Classification of child exploitation material
In November 2016, the Queensland Sentencing Advisory Council received a reference from the Attorney-General, the Hon Yvette D’Ath MP, to examine the classification of child exploitation material (CEM) for sentencing purposes.
The council is consulting on the review with key stakeholders such as Queensland Police Service, other criminal justice sector agencies, the legal community and victim advocacy groups, as well as the general public.
What is CEM?
Material defined as CEM in Queensland is variously referred to as ‘child exploitation material’, ‘child abuse material’ and ‘child pornography’.
Under Queensland law this incorporates all material that depicts or describes children in a sexual context, in an offensive or demeaning context or being subjected to abuse, cruelty or torture.
How is CEM currently classified?
An average CEM case involves more than 100,000 individual files which require review — this potentially includes photos, video and/or evidence of internet streaming.
Queensland has adopted the Oliver scale to classify the severity and type of images involved.
This nine-level classification tool categorises images according to the kinds of activities shown.
Currently, officers must view all images to initially assess whether the files are CEM under existing Queensland legislation and then categorise them according to the relevant Oliver scale.
As well as being traumatic for the officers involved, this is time consuming, potentially diverts resources from identifying the young victims of this crime, and is linked to time delays in sentencing offenders.
Terms of reference
The 2015 Queensland Organised Crime Commission of Inquiry raised a number of concerns regarding the classification of child exploitation material, including:
- excessive time delays and the flow-on effect for victim identification and prosecutions
- the potential harmful impacts for criminal justice officers (such as police, prosecutors and judicial officers) involved in classifying images.
In Queensland, the Oliver scale is used to classify child exploitation material. Under this system, every image and video being used as evidence in these cases is viewed and confirmed as child exploitation material.
Under Queensland legislation, when sentencing an offender for such offences, a court must take into account a range of issues, such as the apparent age of the child and the nature of the images involved.
In undertaking the reference, the council will:
- consider and review the effectiveness and suitability of the Oliver scale and alternative classification systems
- consider if classifications of child exploitation material made by other jurisdictions can be relied on by Queensland courts
- assess the merits of the New South Wales and Victorian classification systems which use random sampling of seized images
- have regard to the need for a sentencing court to have a clear and accepted method of assessing the offending behaviour against the diversion of law enforcement resources away from identifying and rescuing children from further harm
- consider if any other sentencing factors should be added to section 9(7) (a) of the Penalties and Sentences Act 1992 (Qld), such as the volume and ‘scale’ of images, and whether the children in the images are known to the offender
- determine if use of the Australian National Victim Image Library (ANVIL) and Child Exploitation Tracking Software (CETS) or similar database tools, used in conjunction with Project VIC, would reduce the amount of time police spend on classification processes
- have regard to relevant research, reports and publications relevant to sentencing practices in child exploitation offences
- consult with key stakeholders, including Queensland Police Service, the legal profession, the Crime and Corruption Commission, academics and the judiciary
- advise on any other matter relevant to this reference.
Public consultation — 13 March to 10 April 2017
Final report — 31 May 2017