, the last amendments that I wish to note are the amendments to sections 129 and 169 of the Criminal Code. Section 129(c) currently creates the offence administering a drug to procure sexual intercourse. Section 169 creates the general offence of administering a drug or stupefying thing to facilitate an offence. The bill amends section 169 to clarify that it is a crime to administer or cause another person to take any drug, alcohol or other thing, with intent to stupefy or overpower that person in order to facilitate the commission of an offence . This is broad enough to capture drink spiking with intent to enable, for example, the sexual assault or robbery of a person.

The balance of the proposals contained in the bill are routine amendments which refine or update legislation, and are largely procedural in nature.

I commend the bill to the House.

[12.53 p.m.]

Mr MICHAEL HODGMAN (Denison) - Mr Speaker, the Opposition strongly supports this bill. Indeed we have been calling for this legislation publicly for some two years. It does what many believe it should do in that it changes the law from 'child abuse product' to 'child exploitation material'. It inserts exploitation material offences into the Criminal Code, where the maximum penalty upon conviction is 21 years' imprisonment. It also substantially upgrades the penalty provisions of the Classification (Publications, Films and Computer Games) Enforcement Act of 1995. The bill has been drafted with reference to the set of principles for nationally consistent child pornography laws developed by the standing committee of Attorneys-General. The new provisions of the Criminal Code will proscribe involvement of a child in the production of child exploitation material and the production, distribution and possession of or intentionally accessing child exploitation material. It codifies the defences agreed to by the standing committee of Attorneys-General and it outlaws the procuring and grooming of young persons under 17 for the purposes of sexual exploitation, particularly through the Internet.

May I say from the outset that I particularly support the drafting of the definition of child exploitation material, which takes it further than the Attorney indicated in her second reading speech and which the Opposition strongly supports. Under this bill:

' "Child exploitation material" means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years' -

and I emphasise the words 'or who appears to be under the age of 18 years' -

'(a) engaged in sexual activity; or

(b) in a sexual context; or

(c) as the subject of torture, cruelty or abuse (whether or not in a sexual context)'.

The reason I strongly support this and draw it to the attention of the Parliament is that these vile individuals, who create child exploitation material for the edification of paedophiles and other predators who prey on our children, might very quickly say to themselves, 'We can get around this by getting an actor or actress who is in fact over the age of 18 but who looks much younger'. This bill makes that absolutely illegal. It is a very important part of the drafting, which the Opposition strongly supports. It is not just the age of the person - even though International Labour Convention 182 refers to the age of 18 - it is also what the product looks like. If you had a 20-year-old who looked about 14, you would be able to make child exploitation material - vile that it is - and legally, if these words 'or who appears to be under the age of 18 years' did not appear in the definition, that person could use that as an excuse and as a defence.

We strongly support the legislation. We are as appalled as all other Australians at some of the material that has come to light as the result of Operation Auxin. The number of persons who have been arrested nationally has brought to light the appalling prevalence of child exploitation material in this country. I note the reported 2 000 per cent increase in the number of child pornography images on the Internet since 1996. I think most people know that I am Internet illiterate, but it appals me that there can be such a proliferation of this vile product. The Attorney pointed out in her speech, and it is important to note, that the standing committee of Attorneys-General, in dealing with this vile scourge of child exploitation material, nevertheless considered it appropriate to insist that where a person is simply charged with accessing, vile though that is, it must be intentional accessing. I am informed that there are cases where a person quite innocently could access such material. I note also in the second reading speech - and one would expect this would be the way to go about it - that where there were repeated accessings you could draw an inference that such accessing was intentional.

We strongly support the amendments in relation to sections 125C and 125D of the code, in particular dealing with the question of grooming. I note that in relation to these matters this bill takes a lead from the Queensland Criminal Code, which is the sibling code to our own, in particular in the use of the phrase 'without legitimate reason'.

Sitting suspended from 1 p.m. to 2.30 p.m.

