Using a carriage service for indecent communications with a child
272. It is proposed to create a new Commonwealth offence for using a carriage service for indecent communications with a child.
273. A number of States and Territories have offences which criminalise exposing children to pornographic or indecent material (see Table 2 and detailed Table 2.3 in the Appendix). The offences in three of these jurisdictions are limited to exposing children through electronic communications (Queensland, Western Australia and the Australian Capital Territory). The remaining two are much broader – the Tasmanian offence covers exposure by any means of communication, while Northern Territory offence covers exposure by any means. The maximum penalties for these offences range from five to 21 years imprisonment.
274. Internationally, NZ also has an offence of exhibiting or displaying an objectionable
publication to any person under the age of 18 years. This offence carries a maximum penalty of ten years imprisonment.
275. In relation to existing Commonwealth law, there is a general offence of using a carriage service in a way that is menacing, harassing or offensive (section 474.17 of the Criminal Code). It is possible that this offence would capture indecent communications with a child. However, the offence only carries a maximum penalty of three years imprisonment. While this is appropriate given the breadth of the offence and the range of behaviour that it is intended to capture (being directed at persons of any age), the penalty is not considered to appropriately reflect the gravity of sending indecent communications to a child.
276. There are also existing Commonwealth offences that criminalise using a carriage service for certain, but not all, indecent communications with a child. Sections 474.19 and 474.22 of the Criminal Code make it an offence to use a carriage service for child pornography or child abuse material. This offence would cover situations in which the offender emails child pornography or child abuse material to a child (as the offences apply regardless of the age of recipient).
277. It would also be an offence to use a carriage service to send communications (including communications that contain indecent material) to a child, with the intention of grooming or procuring that child for sexual activity (sections 474.26 and 474.27 of the Criminal Code). This would cover situations in which the offender emails indecent material (such as adult pornography) to a child, with the intention of grooming or procuring the child for sexual activity. However, the grooming and procuring offences do not address situations in which the offender emails adult pornography to a child with no further intent to groom or procure the child for sexual activity.
278. It is proposed to fill this gap by creating a specific Commonwealth offence of using a carriage service for indecent communications with a child. The proposed new offence would apply where the defendant is at least 18 years old, and
(i) the defendant uses a carriage service to transmit a communication to the recipient (ii) the recipient is a child under 16 years old (or someone who the defendant believes is
under 16 years old), and
(iii) the communication includes material that is indecent according to the standards of ordinary people (it would be left open to the Court to determine whether the material was in fact indecent).
279. The maximum penalty for the proposed new offence would be seven years imprisonment. 280. Further detail on the proposed new offence, including on definitions, the application of absolute liability, extensions of criminal responsibility and defences, is set out below in the ‘Elements common to new offences’ section in paragraphs 290 to 305 below.
Using a carriage service for sexual activity with a child
281. Commonwealth grooming and procuring offences were enacted in response to the increasing use of technology by offenders as part of steps leading up to real life meetings with child victims. At the time, it was considered that where the offender took the relationship offline and met up with the child in ‘real life,’ State and Territory offences would apply if sexual activity with the child took place.
282. However, changes in technology means that offenders can commit sexual offences against children without meeting up in ‘real life.’ For example, an offender may expose his or her genitalia to a web cam while a child watches online (the modern day equivalent of a ‘flasher’). Another example might be that the offender masturbates in front of a web cam while a child watches online. In both examples, the sexual activity is occurring between the offender and the child, even though it takes place online.
283. Currently, there is no specific Commonwealth offence for using a carriage service for sexual activity with a child. There are also no existing State or Territory offences directed at the use of a carriage service for such activity. It is proposed to address this gap by enacting a new offence of using a carriage service for sexual activity with a child.
284. The proposed offence would apply where the defendant is at least 18 years old, and
(i) the defendant uses a carriage service to commit an act of indecency in the presence of a child under 16 years of age, or
(ii) the defendant causes a child to commit an act of indecency (including with another person) using a carriage service either:
a. in the presence of the defendant, or
b. in the presence of another person who is at least 18 years old (the third party). 285. The maximum penalty for the proposed new offence would be 15 years imprisonment. This would ensure consistency with the like offence directed at sexual conduct (in real life) in the child sex tourism offence regime, in relation to which it is proposed above to increase the maximum penalty from 12 to 15 years imprisonment.
286. Further detail on definitions, the application of absolute liability, extensions of criminal responsibility and defences is set out below in the elements common to new offences section in paragraphs 290 to 305 below.
287. Consistent with the proposed changes to the grooming and procuring offences described above, the ‘presence requirement’ would be defined to clearly capture non-physical (eg virtual presence). The proposed new offence is intended to capture the use of a carriage service for sexual activity in ‘real-time.’ Examples would include:
(i) where an offender masturbates in front of a web cam and the child watches online (ii) where an offender causes a child to masturbate in front of a web cam and a third party
watches online,
(iii) where an offender causes a child to have sexual intercourse with another person (either an adult or child) in front of a web cam and the offender or a third party watches online. 288. The proposed new offence is not intended to capture sexual activity that does not occur in ‘real-time.’ Such activity is more appropriately captured by other offences, as illustrated by the following example scenarios.
Example 1 – An offender films him or herself masturbating, and emails the film to a child. The offender
would be committing either:
(i) the new proposed offence of using a carriage service for indecent communications with a child, or
(ii) if the offender sent the film to the child with the intention of grooming or procuring that child for sexual activity, a grooming or procuring offence under section 474.26 or 474.27 of the Criminal Code.
Example 2 – An offender causes a child to take indecent photographs of him or herself and email them to
the offender. The offender would be committing either:
(i) a State or Territory offence of making child pornography
(ii) an offence under section 474.19 of the Criminal Code of using a carriage service for child pornography material
(iii) the new proposed offence of using a carriage service for indecent communications with a child, or
(iv) a procuring offence under section 474.26 of the Criminal Code (this is because the recording of the sexual activity satisfies the ‘presence requirement’).
Example 3 – An offender emails a child and asks them to film themselves having sexual intercourse with
another person (either an adult or a child). The offender would be committing either: (i) a State or Territory offence of making child pornography, or
(ii) a procuring offence under section 474.26 of the Criminal Code (this is because the recording of the sexual activity satisfies the ‘presence requirement’).
New aggravated offences where the offender is in a position of trust and/or authority or the child victim has a cognitive impairment
289. For the same reasons discussed above in the child sex tourism context (at paragraph 119 onwards), it is proposed to introduce new aggravated offences where an offender commits the proposed new offence of using a carriage service for sexual activity with a child and the offender is in a position of trust and/or authority with the victim, or the victim has a cognitive impairment. The proposed new aggravated offence would operate along the same lines as the aggravated offences for relevant child sex tourism offences and carry a maximum penalty of 25 years imprisonment.