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 regards to the recommendations made in the 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 with, 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.
1913 WORDS
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.
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