Mr MICHAEL HODGMAN - Mr Speaker, I was saying before -

Mr SPEAKER - The member has only 33 minutes to go.

Mr MICHAEL HODGMAN - I will not be using all of that because the Opposition, as I indicated before the lunch adjournment, are strongly supporting the bill. I was, however, making some comments about the proposed new section 125D, which the State Liberals strongly support because it makes it a crime to make a communication with intent to expose, without legitimate reason, a young person under the age 17 years, or a person the accused believes is under 17, to indecent material.

The courts are well practised at applying the standards of ordinary people in determining what is indecent in the criminal law context. Equally, the courts are well experienced and practised in determining what is meant by words such as 'without legitimate reason'.

As the Attorney pointed out in her second reading speech, the provision is modelled on a similar offence in the Queensland Criminal Code, including the use of the phrase 'without legitimate reason'. It is a question of fact in each case for the court to determine whether, in all the circumstances, the material sent was sent without legitimate reason.

The original Criminal Code in Australia was drawn up by one of our founding fathers of the Federal constitution, Sir Samuel Griffith, who was the Chief Justice of Queensland. As is well known to the House, the three States which have Criminal Codes are Queensland, Tasmania and Western Australia. Whilst the codes of each State are not identical, they are more similar than dissimilar. Work is proceeding apace for a national Criminal Code which, ultimately, will come about and replace the Crimes acts which currently apply in the States of New South Wales, Victoria and South Australia.

The point that I wanted to make is I think the word 'grooming' is well understood. I am slightly surprised that the word 'grooming' does not actually appear either in the title to the proposed new section 125D or in the other sections which are in the same class. It is important that people should be well and truly aware that if they use the Internet, things that are called 'chat rooms' and other electronic facilities, to contact young people and groom them into feeling that there is nothing wrong with paedophile sexual behaviour, those people, under this new law, will be liable to trial on indictment in the Supreme Court of Tasmania and will be liable, upon conviction, to a penalty which could be as high as 21 years' imprisonment.

In other countries not far to our north, lengthy penalties are now imposed on those who prey sexually upon children, and so they should be. As far as I am concerned, in the worst cases I would have no equivocation, were I in a position to do so, of sentencing a person to 21 years' imprisonment for a particularly bad case of paedophile criminality.

On that matter, I want to say that the Opposition does support the proposed increased penalties which will apply in summary prosecutions brought before a magistrate in relation to the provisions of the Classification (Publications, Films and Computer Games) Enforcement Act of 1995. It is only about a year ago that a magistrate complained in relation to a charge of possessing over 30 000 child pornography images, about being restrained in imposing a sentence of imprisonment in excess of 12 months is for the offence of possession when charged summarily; that is now being increased to two years. In other words, it is being doubled. The maximum penalties for the more serious offences to be dealt with summarily, such as making or distributing child exploitation material, have been increased from two years to three years' imprisonment, which again is a very substantial increase. I contemplated the possibility of moving an amendment to increase the penalties. But in light of the fact that ultimately it will be for the Director of Public Prosecutions to determine whether or not to proceed under the Criminal Code, where the penalty can be as high as 21 years in prison, or whether the matter should proceed as a summary prosecution before a magistrate where the penalty for possession can be as high as two years and the penalty for making or distributing can be as high as three years, it was better to leave it as it was proposed in the bill.

The other points I wanted to make were in relation to offences involving young people. The categories within our existing Criminal Code provisions are replicated. It was pointed out by the Attorney in her second reading speech that if young people make a private record of their own consensual sexual activity, they will not be prosecuted for certain child exploitation material offences, even though they are both under the age of 18. With reference to the law in this State, Queensland, Western Australia and I think in most of the Crimes Act States, where the offenders are young and the age gap is no more than five years - say, sexual activity between a 15-year-old and someone under the age of 20 - or where they are even younger and the younger child is aged between 12 and 14 years, provided that the other party is no more than three years older - so that would be 17 at the very oldest but could be as young as 15 - these provisions in relation to sexual conduct between those young people are effectively replicated in relation to such things as a private record of consensual sexual activity. Equally, if another person comes into possession of the material then that person therefore could be charged with possession of that material. If that person distributed the material, that would be even worse.

