Classification of child exploitation material

The Attorney-General and Minister for Justice Yvette D’Ath asked us to review the classification of child exploitation material (CEM) for sentencing purposes and determine whether any improvements can be made. The final report has now been released.

The review comprised significant consultation across Queensland’s criminal justice system involved with detecting, prosecuting and sentencing CEM offences. In addition, we consulted with key agencies from Queensland’s legal community and victim advocates, as well as community members, content experts and relevant agencies in other Australian and international jurisdictions.

This broad consultation revealed Queensland is well respected for its professionalism in CEM investigation at national and international levels. Consequently, we were determined to ensure any system used for classification of CEM in Queensland supports and builds on this reputation. Administrative data collected by criminal justice agencies was analysed to gain an appreciation of the Queensland context of CEM offending and offenders. This report provides the outcomes of this analysis.

The report is structured in six chapters, initially introducing the current approach to classifying CEM in Queensland, outlining what is known about CEM offending and CEM offenders, and comparing Queensland’s approach to other jurisdictions.

The review culminates by proposing a new approach for classifying CEM for sentencing purposes, referred to as the Q-CEM Package. Mechanisms designed to support and evaluate the Q-CEM Package, and Queensland’s readiness to continue to meet the many challenges associated with this evolving crime type, are also proposed.

Key findings

CEM is not a victimless crime. These offences harm real children and the repeated circulation of CEM depicting this abuse continues their victimisation. Victims of CEM report lifelong impacts as a result of the abuse and re-victimisation via sharing of the material. It is difficult to permanently or fully remove images from circulation.

Delays are associated with CEM cases. Our research confirmed anecdotal evidence that delays were associated with the criminal justice response to CEM. The delays are most prevalent between charging an offender and proceeding to a committal hearing. During this period, police undertake typically complex forensic processes and classify detected CEM.

CEM is an international crime with a local footprint. CEM is a technology-enabled crime and, as such, will continue to evolve and expand in line with the exponential growth and global interconnectivity of technology. Queensland child victims and Queensland offenders require a suitable response from state and commonwealth criminal justice agencies.

National and international cooperation is essential. All Australian state and territory jurisdictions are seeking a platform to support cooperation at national and international levels. A common platform promotes harmonised classification language to respond to the international dimension of these crimes. Common platforms are designed to address time and welfare burdens on criminal justice agencies by sharing data about CEM encountered in other jurisdictions. They enhance victim identification efforts by enabling a stronger focus on new material.

Data analysis, research and a commitment to practice evaluation are important. Identifying how this crime type is shifting remains a critical issue for Queensland. Keeping pace will build on the state’s reputation for innovation, and reflects the commitment this state has to protecting Queensland children and families.

Queensland needs a system that balances the requirements of all criminal justice agencies. Classification for sentencing must balance the demands on law enforcement to identify victims and offenders with the mechanisms required to prosecute and sentence offenders. The Q-CEM Package is specifically designed to address these critical functions of a system responsible for removing children from harm and bringing offenders to account.

Queensland needs to adopt an enhanced approach to sexting and promoting prevention of CEM offending. Establishing mechanisms to provide support to families, schools and other organisations that can raise awareness among young people about how to remain safe online is essential. There is also a role to encourage offenders and potential offenders into treatment for their sexual interest in children.

Recommendations

Recommendation 1

The council recommends amending section 9(7) of the Penalties and Sentences Act 1992 (Qld) by:
(a) replacing the wording ‘image of a child’ in subsection 9(7)(a) with ‘material depicting a child’
(b) adding a new subsection—role of the offender
(c) adding a new subsection—offender’s relationship with the child.

Recommendation 2

The council recommends adding a section to the Penalties and Sentences Act 1992 (Qld) giving judicial officers discretion to order additional requirements of a parole order (including to submit to medical, psychiatric or psychological assessment) when ordering a parole release date.

Recommendation 3

The council recommends sentencing judicial officers order that any medical, psychiatric or psychological assessment or treatment reports submitted as part of child exploitation material (CEM) court cases be referred to Queensland Corrective Services to support rehabilitation efforts.

Recommendation 4

The council:

  • acknowledges law enforcement agencies are unlikely to continue using the Oliver scale for classifying images involved in this evolving crime area
  • acknowledges the Oliver scale has limitations for law enforcement agencies including resource inefficiencies and diverting resources from victim identification effort
  • recommends, if law enforcement ceases using the Oliver scale as its classification tool for CEM, it should adopt an effective alternative, such as the scheme outlined in recommendation 5 and supported by recommendation 6.

