Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016 - Second Reading


Senator IAN MACDONALD (Queensland) (10:01): Like all in this chamber and, I am sure, all Australians, I was deeply saddened by the case of Carly Ryan. The safety of young people online is vital, and the government shares the community's concern about their safety. I appreciate the efforts in the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016 and previous iterations of the bill to address some of the issues. As Senator Farrell mentioned, this is the third version of this bill, which seeks to prohibit an adult misrepresenting their age to a minor to arrange a meeting. Previous versions of the bill have been subject to two Senate inquiries, the latter of which was an inquiry by a committee which I chair, and I will refer to the results of that inquiry a little more fully later on. The current bill addresses some of the concerns raised by my committee in its hearings and also raised by the government in its submission to that inquiry.

So I welcome the changes that Senator Xenophon has introduced in this bill, and I appreciate his willingness to overcome some of the concerns which have been raised with the bill. However, having said that, I say that the version of the bill before us today still needs further work. The proposed offences may have unintended consequences and risk criminalising conduct not warranting such sanction. The government is in discussions with Senator Xenophon on how the bill might be amended to address these matters, and I understand that Senator Brandis is meeting with Senator Xenophon later today to see if these issues can be addressed.

Currently there are strong existing Commonwealth laws to protect children from adults seeking sexual relationships or seeking to cause them harm online. Child sex related offences carry penalties of between 12 and 15 years imprisonment. Some say that perhaps that is not even long enough. These are horrendous crimes. The grooming offence is in section 474.27 and that captures any communications that make it easier to procure a child to engage in sexual activity with the sender. This enables prosecution prior to any physical contact. Section 474.14 makes it an offence to communicate online with the intention of committing any other kind of serious offence. This offence is punishable by a penalty applicable to serious offences—for example, life imprisonment for an intention to commit murder.

Since Carly's tragic death some years ago, there have been amendments introduced to try to address that and other issues. In 2010, the child sex related offences in the Criminal Code were reviewed and amended to ensure that they are comprehensive and deal with all contemporary forms of offending. For example, the grooming offences were amended to remove the requirement on online communication containing material that is indecent in recognition of the fact that grooming exchanges often involve platonic and so-called innocent exchanges. The government has introduced a number of significant initiatives to empower parents and children to explore the online world safely. In 2009, the Australian Federal Police established the ThinkUKnow program that provides cyber safety education to parents, carers and teachers. ThinkUKnow presentations are delivered to parents, carers and teachers by trained law enforcement and industry volunteers in schools and organisations across Australia. In 2015-16, the program delivered more than one presentation each day of the year—a total of 386—to more than 10,000 parents, carers and teachers. This is work by the Federal Police to try to make everyone aware of the dangers involved with some online exploitation. Presentations by the AFP cover online grooming, sexting, privacy, inappropriate online behaviours, identity theft and fraud, and general online safety.

In 2015, the Australian government passed the Enhancing Online Safety for Children Act, which led to the establishment of the Office of the Children's eSafety Commissioner. Over a period of time, many senators have had briefings from the commissioner. This office provides online safety education and advice for Australian children and young people and operates a complaints service for young people who experience serious cyberbullying. The Australian government consulted a wide range of online safety experts in the development of this legislation and it continues to host meetings of the Online Safety Consultative Working Group, which is chaired by the Children's eSafety Commissioner. The Australian government has provided some $10 million in funding to implement its enhancing online safety for children policy, including $7½ million to allow schools to access accredited online safety programs, $2.4 million to establish and operate the Office of the Children's eSafety Commissioner and $100,000 to support Australian based research and information campaigns on online safety.

I am pleased to report that in its first year of operation the eSafety Commissioner resolved 186 serious cyberbullying complaints. The commissioner educated more than 130,000 people via the virtual classrooms and face-to-face presentations. The commissioner conducted over 11,000 investigations into illegal and offensive online content and worked with international partners to remove more than 7,400 URLs of child sexual abuse material. The commissioner also certified 22 online safety program providers, with 108 presenters delivering programs in schools. The commission also handled over 2,900 email and telephone inquiries for help, and established the iParent site to provide online safety advice to parents and carers, and the eSafetyWomen site to help women manage technology risks, as part of the Australian government's Women's Safety Package to Stop the Violence.

I will mention shortly some highlights from the statistics in the last quarterly report of the new Children's eSafety Commissioner. In doing so, I am hopeful that anyone who might be listening to this debate, any parents or carers, might be aware—perhaps this debate might emphasise it to them—of the existence of the eSafety commissioner, who should be contacted whenever parents or carers have any concern about the online safety of children.

In the last quarterly report, for the period July-September 2016, the eSafety office noted that it had dealt with 70 serious cyberbullying complaints, a 75 per cent increase compared with the same period last year. I am hopeful that that statistic means that more people know about the eSafety office and so they have reported more. I hope it does not mean that there has been a 75 per cent increase in cyberbullying across the board. One would hope that it is the former explanation and that, as the work of the eSafety office and the commissioner become better known, people are prepared to make complaints or to make contact with the eSafety office to get assistance.