The other provisions of the bill are basically consequential amendments which I have been through in detail and with which we have no problem. They are routine amendments which refine and update the legislation. They are largely procedural in nature. The State Liberals strongly support this bill. We do not require it to go into committee; we have been through it in considerable detail. We are satisfied with it and it has our total support.

[2.38 p.m.]

Mr McKIM (Franklin) - The Greens will also be supporting this bill. We understand that the majority of the sections and clauses in this bill flow on as a result of a national approach that has been formulated through the standing committee of Attorneys-General. We understand that, with technology moving so rapidly these days, the legislation that governs our State also needs to be rapidly updated in many cases to keep pace. The provisions of this bill have been spoken about at length by both the Attorney-General and the shadow attorney-general. It is not my intent to do so for a third time. However, I did want to raise a couple of issues which arose during my study of this bill and I will ask the Attorney to respond. They are only minor issues and certainly would not influence in any way our previously stated support for this bill.

The first one is in relation to a film and computer game or publication that has not been previously classified. It is in relation to the fact that an accused person who is relying on the classification as a defence will have to bear the costs of applying to the Classification Board for classification. I would just raise a little doubt that often we, in this place, make the assumption that people have unlimited funds with which to run a defence against any particular allegation. We are asking here for somebody who has been charged with a serious offence to bear, out of their own pocket, potential charges in relation to the Classification Board. I ask the Attorney if she is able to indicate the amount of any charges that are likely to be levied by the Classification Board in relation to the classification of any of those materials.

The second point that arose in my mind related to penalties under this act. I was reasonably certain that this matter would have been raised by the Liberal Opposition, but it was not. It is in relation to penalties for certain of the offences that are created in this act. For example, clause 10 will insert a new section 72A in the Criminal Code, which makes it an offence to make or reproduce child exploitation material. It carries a fine not exceeding 300 penalty units or imprisonment for a term not exceeding three years. This is a State where - and Mr Hodgman senior will correct me if I am wrong - the maximum penalty for burglary is 21 years. I wonder why the maximum penalty for making child exploitation material is only three years whereas the maximum sentence for a burglary is 21. I just wonder if the Attorney could educate me about the thought processes that went on.

Mr Michael Hodgman - You did say that matters at the lower end of the scale would be dealt with summarily by a magistrate.

Mr McKIM - These are maximums that a magistrate can impose, and there will be an ability to impose higher sentences in a higher jurisdiction?

Mr Michael Hodgman - Yes. The DPP will move it into the Criminal Court.

Mr McKIM - Yes, thank you. Mr Hodgman has educated me there, but if the Attorney would like to make any comment I would certainly invite her to do so. On the face of it that seems to be a reasonable explanation and I thank the shadow attorney-general for that.

Mrs Jackson - I said it first and he copied me.

Mr McKIM - Well, okay. I do not want to get involved in the Jackson-Hodgman feud today; I was trying delicately to tap dance my way around it. Nevertheless, I accept the Attorney's explanation that she said it first, and I thank her for her explanation - which was confirmed by the shadow attorney-general. Hopefully that has now resolved that particular matter.

Mr Speaker, as I said earlier, the Greens will be supporting this bill. It clearly reflects the national approach in an area that did need updating of legislation, and on that basis we will support it.

[2.44 p.m.]

