Court/Judicial body: High Court of Australia
Date: June 13, 2006 CRC
Provisions: Article 4.2(a) of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography – Establishing jurisdiction over offences including sexual exploitation when the offender is a resident or citizen of the territory
Other international provisions:Statute of Westminster Sections 2, 3 Treaty of Versailles, Articles 118, 119Covenant of the League of Nations, Article 22
Domestic provisions:Constitution of Australia, Sections 44, 51, 61, 75; Chapter IIICrimes Act, Sections 50 AD, 50BA, 50BCCriminal Code, Section 11.1Judiciary Act, Section 18Crimes (Child Sex Tourism) Amendment Act, Section 3Extradition Act, Sections 9, 18, 33 and 34 Vic c 52War Crimes Act, Section 9
Case summary
Background: While in Thailand, an Australian citizen engaged in sexual relations with a non-citizen, non-resident of Australia under the age of 16. Upon return to Australia, he was prosecuted under an Australian law which makes it illegal for a citizen or resident of Australia to have sexual or indecent relations with children under the age of 16 in any country.
Issue and resolution: Sexual exploitation of children and extra-territorial jurisdiction. The Court was asked to consider whether Australia was able to criminalise conduct undertaken by Australian citizens or residents outside of the country’s borders. The Court agreed with the government that this would be permissible, even if the conduct in question was legal in the foreign country where it occurred.
Court reasoning: Under the Australian Constitution, the Australian government has the power to restrict activities of its citizens and residents while abroad under its “external affairs” powers, which stem from the country’s own sovereignty as a self-governing nation.
Dissenting opinion: The external affairs power could not have been intended to criminalise conduct which is legal in the place it was undertaken. In addition, international concerns about child sexual exploitation would not necessarily implicate the conduct at issue as they relate primarily to sexual activity involving children under 12. Moreover, the legislation in question pre-dated the Optional Protocol to the CRC and other related international declarations and resolutions.
Excerpt citing CRC and other relevant human rights 62. Of critical importance was the adoption by the General Assembly of the United Nations, on 20 November 1989, of the Convention on the Rights of the Child (the CRC). Australia ratified that Convention in January 1991. So have most other nation states. Stimulated by the CRC, and by the commitments contained within it, a number of initiatives were taken within the United Nations Organisation, designed to protect children from various harms and dangers. Eventually, an Optional Protocol to the CRC was adopted by the General Assembly on 25May 2000. By Art 4.2(a) of that Protocol it is provided that: “Each State Party may take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 3, paragraph 1 [including ‘[s]exual exploitation of the child’] … (a) [w]hen the alleged offender is a national of that State or a person who has his habitual residence in its territory.” 63. Australia, through the federal Executive Government, took a leading part in drafting, proposing and securing the adoption of this Protocol. However, the Commonwealth did not rely upon the Protocol as a treaty which the provisions of the Crimes Act in question were designed to implement. Nevertheless, the Commonwealth submitted that the Protocol indicated that the subject matter of the Crimes Act was one of “international concern” and was relevant to Australia’s relationships with other nation states and with relevant international organisations.
Notes: At the time of the decision, the Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography had been signed, but not ratified by Australia, meaning that Australia was not bound by its provisions. Just over six months after this decision was published, Australia went on to formally accede to the Protocol on January 8, 2007.
CRIN comments: CRIN believes that this decision is consistent with the Convention on the Rights of the Child and its Optional Protocol on the sale of children, child prostitution, and child pornography. While efforts to prevent the sexual exploitation of children from occurring must be prioritised, this exploitation should rightfully be criminalised wherever it may occur in the world. As these laws must be enforced if they are to have any effect, this decision correctly follows the spirit and language of the Optional Protocol.
Citation: XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 (13 June 2006), ILDC 528 (AU 2006)
Link to full judgement: http://www.austlii.edu.au/au/cases/cth/HCA/2006/25.html