The Victorian Government has passed the Crimes Amendment (Child Pornography and Other Matters) Bill 2015 (Bill) to amend various Victorian laws that relate to child pornography offences. These changes come at a time when easy access to the Internet and advances in technology have made sharing and distributing child pornography online more prevalent.

The changes made by the Bill include changes to the Crimes Act 1958 (Vic) (Crimes Act) which:

• increase the maximum penalties for existing child pornography possession offences; and
• introduce three new child pornography offences.

The changes made by the Bill affect the Education and Training Reform Act 2006 (Education Act) and the Working with Children Act 2005 (WWC Act) and thus will have implications for schools.

Three new offences

Currently the Crimes Act has three offences relating to child pornography that prohibit the production, procurement of a child for, or possession of child pornography in Victoria.

The Bill introduces three new offences making it a crime punishable by up to 10 years’ imprisonment to:

• administer a child pornography website;
• encourage the use of a website to deal with child pornography; or
• assist a person to avoid apprehension for a child pornography offence.

Although the explanatory material relating to the Bill does not suggest that these new offences are intended to target school website administrators, the generality of the wording of the offences means that if school IT systems are used to ‘deal’ in child pornography, criminal liability may result.

Administering a website

The first offence targets administrators of websites who become aware that a website is being used by another person to ‘deal’ with child pornography. Unless that administrator takes ‘all reasonable steps in the circumstance to prevent any person from being able to use the website to deal with child pornography’ that administrator will be guilty of a criminal offence.

There are several key defined terms which are included in the offence:

• a ‘website’ includes a page, or a group of pages, on the Internet;
• ‘administer’ in relation to a website includes building, developing or maintaining the website but excludes hosting the website; and
• ‘deal’, in relation to child pornography includes viewing, uploading or downloading child pornography and facilitating the viewing, uploading or downloading of child pornography.

Reasonable steps to prevent a website being used to deal in the pornography include:

• notifying police;
• notifying a relevant industry regulator;
• shutting down the website; or
• modifying the website so it can no longer be used to deal with child pornography.

Encouraging the use of a website

This new offence will target those who encourage others to use a website to deal with child pornography by, for example, advertising or promoting use of the site.

Assisting a person to avoid apprehension

The third offence criminalises the provision of information to another person about ways to evade apprehension for a child pornography offence. For example, it is now a crime to advise others about how to use a child pornography website anonymously or how to encrypt child pornography files on a computer to escape detection.

Consequential changes to the Education and WWC Acts

The Bill amends the definition of a ‘child pornography offence’ in the Crimes Act which consequently changes related definitions in the Education Act and the WWC Act.

The definition of a ‘sexual offence’ in the Education Act has been expanded to include the three new offences in the Bill. This change affects the category of offences that may render a person ineligible for registration as a teacher or permission to teach from the Victorian Institute of Teaching (VIT). Section 2.6.9 and 2.6.14 of the Education Act provide that the VIT may refuse to grant registration or permission to teach to a person who has been found guilty or convicted of a sexual offence.

In Victoria, school employees need to be registered as a teacher, or have permission to teach or alternatively, have a working with children check – but not both.

To maintain consistency throughout the relevant legislation, the WWC Act has been amended to include the three new offences in the definition of a ‘child pornography offence’. Section 12 of the WWC Act provides that if a person has been convicted or found guilty of any child pornography offence, including the new three offences, they must be refused WWC clearance.

A difficult crime to prosecute

The ever-evolving and often anonymous nature of child pornography offences can make these crimes difficult to prosecute. The Bill gives more power to prosecutors and police in the investigation and prosecution of child pornography offences to remedy common difficulties associated with the prosecution process. These powers include greater police search powers and greater discretion for prosecutors when presenting evidence of child pornography in court.

The difficulties the police can have when trying to prosecute online conduct under outdated laws was recently demonstrated by a decision by the ACT Supreme Court which found that a man was not guilty of using the Internet to deprave young people under section 66 of the Crimes Act 1900 (ACT). The man had recorded a sexual encounter with a teenage boy and sent the video to the boy’s younger brother via Facebook messaging. However, The Canberra Times reported that the man was found not guilty of sending pornographic material via ‘electronic means’ to the younger boy, as Facebook messaging did not fit within the Act’s definition of ‘electronic means’.

That case demonstrates how ever-changing technology can mean that legislation can be quickly out of date if it cannot keep up with technological advancements.

What should schools do now?

The new child pornography offences are unlikely to directly apply to schools. However, the Victorian Government’s creation of the new crimes, harsher penalties and the introduction of the restriction of access to children after committing these offences indicates that child pornography and the ease of access created by the Internet to such materials is of great concern to the Government.

These amendments should act as a reminder to schools of the importance of protecting of students from indecent material shared on the Internet and the need for restrictive IT policies for students, teachers and other members of staff. The offences should also encourage schools to conduct regular audits of their Internet access logs to ensure that if their IT systems are used to ‘deal’ in child pornography, that the access is identified and steps can then be taken to prevent such access from occurring again.

Unfortunately, reports of staff members using their work computers to access and share child pornography are becoming more common and measures should be taken by schools to prevent this conduct from occurring. Schools should prohibit accessing child pornography in their staff conduct policies, have clear repercussions for those who breach those policies, and maintain a system of website filtering or restriction for all school computers, including teachers’ laptops, to block access to these sites.

The Victorian Department of Education provides filtering software on the Internet services provided to government schools and allows each individual school to allow or block websites. Non-government schools often have similar filtering systems to restrict students’ access to social media sites and inappropriate material.

Although such software is not foolproof, it should provide a deterrent to the majority of Internet users.

The fact that The Age reported last month that nearly 60% of Victorian high school students surveyed have admitted to bypassing Internet filters, some by stealing teacher and administrator log-in details, emphasises the challenges schools face when trying to use software to restrict access to inappropriate sites.

Despite the limitations of IT filtering solutions, schools can take other steps to reduce the risk of their resources being used to access illegal sites. Staff should be educated on the new criminal laws and schools should introduce policies and procedures which deter staff and other members of the school community from accessing inappropriate content at work.