EXECUTIVE SUMMARY

The focus of this paper is specifically defined to relate to child pornography law. The relevant statutory provisions are set out, with reference to NSW and other Australian jurisdictions, and their operation and application analysed by reference to the available statistical data and case law.

The Henson affair: Issues concerning child pornography have been prominent in political and media debates in recent times. One focus of controversy in recent months has been the exhibition of photographs by Bill Henson at one of Sydney’s leading art galleries. The upshot to the Henson controversy was that the exhibition opened, with entry by invitation only. No sooner was the matter resolved than further controversy arose over the publication in Arts Monthly Australia of pictures of a naked six-year old girl, in an edition of the magazine that explored the Henson controversy. It is reported that the Rudd Government will ask the Australia Council to develop, in consultation with the arts sector and the general community, a set of protocols to cover the representation of children in art. Going a step further, the NSW Community Services Minister Kevin Greene has urged the development of new classification standards in respect to children in art for the purpose of achieving ‘greater clarity and consistency’. The NSW Attorney General John Hatzistergos had also written to State and federal Ministers calling for ‘the classification system to be strengthened’. In response, the executive director of the National Association for the Visual Arts, Tamara Winikoff, expressed concern, saying ‘The reaction has been excessive and ill-considered because there’s already a huge amount of protection in place’. [2.1]

High profile cases: Media attention has been drawn to high profile cases involving child pornography, including that of the former NSW deputy Crown prosecutor Patrick Power and former NSW Aboriginal Affairs Minister, Milton Orkopoulos. [2.2]

The Internet and police operations: Referring to the availability of child pornography material on the Internet, AFP Commissioner, Mike Keelty, said in 2004 that ‘Canadian estimates place the number of child pornographic websites operating globally at over 100,000, generating around US$3 billion per annum’. Responding to this challenge, specialist police units have been formed in Australian States and federally to combat online child exploitation. Internationally, in December 2003, the Virtual Global Taskforce was established. Operation Auxin was an Australian police operation conducted in September 2004. It followed the receipt in the previous March of a referral from Operation Falcon, an FBI investigation into online child pornography. Arrests occurred by jurisdiction as follows: Victoria 68; Queensland 57; NSW 28; Western Australia 24; Northern Territory seven; South Australia six; and Tasmania one. In the wake of Operation Auxin, the law on child pornography was amended across Australia, with the introduction of harsher penalties (among other things). As a result of Operation Centurion in June 2008 the following jurisdictional breakdown for arrests was reported: Queensland 40; NSW 23; Victoria 17; South Australia four; ACT three; and one each in Tasmania and Western Australia. [2.3]

Not a victimless crime: The accessibility of child pornography or child abuse images on the Internet raises the question of the relationship between the viewing of such images and actual child abuse off-line by the offender concerned. It is agreed that the very act of accessing child pornography makes the offender a party to child sexual abuse. As the UK Sentencing Panel observed: ‘Possession of child pornography is not (as some have argued) a victimless offence’. [2.5]

Definitional issues: Definitions of child pornography can vary considerably, both in a legal context from one jurisdiction to another, and between legal and non-legal approaches to the subject. One source of ambiguity is that the legal definition of a ‘child’ varies between and within jurisdictions for various purposes. In Australia, child pornography legislation in some jurisdictions defines ‘child’ as a person under, or who appears to be under 16 (NSW, Queensland, South Australia, and Western Australia), in others as a person under, or who appears to be under 18 years of age (Commonwealth, Tasmania, Victoria, the ACT and the Northern Territory). [3.1.2]

A further complicating factor for any definition of child pornography is the varieties of behaviour depicted. The narrowest definition would cover only depictions of actual children engaged in explicit sexual activity. In Australia, the various legal definitions of child pornography seek to accommodate the broader view of child pornography. For NSW, the relevant definition includes reference to depictions or descriptions of a child ‘engaged in sexual activity’ or ‘in a sexual context’. The NSW definition of child pornography also makes reference to a third category of prohibited material, relating to depictions or descriptions of a child ‘as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)’. [3.1.8]

Typologies: In recognition of the wide range of images that might be classified as child pornography, COPINE (Combating Paedophile Information Networks in Europe) has developed a grading scheme for categories of child pornography material. [4.2] The COPINE 10 level typology has become influential in clinical and in legal circles. A revised typology was formulated by the UK Sentencing Panel in 2002. [4.3] Subsequently, in the guideline judgment of Oliver [2002] EWCA Crim 2766, the UK Court of Appeal (Criminal Division) accepted, subject to one revision, the Panel's analysis of increasing seriousness by reference to five different levels of activity: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; and (5) sadism or bestiality. [4.4] Judicial reference has been made in NSW to the COPINE typology, as in R v Saddler [2008] NSWDC 48. However, in the same case Berman SC DCJ rejected any suggestion that the NSW courts should go one step further and take note of the sentencing guidelines laid down by the UK Court of Appeal in Oliver, saying that ‘sentencing is essentially a local matter’. [4.5]

Legislative framework: There are a number of arms to the regulation of child pornography, which traverses censorship, customs, crimes and broadcasting legislation, some of which is at State or Territory level and some at the federal level. Of these, it is the various crimes statutes and the Commonwealth customs legislation that are the most important legislative instruments in the fight against child pornography. Censorship and broadcasting legislation are also relevant. [5.1 and 5.2] As set out in Table 1, federally prosecutions are undertaken pursuant to s 233BAB of the Customs Act 1901 (Cth), which contains offences for the importation and exportation of, amongst other things, child pornography and child abuse material in hard copy. [5.4] Also at the Commonwealth level, the prosecution of online offences is undertaken under the Criminal Code Act 1995. [5.5] Relevant State and Territory offences, which are not confined to online offences, are set out in Table 2. [5.6] Set out in Table 3 are the State and Territory offences relating to the use of children for pornographic purposes. [5.8]

Sentencing issues and child pornography case law: Sentencing issues are raised in relation to child pornography offences, notably the adequacy of penalties imposed on offenders. Maximum penalties are amongst the issues to be considered in the NSW Sentencing Council’s current review of sexual offences. The statistics indicate that those who commit child pornography offences are overwhelmingly male and the majority of offenders plead guilty. A significant number of child pornography offenders are sentenced in a Local Court, in which case the maximum penalty is lower than if a matter is heard in a District Court. Statistics indicate that the average length of imprisonment for NSW child pornography offences is 12 months. The average length of the sentences for Commonwealth child pornography offences in 2007-2008 is higher than the previous year, which may indicate a trend towards harsher sentences for child pornography offences. [6.7]

Case law: The case law has also raised a number of issues about how child pornography offenders are charged and sentenced when a large number of items are found in their possession. In R v Saddler [2008] NSWDC 48, after discussing the nature of child pornography offences, Judge Berman commented on the inadequacy of the maximum penalty for the offence of possession of child pornography under section 91H(3) Crimes Act 1900 (NSW). Saddler was charged with three counts of possessing child pornography, each relating to a different location where the items of child pornography were found. Judge Berman commented that the three charges covered ‘an enormous number of separate items of child pornography’. [7.1]

Advances in technology such as the development of mobile phone cameras have also meant that problems such as ‘up-skirting’, where the offender takes a picture up the skirt of a female child, have been addressed by the courts. In Drummond [2008] NSWLC 10 the surreptitious, ‘up-skirt’ filming of a 14 year old schoolgirl was found ‘in all the circumstances’ to constitute child pornography. One question is whether such behaviour should be prosecuted under a new and separate offence, similar to the offence of intimate covert filming, which was introduced into the New Zealand Crimes Act (s 216G) in 2006. [4.4 and 7.6]