Mr WILL HODGMAN (Franklin - Deputy Leader of the Opposition) - Mr Speaker, I want to raise a couple of matters with the Attorney. As has been indicated by the shadow attorney-general, we do not seek to go into committee. Can I say from the outset, and perhaps it is trite to say it, that of course we abhor the various forms of child exploitation as they currently exist. They have been manifested as a vile social evil more recently through the World Wide Web. It is perhaps one of the more negative aspects of the rollout of this sort of technology that has enabled freer and more unregulated child exploitation and certainly my view is that the penalty should be high. It is a similar situation, I suppose, to receivers in the law who are often deemed to be equally culpable as the original stealer of property because they are perpetuating a market for stolen goods that serves as an incentive to the thief. Similarly with the Internet, those who put this sort of material on the World Wide Web are feeding the habit of those perverse characters who like to view or further distribute this sort of material. To have suitably high penalties is, I believe, appropriate and to have the bulk of these matters dealt with in the Supreme Court or the indictable jurisdiction is a good thing. Whilst our view is that these provisions should have been brought in earlier, I suspect a large part of the reason for the delay was the fact that there was a national framework coming into play. We believe it is certainly welcome and appropriate.

The issues about which I have some concern relate particularly to young persons engaging in consensual activity. In the Attorney's second reading speech she referred to that conduct taking place in private. I am not sure how that is defined or classified. I assume it means between the two individuals and only those individuals. I expect also that it prohibits that couple in some way displaying the material to any other person. I am getting nods of approval from the advisers' box, but I would like some clarification on that. I am also interested to know what happens when that couple come of age. Obviously the images still depict young persons in sexual activity but I just wondered whether or not a consensual distribution of material depicting themselves as children performing some sort of sexual activity would in fact be covered by this legislation. I am sure it would be the intent.

The only other matter that I have noted at this point comes under section 74B, which provides defences to offences in respect of child exploitation material and allows a defence to those who are engaged in, amongst other things, artistic pursuits that are also deemed to be reasonable in the circumstances. Without wanting to in any way impinge on the artistic licence of people, I suppose it presents one of those classic cases where it is open to interpretation, not only the interpretation of the court but also the artist who may well think that his or her work is reasonable and has been advanced for purely artistic reasons. What concerns me is that that provision may be exploited. I would be interested to know what provisions the Government has or how that might be better protected to ensure that is not abused. Without further delaying the House, I add my support to this bill.

[2.49 p.m.]

Mrs BUTLER (Lyons) - I rise to speak briefly in support of the Criminal Code Amendment (Child Exploitation) Bill 2005. This bill is especially pertinent to my professional experience and I am thrilled to bits that it is finally here. Having worked with young people over most of my career thus far, I have seen first hand what can happen to some of those who fall into the hands of these unsavoury characters. I am especially impressed with the section on grooming. Coercive methods were used by people connected with groups that I have been involved with before we brought in police checks. When police checks were brought in, all sorts of things happened, the people evaporated. We suddenly found that there was no such person as the person who was receiving the electricity bills et cetera; they did not actually exist. Sad to say that some of the victims of these individuals are still in some Tasmanian institutions.

'Grooming' is the term used for the process that paedophiles use to prepare children for future abuse. For example, paedophiles may show pornographic or indecent material to children in order to promote discussion of sexual matters and thereby persuade them that such activity is normal. That sort of thing is certainly happening to 12- and 13-year-olds in my experience. Thank goodness we are doing something. All sorts of weird stories would be told to these children who became excited by it and were sent down the wrong path.

Also under 125D we are targeting the people who are getting at the children through electronic means and I think it is very encouraging that we have thought ahead about the sorts of new methods these people will use to try to get at their children. I am very impressed with the Microsoft and Canadian authorities' steps to develop this open-source program which is being used in Canada so effectively. The FBI reporting a 2 000 per cent increase in the number of child pornography images on the Internet since 1996 and Canadian police estimating more than 100 000 web sites containing images of child sexual abuse is enough to stir anyone's emotions. So well done, Attorney-General, and I commend the bill to the House.

[2.52 p.m.]

