, Research Paper
Child Sex Tourism Bill in Australia
On March 23rd 1994 the Child Sex Tourism bill was introduced into the House
of Representatives. This act, which amended the Crimes Act of 1914, enabling the
Australian government to prosecute Australian child sex offenders overseas.
Before the introduction of this new legislation, if an offence was committed
overseas and not punished whilst in the country, Australian law officials were
powerless.
The proposed changes in the law are to deal with the following issues:
Firstly sexual offences committed by Australian Residents overseas, particularly
in relation to acts of paedophilia committed within the major trouble spot, Asia.
This section refers to anyone who commits a sexual act on a child under the age
of sixteen, at the time that the offence was committed. Also the changes intend
to deal with organisations that may run or promote child sex tours, such as
travel agencies and the like, who have specifically run sex tour packages.
Defences to these offences such as stating that the defendant had no knowledge
of the child’s age will be also targeted, as currently, this is a major
stumbling block on the course to justice. Finally to save time and cost, video
link hearings will be setup between the child in question overseas, and the
Australian courts.
The changes stated above were required to not only protect abused children
residing overseas, but to prove that the Australian Government is in touch with
the community values within Australian cities. The amendments made to the law
were needed because of the shameful amount of Australians indulging in sex
practices with minors in countries other than Australia. Before the law was
amended the general feeling among those involved in the process was that the
Child Sex Tourism Act would have to carry severe penalties with it. The reason
for such hefty penalties is that the law had the potential to be more of a
deterrent to ‘would be’ offenders and to also reflect the desire of the
Australian community. It was obvious ever since the Act was drafted that it
would, by no means, be an easy law to enforce.
Within the Australian community many high ranking authorities expressed
their attitudes towards the new law publicly. Several of the comments spoken
appeared one sided, also, many conflicted with opinions already offered to the
public in regard to fair trials.
“If Parliaments adopted this (Bill) it would be an absolute outrage, firstly,
because you would have people wanting it in other legislation. You would throw
aside 200 years of criminal justice with fairness for the accused. Fairness for
the accused is also fairness for the community.” This statement was expressed by
Mr. John Dowd. Another statement that supports the argument Mr. John Dowd
presents, is the response Mr. Martin Sides, QC, offers. “It is my view that
there are significant and powerful procedures that are not available to accused
persons or, for that matter, the prosecution, in this legislative scheme.”
In conflict with the views of Mr. John Dowd and Mr. Martin Sides, Senator
Margaret Reynolds presented this argument. “I do not propose to comment on the
technicalities of the Bill except to emphasise that it is essential that the
intention of the Bill be fully maximised. The significance of the Bill’s
deterrent effect must not be jeopardised by any legal uncertainty which could
result in an unsuccessful prosecution.”
The first two statements mentioned in the above paragraphs offer the view
that the Bill will obstruct the right of an individual to undergo a far trial.
In conflict with these statements, Senator Margaret Reynolds accentuates that
the Bill enforced with its full potential, as act as a deterrent, against ‘would
be’ offenders. She expressed that if this task is accomplished, there would be
no question of an unfair trial.
During the campaign to introduce the new act into the law, many groups of
individuals and institutions played an active role in the process of introducing
the new law. Whether their part be major or minor, all of the institutions
mentioned in the following paragraphs helped to introduce the amendment into the
Crimes Act.
ECPAT is a well known institution that has played a leading role in the
campaign to stop child sex tourism in Asia; as the name suggests: ECPAT (End
Child Prostitution In Asian Tourism). ECPAT consists of several community minded
groups who all gel together to shape a well rounded institution with a lot of
influence within the nation. The institution as a whole carried out an education
campaign within Australia. This education campaign focussed on the abundance of
child sex tourism.
LAWASIA is another group of individuals that devoted many hours of their
time in assuring the new legislation was passed in Parliament. LAWASIA is a
group of private attorneys that, in 1993 assembled the first World Congress on
Family Law and Children’s Rights. This convention expressed overwhelming support
for the new legislation.
Another first in the way of conventions was the first World Congress on the
Commercial Sexual Exploitation of Children. The convention was held in Stockholm
and was attended by officials from 115 nations and also representatives from
over 400 non-government organisations. This convention debated the widespread
issue of child sex tourism, in particular, Cambodia was targeted. Cambodia was
specifically targeted as in 1990, it was estimated that there was about 1500
commercial sex workers. The UNICEF organisation now estimates there to be more
than 50, 000 commercial sex workers, with almost half of that figure under the
age of 18. These alarming figures certainly help to alert the governments of the
world that the Child Sex Tourism industry is booming and it must be stopped.
Prior to the introduction of the amendment in the Crimes Act, regarding
child sex tourism, many demands were made for the change in the law. A report
was produced by the Standing Committee on Legal and Constitutional Affairs, it
was titled “Crimes (Child Sex Tourism) Amendment Bill 1994″. This publication
contained many recommendations which were made by the standing committee, they
included, recommendations that the Attorney-General and the Minister for Justice,
advise the states to take action in
report. The committee recommended that the Bill protect people under this Act as
it would under any other law. A recommendation was also given that in the cases
where video link is to be incorporated, the tradition of the fair trial must be
upheld. The final recommendation made by the report was that there should be a
large degree of discussion between all parties before the introduction of the
amendment.
