The Dark Side of Paradise

I am drawn to his pale complexion and the large indents that run down the right side of his face, looking like the remnants of the removal of skin cancers. He is bespectacled, with thinning red hair, and dressed in black jeans with his T-shirt tightly tucked in and secured with a belt.

I am drawn to his silent, lonely presence as he surveys the fellow Denpasar travellers around him at Departure Gate 18, Melbourne Airport. The seating area is littered with families kitted out in their surfing attire and young couples soon to experience their first romantic overseas getaway. He is at odds with his surroundings—and he seems to know it. A call goes over the loudspeaker and travellers eagerly take their place in the queue with their passport and boarding pass in hand.

The tyres hit the runway and the smell of South-East Asia is upon me. It is a mixture of humidity, steamed rice, exotic fruits and the busyness of the main hubs. On alighting the plane, I make my way to the visa control checkpoint. The sole, older male traveller is before me. There are no real complications heading into the checkpoint at Denpasar airport. The US$35 fee is paid and a thirty-day visa is granted on the spot. It is merely a quick contractual exchange of money for a sticker in order to move through the pressing rows of people. The immigration officers do not question or probe regarding one’s movements and intentions for one’s stay in Indonesia. The sole, older male traveller is through and once burdened by his luggage is lost in the haze of the humidity and the smell of rice and exotic fruits.

A couple of days later, I sit in a Balinese café with the dulcet tones of Michael Bublé’s “Home” weaving its way through the endless drones of the motorcycles, the whirring fans and the happy, chatty Balinese men pouring the coffee. “I feel like I am just living someone else’s life,” croons Buble. For many Australians, Bali is a momentary escape from the humdrum of life, a wonderland where the living symbol of heaven on earth, man and gods, nature and spirits, the within and the without, connect and co-exist harmoniously in a place of earthly paradise. Bali, meaning “offerings”, is a quick getaway across the Banda Sea where most Australians surf, shop, soak up the sun and drink the night away in their Bintang singlets.

But for some older Australian men, Bali has another offering—it is known as the “paradise of paedophiles”. Call it profiling? Perhaps it is. Or shall we call it what it is, what we see and what we internally question about the older, lone male traveller in Bali? This is the cast, and that is the fit. The more often I travel to Bali, the more prevalent such men become—unrestricted in their escapades among the primitive Balinese villages.

A quick glance at a sex-holiday website under the tab, “Indonesian guide”, informs such men that they can retain the sexual services of a schoolgirl every day of the week between 10 a.m. and 7 p.m. for US$20 to $40 and not need to worry about the impeding use of condoms because the “girls are generally easy going and don’t ask to use [them]”, nor has Indonesia “run anti-HIV campaigns for years or [taken] proactive action in educating the population about sex risks”.

Bali is now the number-one destination in the transnational market for Australian men seeking the sexual services of children. Or, stating it as it is—partaking in child prostitution. The most comprehensive report on human trafficking from the US Department of State states that Australian men are one of the most active groups in child sex tourism. Even more alarming is the number of convicted Australian child sex offenders that fly into Denpasar to wreak their guilty pleasures on the most vulnerable children in some of the poorest villages in Bali. Some of these convicted child sex offenders are known to travel to Bali several times a year, for several weeks at a time. In 2011, one quarter of offenders on the Australian National Child Offender Register travelled to Bali knowing that they could prey on children with little fear of prosecution in Indonesia, and also because the Australian laws designed to stop them are failing.

In Indonesia, child molestation is a punishable crime under Law Number 23 Year 2002 on Children Protection. According to Article 81 and 82 of this law, any individual who through deliberate use or threat of violence or tricks, lies or ruses, persuades a child to partake in indecent behaviour or sexual intercourse, is subject to three to fifteen years of imprisonment, as well as a 60 to 300 million rupiah fine (A$6000 to $30,000). Despite this law, arrest and punishment of the perpetrators rarely take place, because there is a lack of seriousness in Indonesian government and law enforcement bodies to tackle child exploitation. And of course, the paramount principle of the “best interests of the child” is easily ground down under the wheels of corruption.