Mrs NAPIER (Bass) - Mr Speaker, I would like to join with members of the House in welcoming this bill. I think it is part of a national approach to the issue, but it is an important one that is being tackled as part of a suite of actions that are required to tackle the issue of child abuse. The Ombudsman has done excellent work in dealing with the very difficult process associated with people coming forward with their histories of abuse in various forms. I think that has been overall a good process, despite some hiccups. Even though that in itself has been a good process for those people who have been victims of child abuse, I am not confident that it is necessarily looking at the issue of whether other systems that we have in place in the State are yet well- resourced or well-structured enough to tackle some of the ongoing issues associated with child abuse. I am very pleased to see this as a legislative form for dealing with the area where, whether it is through electronic or other communication systems, bestiality materials or child exploitation material can be constructed or can be used as part of the grooming process. I join with members to say that I think 'grooming' is a very good word to use. It very well describes the fairly intrusive method that is used to make people comfortable with actions that might not otherwise be appropriate.

I think this is a good bill, but I think there is still a need at this stage for an inquiry to look at a number of issues. One of them we raised this morning which is whether or not we have yet got it right in terms of having the systems and supports that will address some of the huge difficulties that many in our community are having in the Child and Family Services area. I really feel for those people who are working in Child and Family Services because they are in a position where they are not able to adequately respond to some of the really complicated issues and situations that arise. They are quite often dealing with non-traditional family structures and trying to balance the fact that you should listen to the children, but at the same time realise that sometimes children can also try to structure a story to move from one family to another. That is not directly to do with abuse, but in a sense you end up with systemic abuse as a result of multiple placements because of the very difficult decision of trying to work out whether someone would be better off with their family, or with foster carers, particularly in a situation where there are multiple placements.

However, that is another issue. I think this is a particularly good piece of legislation. I joined with colleagues on this side of the House for a discussion about whether, in relation to 74A and 73A, two or three years were heavy enough penalties for the offences of being the possession of child exploitation material - for which the penalty cannot exceed two years - and distributing exploitation material or indeed procuring it.

I accept what the minister is saying that that is the maximum penalty that can be applied by magistrates. I just wondered, Minister, whether you could indicate to us how often it is that the DPP would recommend that, rather than a matter being dealt with at the magistrate's level, it be moved to the higher court. What would draw the case to the DPP's attention? Would it be a matter of policy and are there any other areas that could give us an indication of whether it is likely to be directed towards a higher court?

The reason I raise that is that I had the opportunity to meet with a person who was involved in one of the cases that we were mindful of relating to the Safe at Home program. One of the areas of legislation that we have developed in this House is stalking legislation. Stalking legislation was developed, and we have had several attempts at refining that legislation to make it work. In the particular instance I mentioned, where I met the person who had gone through the court case, there had been 300 broken restraint orders. I am not kidding - there had been 300 - but they only used about half of those as part of the stalking case. The other half were not used because they had never been proceeded with, and the appropriate papers had not been delivered to the person. That is what is happening in relation to restraint orders.

The penalty that was applied just did not seem to reflect at all the seriousness with which this House had viewed stalking, and there was a five-month suspended sentence awarded, and two years of a restraint order. On the surface of it, you might say that is a fairly severe penalty, because if they break the rules even once, then in effect they end up back in jail. But from the point of view of this woman, whose life had been made absolute hell, who had felt threatened for all this time, who had to have so much persistence not only to get police to deal with the serious nature of this stalking behaviour, but also to get to the point where the DPP could get into the courts, it just seemed a light sentence that was awarded.

I have written to the Attorney-General highlighting the case and asking whether the DPP should appeal. The DPP replied that he saw no point in appealing, but I wonder whether the decision should be appealed because I was not convinced that the seriousness of stalking had actually been adequately taken into account by the judge. Having said that, I only draw the parallel to ask what would it take for the DPP to intervene? Beyond that, I believe that this is an important part of tackling child abuse.

The next area in which I would like to see some reforms in terms of child abuse is in the schools. It was pretty well identified by a number of forums that I have been to that the stranger-danger programs do not work. South Australia and New South Wales have said that and have completely rewritten and reformed the way they are tackling the whole question of child abuse and child safety. I see no evidence of that happening in our schools; that goes for both private and public schools because I do not differentiate between the two.

