Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Dragonfly out in the sun, you know what I mean… IPA’s legal audit and child abuse materials

I will never get tired of the Institute of Public Affairs’ Legal Rights Audit series.  It’s hilarious.  I’ve written about it a few times before.  The research method is clumsy and inane, resulting in extremely weird results.  Given the terrible quality of the research, you really have to wonder why it continues to receive its Deductible Gift Recipient status, basically a gift from the taxpayer for it to keep the lights on.

Legal Rights Audit 2019 is wonderfully weird because it captures the Combatting Child Sexual Exploitation Legislation Amendment Act 2019: libertarians have a very uncomfortable relationship with exploitation of all kinds, but they seem ‘Creepy Uncle’ levels of interested in child exploitation.

Let’s start at the start.  After the IPA’s mates in News Corp swore black and blue that a Royal Commission into Institutional Responses to Child Sexual Abuse was unnecessary (and the IPA’s Chris Berg warned us of the dangers of holding a Royal Commission at all), the Royal Commission instead found significant and widespread systemic issues.  The Royal Commission recommended a number of legislative proposals, and these proposals were legislated in stages.

The Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (‘the Act’) protects children from sexual exploitation by improving the Commonwealth framework of offences relating to child abuse material, overseas child sexual abuse, forced marriage, failing to report child sexual abuse and failing to protect children from such abuse.

The IPA’s research method involves doing keyword searches on legislation.  If the legislation includes the phrase, then it’s counted as yet another infringement of traditional legal rights.  In this case, the IPA found that the Act includes the phrase ‘bears a legal burden’.

It might be worth looking at precisely what the IPA claimed.

Legislation:
Combatting Child Sexual Exploitation Legislation Amendment Act 2019.

Key word(s) searched:
“bears a legal burden”

Relevant section:
Inserts section 474.22A into the Criminal Code Act 1995
Possession or controlling child abuse material obtained or
accessed using a carriage service

Category:
Courts and law enforcement

Description:
If the prosecution proves beyond reasonable doubt a person has possession or control of child abuse material on a computer or data storage device, then it is presumed that the defendant used a carriage service to obtain or access child abuse material. The defendant bears a legal burden in proving otherwise.

They’re discussing Schedule 3, section 1 of the Act.  This section does not insert section 474.22A into the Criminal Code Act 1995.  It inserts section 474.22A into the Criminal Code.  These are different things and you would expect legal researchers to know the difference.

Next, it doesn’t insert the words ‘bears a legal burden’ in the section.  It inserts the word in the note.  And, as we all remember from reading the Acts Interpretation Act 1901, the note isn’t part of the section (it’s an aid to interpretation).

Enough pedantry!  What is this ‘note’?

A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.

A quick reminder of s 13.4 of the Criminal Code:

 A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a)  specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b)  requires the defendant to prove the matter; or

(c)  creates a presumption that the matter exists unless the contrary is proved.

The relevant matter is (b).  As we will see, new s 474.22A will require the defendant to prove something if a threshold is met.  So let’s unpack s 474.22A.

There are four elements to the offence.  I’ll discuss them out of order because it’s clearer.

First, the ‘material’ that gives rise to the offence has to be child abuse material. ‘Child abuse material’ has a legislated meaning in section 473.1 of the Criminal Code.  It’s quite long; here we go:

child abuse material means:

(a)  material that depicts a person, or a representation of a person, who:

(i)  is, or appears to be, under 18 years of age; and

(ii)  is, or appears to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b)  material that describes a person who:

(i)  is, or is implied to be, under 18 years of age; and

(ii)  is, or is implied to be, a victim of torture, cruelty or physical abuse;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c)  material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i)  is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)  is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d)  material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i)  a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii)  a representation of such a sexual organ or anal region; or

(iii)  the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(e)  material that describes a person who is, or is implied to be, under 18 years of age and who:

(i)  is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)  is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(f)  material that describes:

(i)  a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii)  the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(g)  material that is a doll or other object that resembles:

(i)  a person who is, or appears to be, under 18 years of age; or

(ii)  a part of the body of such a person;

if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.

If the State cannot prove that the material matches one of the above descriptions, the defendant walks free.  It’s quite a high bar, really.  In the United States, ‘barely legal porn’ bizarrely gets First Amendment protections: it’s where a person over the age of 18 attempts to appear as if they are younger than 18 for the purposes of pornography.  Under the above, barely legal porn would still be legal, provided that it did not do so in a way that ‘reasonable persons would regard as being, in all the circumstances, offensive‘.