There is also a reluctance on the part of victims and their families to report their cases and to testify against the perpetrators. The children and their families are often vulnerable to threats and bribes from adults trying to convince them not to report the abuses. Sadly, there is also often a dependence on the perpetrator, who has spent time grooming the family and the child (or children) with charity. After the tsunami of December 26, 2004, paedophiles entered Indonesia in their droves to prey on the most vulnerable at their time of greatest vulnerability. Twenty convicted Australian paedophiles tried to travel to Indonesia at this time.

It is the role of the Australian Federal Police (AFP) to inform the receiving country when an Australian convicted child sex offender will be arriving at its immigration desks. It then becomes the decision of the receiving country whether or not to allow the Australian offender into their country. Unfortunately, the receiving countries are often under-resourced and also lack the training to deal with the incoming information.

Australia has specific obligations to protect children worldwide from the actions of its citizens because it is a state party to the United Nations Convention on the Rights of the Child (CRC) and has acceded to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography of 2000, which mandates extraterritorial criminalisation of the commercial sexual exploitation of children (Articles 3 and 4). In response to the CRC, which Australia ratified in December 1990, the Commonwealth Parliament in 1994 passed the Crimes (Child Sex Tourism) Amendment Act. The principal aim of this Act was to provide a “real and forceful deterrent to the sexual abuse of children outside of Australia by Australian citizens and residents”. The Act introduced a new section, Part IIIA Child Sex Tourism, into the Crimes Act. This legislation was intended to cover a wide range of sexual activities committed overseas with children under the age of sixteen. The rationale behind the Act was that the perpetrators of child sex offences that occur overseas should not escape justice. This Act was amended in 2001, and in 2006 the High Court in XYZ v Commonwealth held that the offences were supported by the external affairs power in section 51 (xxix) of the Constitution.

Further, the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 added a new range of offences and moved all the offences into the Criminal Code. This Act is intended to be more pre-emptive in its prosecution of offences and well before any risk of harm to a child arises, with grooming of families or victims being a noted tactic of perpetrators.

The Australian laws are not intended to be used unless there is an inability or unwillingness of the law enforcement authorities in the destination country to prosecute the matter.

Whilst extraterritorial laws are an essential part of international efforts to combat child sex tourism, and Australia’s legislation does set about to meet its international obligations, it is questionable whether this approach is resulting in proactive enforcement and the prosecution of criminal activities. Since the legislation has been in place, there have been some successful prosecutions. Between 1994 and 2011 more than thirty people were charged in Australia with child sex tourism offences that occurred overseas, with approximately 70 per cent of these charges leading to successful prosecutions. However, that is only an average of two Australians a year. There can be no doubting that the small number of prosecutions represents only a small fraction of the actual criminal activity.

There are also many implicit evidentiary challenges. It is often difficult to: obtain and rely on evidence that is collected overseas; co-operate with the local law enforcement agencies; obtain testimony of victims and witnesses overseas; recognise and moderate according to the culture, education and level of sophistication of the child witness; overcome issues of translation and treatment of child witnesses in the witness box; prove the age of the child, especially if the child is homeless or has no official birth record.

Given these challenges and the pattern of prosecutions, more must be done within Australia to stop convicted child sex offenders from departing from Australia and travelling to known child-sex-tourism locations. Currently, the Minister for Foreign Affairs has the power pursuant to sections 14(1) and 22(2)(d) of the Australian Passports Act 2005 to cancel or refuse to renew an Australian passport if it is suspected on reasonable grounds that the person would be likely to engage in conduct that, inter alia, might endanger the health or physical safety of other persons; or might constitute one or more indictable offences against a law of the Commonwealth, being offences specified in a minister’s determination, namely offences relating to child sex tourism. It is the role of the AFP to provide the necessary information to the Minister for Foreign Affairs in order for the minister to make a decision.