The other area, Minister, does fall within your area. I went to a very good forum on justice reform, child abuse and the court process that were experienced by victims of child abuse. The victims included children and also adults who were brave enough to step forward and finally do something about it even though the transgressions occurred many years before. I am told it is more likely now that children and parents would proceed with a case because of the change in community attitudes as much as anything else. It was a very good forum. I was delighted to see Arnold Shott there and representatives of so many different service organisations around Tasmania. I wondered, Minister, what steps you were considering taking in relation to examining court procedure and the education of lawyers, both from the point of view of both prosecution and defence. There is also that very touchy area of the attitudes of judges and magistrates to the whole question of court procedure and the way in which child abuse cases are heard. The excellent seminar dealt with some very valuable issues and materials in breaking down the process that occurs in courts. It showed that the court case can sometimes be almost worse than the child abuse. They are not my words, they are their words; the people who were speaking were victims of child abuse.

[3.03 p.m.]

Mrs JACKSON (Denison - Minister for Justice and Industrial Relations) - On the artistic merit defence, it is a defence to prove that the defendant was acting through genuine child protection, scientific, medical, legal, artistic or public benefit purpose and that the conduct was reasonable for that purpose. That is what the bill states. In determining whether the defence is available - and of course it is only a defence, it is no more than that - regard will need to be paid to the circumstances in which the material was produced, used or intended to be used. The artistic purpose defence is necessary in order to pick up things that do not fall within the classification scheme - such as sculptures. For example, there may be, in the course of producing a sculpture which is an artist production, material which, on the face of it, people might regard as offensive. It may or may not be sexual. The onus is on the person charged with the offence to reach a very high standard in showing not only that it is part of an artist enterprise but also that it is reasonable in its representation and that it would not cause offence to a reasonable person if they were aware of the circumstances and appropriate use of the material that might otherwise justify the existence of the thing, in the same way that scientific, educational and other defences are represented. The defence has to show that a reasonable adult will not find it offensive, providing it was done in an appropriate context and in a reasonable way. As I say, we consider it appropriate that this artistic exemption sit alongside the educational and scientific exemptions.

I understand there is some concern but it is important to remember that the defence is qualified by a question of whether the conduct was reasonable. A lot of thought has gone into developing the appropriate categories of defence that should apply to these offences right across the country. SCAG has been developing a model for nationally consistent child pornography laws. I think we are the first State to have comprehensive enactment of this legislation. That is why I said in my second reaching speech that it might be necessary to come back with amendments in the future if we find that we need to do that. Other States have enacted legislation to increase the penalties but we have made this comprehensive response to this issue. That is the reason it has taken time to draft this legislation. It is not easy legislation to draft, to make sure that you are not including things that you do not wish to include and make sure that the legislation does what you are intending it to do.

I have also been advised that inclusion of artistic defence has the support of the Department of Police and Public Safety. I believe there is a legitimate basis for material which has some literary or artistic merit to be identified as potentially reasonable even though at first instance it might be offensive to some people. If an extraordinary case is thrown up in the future that indicates this defence is being exploited in some way, then we can deal with it and we will tighten the law. My advice here is that in Canada they have looked at amending the code to try to introduce a test of reasonableness into their artistic-merit defence to overcome these concerns. We will be keeping an eye on this to make sure that it is working as we hope it will and not being exploited as a loophole by some people claiming it is of artistic merit.

It also should be noted that someone who is accused of any of these offences will not escape liability simply by saying that it is artistic. They will have to satisfy the court. The court will have to look at all the circumstances surrounding how the person came to have or produce this material and the manner in which it was produced. Clearly, if a person charged with the offence also has in their possession other material - and I think this is pertinent - which is clearly paedophilic in nature or depicts sexual or physical abuse of children, it is going to be very difficult for them to establish that they were doing it for any educational or artistic purposes. I think it is also fair to say that in matters like this judges will take a cautious and conservative approach to what kinds of art it is reasonable to engage in. In determining whether there is any genuine artistic basis for its existence, the court will look at all the circumstances surrounding how the accused came to be associated with the material.