For the last quarter the commission also conducted research which showed that close to one in five teens experienced some form of cyberbullying in the 12 months to June 2016. It found that teenagers spend on average 33 hours per week online outside of school. That is a rather amazing, and perhaps even concerning, statistic. The eSafety commissioner's office also trained more than 600 frontline professionals across every state and territory to help women who were experiencing tech-facilitated abuse.

I want to get to the bill before us, but in the form of the previous bill that came before this parliament and which was considered by the committee. Several submitters and witnesses to our last inquiry expressed the view that the proposed offences in the bill are unnecessary in the light of existing offences in the Criminal Code that address the targeting of minors by sexual predators online, namely, as I mentioned before: section 474.26, which is the offence of procurement; section 474.27, which is the offence of grooming; and section 474.14, which is the offence of using a telecommunications network with the intention to commit a serious offence. The Attorney-General's Department made a submission to that inquiry stating that the Criminal Code already criminalises online communications with children where there is evidence of an intention to engage in sexual activity with a child or otherwise cause harm to the child. In its submission to that inquiry, the ACT government highlighted that, for example, the existing grooming offence does not require proof that the communication be indecent, and so would appear to capture a communication in which the adult misrepresents their age.

Furthermore, Sonya Ryan, who Senator Farrell mentioned in his contribution just before me and who is the director of the Carly Ryan Foundation, argued that there were issues to be involved. She said in her evidence, 'The problem is that a predator will take quite a bit of time to groom a child without showing any sexual intent. That is what we have found through the work which we are doing. By the time the child agrees to meet the predator face to face, he or she no longer thinks that that person is a stranger.' What they were seeking, they said in their submission, 'was to add to this law to address the common denominator in the way the online predators behave. They all set up false online profiles, and most reduce their age online to present as a peer to the child with the intention to meet that child.' The idea of this law is to prevent the sexual act happening to a child, therefore preventing a potential trauma to a child which obviously can cause lifelong problems to a young person.

Another cybersafety expert giving evidence to the committee had 20 years experience with Victoria Police and said that there have been situations in which the police were unable to act, because the behaviour of suspects fell short of proving the element of sexual intent in the existing offence. Several submitters to that inquiry argued that the proposed offenders in that bill—particularly the proposed section 474.40, in relation to encouraging a physical meeting, are drafted too broadly. The overriding concern expressed was that the proposed offence in the bill would wrongly criminalise behaviour that is not inherently criminal. The New South Wales Council for Civil Liberties made certain submissions in relation to that.

The Attorney-General's Department in its submission to the inquiry restated its position that the breadth of the activity covered by the proposed offences goes beyond the accepted limits of criminal responsibility and represents a departure from the existing Commonwealth criminal law.

The recommendation of our committee—and there were other elements, and anyone interested in this debate who has not already done so might usefully have a look at the committee's report into the previous legislation—was that 'the safety of young people online is an issue of the utmost importance and one that requires careful and considered policy responses.' The committee supported the intent of the bill in aiming to protect minors from online predators. The committee did note, however, that some minor amendments had been made to the bill compared with the previous version of the bill, which the committee examined and reported on in June 2013. The committee did acknowledge, however, that some stakeholders to the inquiry raised concerns in relation to the bill, particularly that it may not be necessary in view of existing offences under the Criminal Code and that the offences provision in the bill may be too broad. In light of those concerns, the committee considered that further consultation should be undertaken in relation to the bill to determine whether it is the best available means of meeting the policy intent underlying the bill. The committee accordingly recommended to the Senate that further consultation be conducted on the bill prior to its consideration by the Senate.

All credit to Senator Xenophon. There were further considerations. Senator Xenophon in this bill before us today actually addressed some of the issues that were raised in the committee's report and in the evidence to the committee. However, there is still a concern in the government. As I said right at the beginning, everybody agrees that everything should be done to prevent the tragic circumstances that befell Carly Ryan, but it has to be done properly. To that end, as I think I mentioned before and as perhaps Senator Xenophon also mentioned, there are further consultations happening this afternoon to try to get the right balance on this bill so that it does everything possible to protect minors from online predators but at the same time takes note of the normal civil liberties and the presumption of innocence that are the hallmarks of the legal system in a democracy like Australia's. I am hopeful that this bill, whilst perhaps not being passed in its present form, will be negotiated to a state where it can receive support from all the chamber. I note that the Labor Party, who spoke just before me, have a similar position in that they want to do everything possible to protect minors from online predators and look after the safety of children. But it does need some refinement and I am hopeful that that will happen.

At the moment I would caution that the bill perhaps should not be passed in this sitting of the parliament. But we should keep talking about it, to get the right balance so that some further laws can be implemented to protect young people, in particular online.

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