The case of Paul Thompson and Minister for Foreign Affairs and Trade [2007] AATA 1244 exemplifies this process in motion. The Commissioner of the AFP requested that the Minister for Foreign Affairs cancel Thompson’s passport and refuse to reissue him with a subsequent passport. The adjudicator of the Administrative Appeals Tribunal had the task of determining whether there were reasonable grounds for the AFP to suspect that Thompson would be likely to engage in sexual conduct with children overseas.

Thompson had an appalling criminal history. From an early age he had engaged in aberrant behaviour, which included exhibitionism and indecent touching of male persons, generally young males. From 1971 to 1978 he was charged with offences variously described as “indecent exposure” and “wilful or obscene exposure” and received a range of sentences. In February 1991 in Western Australia he was convicted by his own plea of seven counts of aggravated indecent assault on victims over the age of thirteen and under the age of sixteen. A sentence of two years and eight months imprisonment was imposed. However, in November 1991, Thompson escaped from custody and only came to the attention of the authorities in December 1996 when he was convicted in Darwin for a string of offences, including one count of indecently dealing with a child under the age of fifteen. For this crime, he was sentenced to approximately one year in prison. As a consequence of these convictions, Thompson became known as a “reportable offender” within the Community Protection (Offender Reporting) Act 2004 (WA) and must, therefore, report until July 2020 any intended travel out of Australia to the Commissioner of Police.

Yet, in 1998, Thompson left Australia for Indonesia, principally Bali. Whilst in Bali, Thompson worked as a trainer at the Bali International Cricket Club, for little financial reward. During the hearing, Thompson relied on evidence from Australian expats in Bali, who spoke of Thompson being supportive of “young local players and their families”, even supporting the medical assistance for a local player’s father’s illness. In February 2004 he was deported to Australia, having been arrested in Bali for immigration offences.

In December 2005 Thompson was issued an Australian passport and in February 2006 flew to Singapore. His departure from Australia did not come to the attention of the authorities until April 2006, by which time he was in Thailand. Thompson worked as a teacher in Thailand, but was allegedly dismissed for “touching and grabbing boys”. In July 2006 his passport was cancelled and he was arrested in Thailand and deported to Australia.

The AFP argued that Thompson’s criminal history and conduct when considered together constituted reasonable grounds for suspecting that the applicant, if issued a passport, would be likely to engage in child sex tourism. However, the adjudicator gave much weight to the conclusion that “there [is] no evidence whatsoever that since at least 1998 the applicant [had] engaged in the type of sexual misconduct that previously characterised his life” and was therefore satisfied that it was unlikely that Thompson would reoffend if issued with a passport. As a result, the adjudicator set aside the decision of the Minister for Foreign Affairs to cancel Thompson’s passport. He also set aside the decision to refuse to reissue a subsequent passport.

In the adjudicator’s closing paragraph, he cautioned Thompson that the AFP has the authority to make a refusal or cancellation request again in the future if evidence emerges that Thompson had in fact engaged in child sex offences since 1998. Such a power of the AFP is not spent; it is capable of being re-exercised.

Was the adjudicator’s caution enough? Is it enough protection for the victimised—the children—to hold that because a man has not being caught committing such heinous offences since 1998 he will not do it again, or has not done it again? Even though his known criminal history spans over twenty-seven years? And that he has spent years in two well-known child-sex-tourism destinations in South-East Asia? What does it take for Australia to adopt a hard-line approach and cancel the passports of all convicted child sex offenders? In child sex offences the victims are the most innocent of all, and therefore the convicted offenders’ rights should be limited.

The issue becomes more problematic when we consider those men who have not been convicted of child sex offences, but who clearly display a penchant for such behaviour—the lone, older male traveller throughout Bali. Given that the courts seem reluctant to cancel passports of known convicted child sex offenders because it “is a serious constraint upon the ordinary freedoms of citizens”, it seems even less likely that the courts will cancel the passports of such Australian men. This was represented in the case of Dale Massey and Minister for Foreign Affairs [2010] AATA 290.