On the issue that Mr Will Hodgman raised about recording for private purposes, this defence again does not permit the distribution of material some later time when they are adults. It is when it was actually produced; becoming an adult does not mean they can then distribute the material. The accused must be depicted. It is private material in the sense that it is made for a couple's purposes only, and it is not to be distributed. So it is really about distribution, not just for profit. I would also suggest that if it was put on a web site or something like that then that would obviously constitute distribution and then it would not be considered to be for private use. If the material was produced when they were in the category that you are talking about - say, a 14-year-old girl and a 17-year-old boy - and then they both were 18 or over, they would still not be able to distribute that material.

Concerning the classification charges that Mr McKim asked me about, I have been advised they are approximately up to $1 500. On the issue about the DPP it is like all crimes; in many cases the DPP will be asked to decide whether or not it should be treated summarily or by indictment. The DPP will make a decision. It is not whether or not it will be sent to the DPP; his office decides whether or not it should be dealt with summarily or by indictment. There is no categorical formula that says exactly what the DPP's office will decide. It will depend, as it does with other crimes such as assault, on the seriousness of the crime and the circumstances of the case. The DPP will probably develop guidelines in consultation with police, as they have done with, for example, assault, where there is a wide range of matters - a simple assault through to grievous bodily harm. The range, I imagine, in this area will be extensive as well, from what will be seen as a minor matter with some mitigating circumstances through to a very serious situation. It is not really for us here to make those calls because every case will be different. The DPP and his staff are the people who are skilled in making these decisions; they have the expertise and they do it on a daily basis. I am always wary when we make ourselves out sometimes to be experts on these sorts of issues, because I do not think in most cases we really know what we are talking about. People who are dealing with this in a professional way on a daily basis are the people who are in the best position to make those decisions. It will depend on the case and on the seriousness of the case.

That last suggestion of Mrs Napier's is where you get into considering ourselves experts. With reference to what you just suggested in your closing remarks, I suggest you talk to the person sitting next to you and ask him to explain to you the reaction of the magistrates, judges and lawyers, if I were to do that. In fact I refer you to the front page of the Mercury a few weeks ago when you can -

Mrs Napier - That's why I said it was touchy.

Mrs JACKSON - 'Touchy' is one way of putting it. I refer you to the front page of the Mercury several weeks ago when the Chief Justice thought this Parliament was trying to tell him what to do, and what he thought about that. Then I suggested that perhaps they should hear from the people who drafted the legislation - not about directing the law or what the Family Violence Act actually meant, nothing about interpretation, we would not do that. People in the department such as Liz Little would never hold themselves out to be experts in that area. The idea was really just to give them a background as to how this legislation came into being, and that was what they were offered. The magistrates accepted that. The Supreme Court judges said no, they did not think they required that. But I think it would have been valuable for anybody to get the context in which that legislation was drafted and the many years of evidence that were brought to bear on that legislation. It was not just something that came out of the blue, so to speak.

Suffice it to say, the judiciary is very protective of its separation of powers, and I do not have a problem with that. There is no way that we here in Parliament can tell them what they should do and how they should interpret the law. It is for us to draft the law and pass it; it is for them to interpret it, and I agree with that totally. In fact I defend that wholeheartedly, because over the years some of that has broken down to a large extent, because we now do have a lot of statutory law. Of course initially, and way back in history when we just had the common law, it was just the courts interpreting the law, but now we have such a bevy of statute law. In many instances it is very descriptive and leaves very little discretion for the judiciary and how they interpret that. We even have people who suggest we should have mandatory sentencing for some crimes and no discretion there at all for the judiciary. But that is perhaps a debate for another day.

I am just saying I would not be brave enough, Mrs Napier, to suggest anything like you have just suggested. Firstly, inherently I do not agree with it but, even as a point of discussion, I suggest you are a braver person than I to raise it. So I thank the Parliament for their support of this legislation.

Bill read the second time and taken through the remaining stages.