We have some caselaw on this.  McEwen v Simmons is a NSW Supreme Court case from 2008 which discussed pornography based on The Simpsons.  The depiction was of the Simpsons children engaging in sexual activity, and the Supreme Court found determining if it was child sexual abuse material would always be a matter of ‘fact and degree’ to avoid obviously absurd outcomes.

Now some people really object to the above description of ‘child abuse material’.  Some people, for example, like to profit from content that matches the description of the above.  The Eros Foundation, for example, is a lobby group of creepy old guys who really don’t see much of a problem with most of the above.  Jarryd Bartle–the policy and campaigns manager for the Eros Foundation–for example, thought that any criticism of the IPA’s finding that this breached natural legal rights was ‘some Catholic adjacent natural law bullshit‘.

But it turns out that most normal people whose brains have not been sanded micron-smooth by porn industry nonsense tend to think that the rights of the child should trump the right of people to profit from child exploitation material described above.

And, most importantly of all, it is for the State to prove that it is child sex abuse material. The defendant can sit on their hands and say nothing; if the State cannot establish that it meets one of the above descriptions, the case is over.

Next, the material has to be data held in a computer or on a storage device.  Although this should ordinarily be straightforward, there was a case above a gold Samsung mobile phone (Luppino v Fisher (No 2) [2019] FCA 1100) which meant the definition needed to be changed to expressly include mobile phones.

And then, after all of that, the State has to prove that the defendant was in possession or control of the material.

So, quickly, the State has to prove that the material is yours, that it’s within the scope of the provision by being data, and that it matches one of the above descriptions.  You’d imagine that, by this point, you’d already be picking out your stripey pyjamas and having your ankle measured for a ball and chain.

Not quite.  There’s a fourth element, and that element is that ‘the person used a carriage service to obtain or access the material’.

Why is this here?  It turns out that the Commonwealth does not obviously have the power to regulate pornography.  The Australian Constitution helpfully lists the majority of the Commonwealth’s legislative powers in one handy spot, section 51.  Sure, there are some other places in which legislative powers hide, but that’s the main one.  If it’s not on that list, it is extremely likely that the Commonwealth does not have the power to make laws about it.

Nowhere in section 51 will you find ‘pornography’, or ‘child pornography’, or anything that even remotely looks like the Commonwealth can make possessing child abuse material a crime.  So what’s the deal?

The answer is ‘postal, telegraphic, telephonic, and other like services’.  The Commonwealth has the ability to legislate about things on the Internet because the High Court basically said that the Internet is a modern postal, telegraphic, telephonic, and other like service.

So the hook for the Commonwealth is that the person used a carriage service in order to obtain the child abuse material.  Without that hook, it’s very likely to be outside of Commonwealth power.

But… that is extremely difficult to prove.  For example, you might have a photographic memory and you can look at a page of numbers and remember all of them perfectly.  You go to some weird pervert convention–possibly sponsored by the Eros Foundation–and they have a book of child abuse material rendered as hexadecimal code.  You flick through it, remembering all the numbers, then type it directly into your computer so that it creates the child abuse material.  Congrats, you didn’t use a carriage service and therefore the section doesn’t apply.

A more normal example might be the physical exchange of USB drives, or a situation where a person used CGI-rendering software to create their own lifelike or hyperrealistic child exploitation material.

The Act does something different.  It says that if the State can prove that you’ve got the child abuse material, that it’s within the scope of the provision, and that it’s yours, it will be assumed that you used a carriage service to obtain the material.  You have the right to rebut that assumption, but you are the one who has to prove that and not the State.

To the Explanatory Memorandum:

The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical. Such evidence can be circumstantial, including for example that the defendant’s computer had chat logs saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard
drive.

Let’s be serious.  The heart of this criminal provision is not that you used the Internet to access child abuse material, it’s that you’re in possession of child abuse material.  The provision to which the IPA is objecting is taking away a technicality in the law that defeats just and sensible outcomes.

You could argue that the provision undermines Federalism.  If you’re going to create a presumption that the criminal activity is within jurisdiction, then what is the point of the jurisdictional divide between Commonwealth powers and State powers?

But that’s not what the IPA has argued.  The IPA has said that shifting the legal burden here is a breach of the legal rights of ordinary Australians who are in possession of child exploitation material, and that the Commonwealth should have more respect for these people’s rights.

The IPA’s assertion here is clearly insane and only arises because their keyword search method does not take into consideration any kind of legal analysis of the provisions being discussed.


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