In Dale Massey, the AFP requested that the Minister for Foreign Affairs cancel Massey’s passport for the same reasons given in Paul Thompson. The adjudicator noted in this case that the condition for the exercise of the AFP’s discretion, and the decision of the tribunal, does not require proof that Massey has engaged or will engage in child sex tourism offences. Rather, the condition is the suspicion that a person is likely to engage in the conduct, and this is satisfied if there is a real, not merely remote, possibility that the person will do so. Massey’s case was littered with items of evidence that remarkably led the adjudicator to set aside the minister’s decision to cancel his passport. The evidence included:

• A 1993 Customs Report detailing the contents of Massey’s luggage on his arrival at Perth Airport after a fifty-day stay in the Philippines. The luggage included; photographs of Filipino girls under the age of sixteen, if not younger still; and condoms and Vaseline.

• In April 2008 on his arrival at Sydney Airport from Santiago, a routine baggage check revealed: Viagra; condoms; small handcuffs suitable to fit a child; a small lady finger vibrator; a small handbook with handwritten notes on the costs to buy a child and prices of hotel rooms; and printed documents accessed on the internet regarding the commercial sexual exploitation of children. Further, in Massey’s possession was a camera film, which later revealed a photograph of a young girl sitting on a bed, apparently crying and holding money.

• Massey’s travel movements showed he travelled widely from November 1991 to December 2008, having thirty-six travel movements in that period, including well-known child-sex-tourism destinations: Cambodia, Vietnam, China and Brazil.

• In 2008, Massey visited the Orchid Inn in the Philippines, a place well documented as a place where tourists go for cheap sex, often with children.

• A search warrant in 2008 revealed some of the following items in Massey’s storage unit: newspaper articles on child prostitution; zebra fabric handcuffs; and a number of photograph albums containing many photographs of Asian children taken since 1991.

In coming to his conclusion to reinstate Massey’s passport, the adjudicator held that there was no evidence on reasonable grounds to give rise to a suspicion that Massey would be likely to engage in child sex tourism if he were granted a passport, and that each item of evidence taken individually did not mean that Massey had committed or would commit such crimes. The adjudicator stated that the suspicion was only remote due to the absence of evidence that would create “a real possibility of engagement” in child sex tourism.

But is the test of remoteness enough to protect the children when obtaining evidence from overseas is fraught with difficulties? Surely, the evidence in the Dale Massey case, when put together, portrays questionable behaviour that should be stopped from exhibiting itself overseas? And there are further cases of its kind.

I take the hotel car to the airport. My stay in Bali is complete. On the route there, my driver comes to a busy intersection and we are drawn to a halt. My attention is soon averted by the wailing of a child. In the gutter sits a Balinese boy with his baby brother in his arms. The boy is crying and screaming in Bahasa Indonesia. I ask my driver for a translation, to which he promptly replies: “He is calling for his mother because she has left them. It is very sad.”

The compounding impact of crippling poverty, the Indonesian government and its authorities turning a blind eye, and the embedded culture of corruption, means that the most vulnerable, and the most voiceless, of the world’s population—children—endure the most depraved acts done to them by some of Australia’s men. Yet the response in Australia is usually impassioned outrage delivered through the media, rather than an approach that is consistent, persistent and delivered with concerned consideration about what must be done in Australia to limit the freedom of movement of such men.

The sexual abuse of children must be pursued with the utmost diligence. The prevention of such abuse is paramount in enabling every child of every country to lead a life that is in their best interest. One sure measure to combat the recurrence of these crimes in South-East Asia is automatically to cancel the passports of convicted child sex offenders, because when such Australian men leave our shores they cannot be monitored, and a child’s life is worth more than this—surely?

And what of the lone, older male traveller to Bali? Some men show a penchant for regular travel to child-sex-tourism destinations. There must be more tracking of regular travel movements, questioning these men upon their departure from and arrival in Australia, and consistent luggage checks. Action in Australia and the continuing education of enforcement in Indonesia are essential if we are to break the cycle of sexual abuse committed by some Australian men on Balinese children.