In response to these recommendations and pressure from other non-government
institutions, such as ECPAT, on the 5th of July, 1994,? the legislation to
protect overseas children from Australian sex offenders, came into effect. This
legislation was finally brought into effect after many hours of furious debate
between many parties. The majority of these parties believed that the
legislation had great potential, and with this support, in a democratic society,
the legislation was finally passed and the law was amended. The legislation was
drafted to incorporate many features that were recommended by the Standing
Committee on Legal and Constitutional Affairs. Video links were established in
court cases where the child in question, was located in an overseas country.
This saved the courts time and money, but it also creates the possibility of the
child being made-up to appear younger or older, all depending on who is paying
the most, the defendant, or one of his enemies.
Many of the groups spoken about in the above paragraphs did not go ‘out on a
limb’ with their views, they merely reflected the values which the majority of
the community supports. A commanding value among the community of Australian
citizens is that sex between minors and adults should be outlawed to an upmost
extent, even if this means chasing offenders overseas. With that value in mind,
the Child Sex Tourism Legislation was drafted. Community values reflect largely
in the legislation. As a whole, the Australian community respects the children
of the world, and their right to innocence. This innocence can be shattered by
pimps who do not have the same respect for children that many Australians share.
Hefty penalties which are associated with the legislation reflect this one major
community value. The maximum penalty carried with the Child Sex Tourism Act is
seventeen years imprisonment. Although, some may think that this maximum penalty
is rather severe, in order to please the majority of the community and to act as
a deterrent, the penalties were set.
Before the legislation was drafted, Parliament established a Standing
Committee to research these community values in association to child sex tourism
and to later submit a report to Parliament containing recommendations.
The report which Parliament requested was completed in May 1994 and
contained several recommendations which were mentioned above.? To this report
Parliament reacted swiftly in drafting the Child Sex Tourism legislation and
clearing a quick passage for the legislation to pass through Parliament. The
speed at which the legislation was passed was due to the overwhelming support
showed by all Government parties in the introduction of the legislation. The
legislation incorporated all of the recommendations given by the Standing
Committee, which gives an indication of Parliaments intention in pleasing the
communities values in passing this legislation. Parliament respected the wishes
of the community by including hefty penalties for not only having sex with a
minor but also other offences including, committing an act of indecency on a
child and submitting to an act of indecency committed by a child. Both of these
offences carry a maximum penalty of twelve years imprisonment.
In the drafting of the legislation, Parliament was restricted by the amount
of man power which could be assigned to uphold a law against offences committed
in other countries. This restriction was found to be even harder to overcome as
many of the law officials overseas were easily bribed by wealthy Australian
business men. To overcome this restriction Parliament realised the law would
have to act well as a preventative measure
The Child Sex Tourism legislation brings about a mile stone for the
Australian judicial system. This is the first piece of legislation that allows
the prosecution of Australian residents when the offence is committed overseas
since the introduction of the war crimes legislation over six years ago. The
legislation has also brought with it an increasing awareness of the practices
which a small minority of Australian residents and companies choose to indulge
in. The implementation of the new legislation must act as quite a deterrent to
those within the community who are involved in these practises. It has also
opened up a whole new Pandora’s box of possibilities in relation to other laws
being implement in the same fashion. As a whole the majority of members within
the community are pleased with the final result. After many hours of public
debate and furious pressure from advocate groups, the federal Parliament has
shown that although a crime which, if committed in an Australia would be harshly
dealt withh, it cannot be committed in a more socially relaxed country. Although
sound in theory the legislation has many a problem in practice. This problems
were shown specifically in the case brought against the Australian diplomat, Mr
John Holloway. Mr Holloway was accused of having sexual intercourse with a child
under the age of 16, but the trial was abandoned due to insufficient evidence.
BIBLIOGRAPHY
1). “A legal brake on Parliament” The Australian, 15 November 1996.
2). “Crimes (Child Sex Tourism) Amendment Bill 1994, Second Reading” Weekly
Senate Hansard, 30 June 1994.
3). “Crimes (Child Sex Tourism) Amendment Bill 1994″ House of Representatives
Standing Committee on Legal and Constitutional Affairs, May 1994.
4). Farrar, P. “Comview” 1996.
5). “Fordham International Law Journal” Volume. 18:1852.
6). “Pedophiles likely to flout new law” Herald Sun, (1st edition), 22 March
1995.
7). “Police urge new strategy to hit child-sex tourism” The Age, 15 November
1996.
8). “Sex Slaves” The Age, 26 August 1996.
9). “The children’s crusade” The Age, 16 November 1995.
10). “UN report urges ban on child sex” The Age, 13 March 1993.