Recommendation 5

The council recommends the adoption of the Q-CEM Package, incorporating a Classification of CEM Schema (CCS) and a Child Exploitation Material Analysis (CEMA) Report, as the most appropriate approach for presenting timely and adequate information about CEM before Queensland courts for sentencing.

Recommendation 6

The council recommends formalisation of an approved field triage process and a Timeframe Report for the prosecuting agency with carriage of the matter as a priority to support implementation of the Q-CEM Package.

Recommendation 7

The council recommends formalisation of the Q-CEM Package, incorporating the CCS and the CEMA Report, supported by approved field triage, into the Queensland Police Service (QPS) policy/procedural framework as a matter of urgency.

Recommendation 8

The council recommends:

  • consideration be given to introducing thresholds by adding a provision to the Evidence Act 1977 (Qld) regarding a CEM certificate. The certificate would be evidence of the fact an authorised officer conducted classification of seized CEM in accordance with the threshold method
  • a threshold method set by a regulation (most likely the Evidence Regulation 2007) to deliver time savings in the classification of CEM for Queensland courts
  • an independent body evaluate the use of a threshold process if implemented at six-month and two-year evaluation points.

Recommendation 9

The council recommends the Queensland Government elevate the issue of coordination and cooperation in both classification approaches and data sharing to the national level via the Law, Crime and Community Safety Council.

Recommendation 10

The council recommends the Queensland Government consider removing any legislative impediments to the sharing of CEM between law enforcement agencies, which include criminal intelligence organisations.

Recommendation 11


The council recommends the establishment of an eSafeQ Commissioner position to meet the challenges associated with online offending and protect Queensland children and families in the virtual environment.

Recommendation 12

The council recommends an integrated, staged and independent evaluation framework be adopted to monitor and assess the implementation and effectiveness of the Q-CEM Package to deliver the intended outcomes for Queensland.

Recommendation 13

The council recommends law enforcement agencies undertaking classification for Queensland courts immediately commence documenting baseline information and establish data collection mechanisms.

Recommendation 14

The council recommends the evaluation of Taskforce Orion provide definitive guidance about current and projected resource and maintenance requirements associated with the trialled technology and welfare management, and any practice improvements or learnings derived from the trial.

Recommendation 15

The council:

  • acknowledges the suite of recommendations have resource implications for QPS as the agency with primary responsibility for classification in Queensland
  • recommends QPS be allocated additional resources for a three-year period to support the implementation and evaluation of the Q-CEM Package.

Recommendation 16

The council proposes an independent review be undertaken of current arrangements in which state-based forensic and investigative resources specific to this offending type are divided between the Crime and Corruption Commission (CCC) and QPS.

Chapter overviews


Chapter 1: Introduction. This chapter details the background and terms of reference to the review of the classification of CEM for sentencing purposes, including an introduction to the Oliver scale.

Chapter 2: Queensland context. This chapter details the prevalence of CEM offending, examines the social science research on CEM offenders, and sets out the demographic characteristics of CEM offenders in Queensland identified in the council’s research. The chapter also outlines the approach taken in Queensland to investigate, prosecute and sentence offenders, and the use of the Oliver scale for these purposes.

Chapter 3: Sentencing CEM offenders in Queensland. This chapter outlines the current legislative framework for dealing with CEM offending, outlines how CEM offenders are sentenced, and summarises sentencing outcomes for CEM offences in Queensland over the last 10 years.

Chapter 4: Classification of CEM. This chapter provides a description of how CEM is classified in other Australian jurisdictions. It provides an analysis of the shortcomings of the Oliver scale, and a description of several key international approaches to classification. Random sampling is explored as an alternative to classifying full collections of CEM.

Chapter 5: Replacement system of classification—Q-CEM Package. This chapter presents a proposed new approach to assessing offence seriousness for sentencing purposes. The proposed ‘Q-CEM Package’ aims to find a balance between the police priority of investigating offenders and identifying victims and the court’s priority of understanding the seriousness of the offending to assist with sentencing.

Chapter 6: Building Queensland’s position. To sustain and extend Queensland’s leading role in tackling CEM offending, this chapter outlines a range of additional recommendations to enhance the approach taken to prosecute offences and provide additional mechanisms to enhance Queensland’s capacity in this area.