Questions on the sale of children, child prostitution and child pornography - Children’s Convention from the United Nations

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Please inform the Committee about the measures taken to implement the recommendations contained in the Committee’s concluding observations on the report submitted by the State party under article 12 (1) of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (CRC/C/OPSC/NZL/CO/1), in particular measures taken to:

Question 30(a)

  1. Establish a comprehensive data-collection system covering all areas of the Optional Protocol;

Reply to 30(a)

DIA gathers information, including personal information, for a range of regulatory compliance and law enforcement purposes to fulfil its statutory functions. The Department must act lawfully in line with any statutory authority (particularly the BORA), the Code of Conduct, the Public Service Commission Model Standards, other relevant guidance and what the public generally expects and considers reasonable. DIA employees carry out information gathering activities in accordance with the Department’s Information Gathering Framework, including keeping appropriate records about the planning, approval, conduct and reporting of information gathering activities, and following the processes set out in the Framework.

In considering how to collect information DIA considers a range of factors, including:

  • the official source of the information
  • the credibility and reliability of the source of the information, where it is not an official source
  • the impact of the collection on affected individuals
  • the severity of the harm we are seeking to prevent or address
  • the intended and possible outcome(s) of the information collection (for example, a prosecution or imposition of a fine or other statutory penalty).

Question 30(b)

  1. Define and criminalize the sale of children, child prostitution and child pornography, including attempt and complicity to commit any of those acts, in accordance with articles 2 and 3 of the Optional Protocol;

Reply to 30(b)

Prevention of child exploitation and trafficking

The Government is developing a new national Plan of Action against Forced Labour, People Trafficking and Slavery, setting out a high-level framework for the actions that agencies will undertake between 2020 and 2025 to address these practices.

The draft Trafficking National Plan of Action recognises that children are among the most vulnerable to exploitation and sets out a range of actions targeted at addressing the exploitation of children both within New Zealand and internationally. Part of this plan includes exploring the possibility of research and collection of data to enable us to gain a better understanding of what New Zealand’s experience is with these issues, including among children.

Building from the existing Plan of Action to Prevent People Trafficking, Oranga Tamariki are now recognised as a key agency and lead for actions to prevent child exploitation and protect children.

Oranga Tamariki also chairs the Children Across Borders Working Group, which consists of agency representatives from across government.

The Government will also consider strengthening provisions relating to the criminalisation of trafficking in children. This will ensure our legislative settings remain fit-for-purpose to address child trafficking.

In accordance with policy, New Zealand only ratified the protocol once it passed the legislation required to implement it. Accordingly, all offences in the protocol are offences under New Zealand law. This includes section 98AA of the Crimes Act which creates an offence for people dealing with children for the purpose of sexual exploitation, the removal of body parts, and engagement in forced labour.

New Zealand’s trafficking framework includes a specific trafficking offence in section 98D of the Crimes Act as well as other offences including abduction, kidnapping and exploiting workers.

The trafficking offence applies to both adults and children, and the fact that the victim is under 18 years is an aggravating factor on sentencing.

Prevention of child sexual exploitation

DIA is mandated to investigate and prosecute offences of possession, distribution and producing objectionable publications under the Films, Videos and Publications Classifications Act 1993 (FVPCA). [1] This includes online child sexual exploitation material (referred to as child pornography in some other countries).

The Digital Safety Group has built a reputation as being a highly effective investigation agency, working alongside domestic and international partners to identify and prosecute people who collect and distribute child exploitation materials online and identify and help victims.

The team help to protect New Zealand children by:

  • ensuring restricted content is accessed appropriately;
  • removing the ability to access material that has been classified as objectionable and is considered injurious to the public good; and

managing the Digital Child Exploitation Filtering System which blocks access to websites that contain child sexual abuse material.

Question 30(c)

  1. Provide the Children’s Commissioner and the national Human Rights Commission with the mandate to promote and monitor the implementation of the Optional Protocol, to receive complaints and to refer them for criminal investigation and prosecution;

Reply to 30(c)

Although there is no specific reference to the Optional Protocol itself within their mandates, the Human Rights Commission (HRC) and the Office of the Children’s Commissioner promote and monitor the Children’s Convention and its Optional Protocols as part of their general functions (section 5(2)(kc) of the Human Rights Act 2003 and implicitly in the Children’s Commissioner’s Act 2003). This includes the ability to lodge a complaint with the HRC.

Question 30(d)

  1. Conduct a study on the nature and root causes of the sexual exploitation of children and any measures taken as a result of such a study for the prevention of all forms of exploitation as defined in the Optional Protocol;

Reply to 30(d)

The Digital Safety Group has provided data and insight into third parties on offender behaviour and demographics since 2015.

Question 30(e)

  1. Hold all legal persons liable, including corporations, for offences under the Optional Protocol;

Reply to 30(e)

In relation to online child sexual exploitation, DIA holds liable legal persons in New Zealand through the following prosecution processes:

  • formal written warnings,
  • youth justice process that includes family group conferences, or
  • youth court.

For adult offenders there are District Court proceedings that may result in alternative actions. However, in most criminal convictions cases prosecution results in:

  • pecuniary fines,
  • probation,
  • supervision,
  • placement on the child sex offender register, or
  • terms of imprisonment.

Questions 30(f) and 30(g)

  1. Establish and exercise extraterritorial jurisdiction over all offences covered by the Optional Protocol;
  2. Remove the limits on extradition for offences under the Optional Protocol;

Replies to 30(f) and 30(g)

An offence is deemed to be committed in New Zealand if any part of the offence is committed in New Zealand (section 7 Crimes Act 1961).

Both New Zealand Customs service and Police hold charge and prosecute a range of offenders under the FVPCA, the Crimes Act 1961 and Customs and Excise Act 2018 for online child exploitation. For example this includes offences set out in sections 98AA (people dealing with people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour), 98A (participation in organised criminal group), 98C (smuggling migrants) and 98D (human trafficking) of the Crimes Act 1961.

In addition, section 7A of the Crimes Act 1961 creates extraterritoriality for specified offences with transnational aspects. This will ensure that sale and exploitation of children is an offence if it occurred completely outside New Zealand and was committed by either a citizen of New Zealand or a person who is ordinarily resident in New Zealand. New Zealand does not have extraterritorial jurisdiction under section 7A of the Crimes Act 1961 if the victim is a national of New Zealand.

Section 144A of the Crimes Act 1961 creates an extraterritorial offence for New Zealand citizens and residents who have sexual conduct with people under 18 outside of New Zealand. This explicitly applies to child prostitution offences occurring outside of New Zealand.

Extraterritoriality for child pornography offences exists in section 145A of the FVPCA. Offences occurring outside of New Zealand can be prosecuted under that Act if the alleged offender is found in New Zealand and is not extradited because they are a New Zealand citizen.

New Zealand does not need a treaty to extradite or receive extradition requests. Dual criminality is required and includes that the offence is punishable by 12 months or more imprisonment in both the requested and the requesting country. All of the offences under the protocol reach this threshold.

Question 30(h)

  1. Establish mechanisms and procedures for the early detection and identification of children who are victims of offences prohibited under the Optional Protocol and ensure that they have access to victim support services under the Victims’ Rights Amendment Act, 2014, from the date that a complaint is made;

Reply to 30(h)

Taskforce Ruru is a group of Victim Identification Specialists from DIA, New Zealand Police and Customs Service who work to a specific protocol in order to identify child sexual exploitation victims both within New Zealand and overseas. They support the development and maintenance of national and international agreements that are in place and undertake ongoing training to follow best practice image analysis. The Taskforce meets on a regular basis throughout the year and link in with other jurisdictions across the globe.

Police is an active member and interacts with the Taskforce Ruru primarily through the Online Child Exploitation Across New Zealand (OCEANZ) team. The group discuss emerging trends and topics on online child sexual abuse, which supports MBIE’s Plan of Action Against Forced Labour, People Trafficking and Slavery.

In Wellington, the OCEANZ team focusses solely on online child exploitation and is connected with Police Districts at multiple levels. The team carries out investigations into all types of online child exploitation and also conducts victim identification investigations. At present, the victim identification role is currently undergoing redesign to ensure it is fit for purpose and adequately supports district and national investigations.

Question 30(i)

  1. Enact the evidence amendment bill to allow children who are victims and/or witnesses to provide evidence in alternative ways;

Reply to 30(i)

The Evidence Amendment Act 2016 made a number of significant changes to how child witnesses give evidence in criminal proceedings. For example, it is now presumed that a child witness will give their evidence in an alternative way (for example by a video record made before the hearing, from behind a screen or from a place outside the court room). An application must be made if a child witness wishes to give evidence in the way an adult would.

However, in most prosecution cases progressed by DIA, the investigation of possession, production, or distribution of the content does not reveal the child victims contained within in it. As such, the child victims are unable to be called as witnesses in the court proceedings, nor is their direct evidence necessary to meet the evidential threshold for offences under the FVPCA.

Question 30(j)

  1. Promptly investigate reports of offences covered by the Optional Protocol, to prosecute the accused, to punish the perpetrators and to provide adequate support and redress for children who are victims;

Reply to 30(j)

New Zealand investigates these offences using a cross-agency approach involving DIA, Police and Customs.

The Digital Safety inspectors at DIA hold specific warrants under the Search and Surveillance Act 2012 to investigate and ensure compliance with the FVPCA. DIA have specific warrants which allow them special search and seizure powers in relation to child sexual exploitation.

Customs focuses on the cross-border illicit trade in child sexual exploitation material, whether carried across the border on devices such as computers or phones or imported via online means.

In 2019, Customs began the process to double the number of Child Exploitation Operations Team investigators dedicated to investigating and prosecuting offences involving cross-border transfers of child sexual exploitation material from 6 to 12 (full complement will be in place by 2023). Customs also began building up significant additional analytical and electronic processing staff, to support the investigators as they investigate and prosecute these offences. This will allow Customs to respond more fully to the over 1,000 attempts made every day to import and/or export child sexual exploitation material across New Zealand’s cyber border, and to the three to five thousand referrals each year from our partner agencies overseas.

Police coordinate prevention activities and investigations into online child exploitation across the country. Child Protection Teams within the Districts are dedicated full time to investigating offences against children and carrying out child protection activities. This includes the investigation of child exploitation online.

Question 30(k)

  1. Prevent and combat the sale and sexual abuse and exploitation of children committed online.

Reply to 30(k)

In recent years, DIA has operated in two main areas of the wider digital safety environment. DIA detects, deters and prosecutes those responsible for creating and sharing child exploitation material online – as well as assisting other local and international enforcement agencies in similar efforts. The main tool for prevention is the digital child exploitation filter which blocks access to known child exploitation sites for users of those internet services who voluntarily subscribe to the filter.

There is a centralised contact team (which also carries out investigations into all types of online child exploitation) for multiple agencies (DIA and NZ Customs) as well as international partners who refer online child exploitation investigations to Police. These investigations and referrals are then coordinated and disseminated throughout the country, with the OCEANZ supporting district investigations. The OCEANZ team provides additional training to staff to proliferate knowledge not only to investigators, but also to front line staff, to enable identification and detection of online child exploitation offending. Police are also a member of a number of global taskforce’s that are dedicated to this area of offending (recognising the serious and borderless nature of this type of offending).

DIA, Police and Customs work together to undertake the below programmes to prevent online child sexual exploitation and abuse.

  1. Taskforce Ruru (refer to reply to paragraph 30(h) of the list of issues)
  2. Prevention working groups and initiatives
    • In December 2019, the Combating Child Sexual Exploitation Group was launched. This group includes NGOs and is developing and running collaborative initiatives, projects and campaigns to combat and prevent child sexual exploitation in New Zealand.
    • DIA re-launched a programme of safe to fail trials to prevent online child sexual exploitation and abuse in May 2020. This has expanded to include a wider set of government agencies (e.g. Accident Compensation Corporation, MSD, MOE) and NGOs.
  3. Online Safety Awareness Campaign 2020
    • Please refer to issue 15(b).

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Footnotes

  1. Sections 3, 3(2), 123(1)(d), 124(1)(a), 131 and 131A FVPCA in particular. Return to text