Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016 on behalf of the opposition. It is nearly 10 years since 15-year-old Carly Ryan was tragically murdered by a 47-year-old man who lied about his identity, including his age, in order to groom underage girls. Carly met her murderer online. Like millions of young Australians, Carly was an avid internet user, and in 2006 at the age of 14 started chatting with someone she thought was a 20-year-old musician named Brandon Kane. Tragically, Brandon Kane was not a real person but one of many alternative identities of Gary Newman, an online sexual predator who had a complex web of online alter egos that he used to groom underage girls. Carly was the first Australian girl to be murdered by an online predator. I will not go into the details of Carly's tragic murder, beyond saying that Newman lied about his age to Carly to gain her trust, and then abused her trust and outgoing nature in the most sickening way. As a parent, there would be nothing worse than losing your beautiful child, let alone in this horrific way.

Since Carly's tragic murder, her mother, Sonya Ryan, has advocated for the act of an adult lying about their age to a person under the age of 16 to be criminalised. I acknowledge the tireless effort of Sonya Ryan and of her Carly Ryan Foundation to pursue improved legal protections for children in our community. I have not for a second doubted that the work and the intentions of the Carly Ryan Foundation are sincere and aimed solely at protecting girls and boys like Carly. The Carly Ryan Foundation, run by Sonya, has become an effective advocacy organisation for cyber safety, and has online fact sheets and counselling services to reduce the harm of online bullying and predatory behaviour. Sonya Ryan is a great Australian, fighting for the protection of Australian children. That is to be commended. I know she is in the chamber today and I welcome her to this place.

Labor understands that keeping children safe online is a real concern for countless Australian families. The advent of online technology platforms has changed the world of policing and, tragically, has changed the way that predators target vulnerable children. Many parents do not understand how to access or monitor the internet usage of their children, making it much harder for parents to protect their children from the attention of creeps and criminals.

Labor understands the online world is the preferred place of paedophiles to groom children. The internet, while not a lawless realm, is one that often operates outside traditional social structures and provides opportunities for those who would choose to misrepresent their life and identity to impressionable children in a way that the pre-internet age did not. Subsequently, laws relating to this kind of misrepresentation need to evolve to meet the challenges of the internet age. The protection of children should be the top priority of any government. As a parliament we must consider how to best protect the millions of Australian children who use the internet every day. It is clear that there are people out there who choose to misrepresent their identity, including their age, to manipulate young Australians. We must do everything that we can to protect our children from these people.

There are many laws that seek to protect young people online, but we know that these laws sometimes do not do what they need to do to protect children like Carly Ryan. The law failed Carly, and that is a tragedy. It is worth our examination on how we can do better. I would like to acknowledge the work that Senator Xenophon and Senator Kakoschke-Moore have done to achieve this goal. Like all of us here, they are working to ensure that Australia is a better, safer place, particularly for Australian children and future generations.

I can assure Sonya Ryan that Labor has the same interests at heart. There is nothing more important than protecting our children. It is the most basic and primal instinct to do whatever must be done to protect your family. Labor will consult with Senator Xenophon, Senator Kakoschke-Moore and others and work with the law enforcement agencies to determine what laws are required to meet the challenge of online predatory behaviour.

This bill, Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016, seeks to amend the Criminal Code Act 1995 to make it an offence for a person who is over 18 years of age to misrepresent their age to a person they reasonably believe to be under 16 years of age for the purpose of encouraging a physical meeting or with intent of committing an offence. The current version of the bill—introduced by Senator Kakoschke-Moore on Wednesday, 12 October 2016—is the fourth iteration of this bill. The three previous iterations of the bill were introduced by Senator Xenophon. It is clear by the long history of this bill that Senator Xenophon and his team are firmly dedicated to achieving justice for Carly Ryan and are committed to ensuring that such tragic circumstances be prevented in the future.

The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 was introduced in February 2010. It was the subject of a report by the Legal and Constitutional Affairs Legislation Committee tabled in June 2010, which recommended that the Senate should not pass the bill. The bill then lapsed at the end of the 42nd Parliament in September 2010. The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 was then introduced in February 2013 and was the subject of an inquiry by the Legal and Constitutional Affairs Legislation Committee, with a report tabled in June 2013. The inquiry recommended that the Senate not pass the bill. This bill then lapsed at the end of the 43rd Parliament in November 2013. The bill was then reintroduced in December 2013 in a substantially similar form to the first version of the 2013 bill. The main difference between that bill and this bill deals with intentional misrepresentation of age to persons less than 16 years of age, rather than 18 years of age in the first version of the bill. This change was made because 16 years is consistent with the age of sexual consent in the majority of Australian states and territories.

This bill was the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee, with the report tabled in August 2015. The inquiry recommended:

… that further consultation is conducted on the Bill prior to its consideration by the Senate.

This current bill, which is identical to the third version of the bill, is currently the subject of the debate. The second reading speech introducing the bill, as Senator Kakoschke-Moore stated, said that new forms of communications mean we need new laws to protect our children. Research conducted by the eSafety commissioner showed that teenagers spent 33 hours per week online outside of school. In cyberspace, we cannot stand beside them as they explore the world. We cannot always set rules and curfews, because our kids can be sitting safe in their rooms even when they are in danger.

This bill is an attempt to address some of the techniques used by online predators, so that we can put additional safeguards in place for our children. Labor supports the intention of the bill, namely to protect minors from online predators. We believe that this bill is a worthy attempt, and that is why Labor is engaging in consultation with Senator Kakoschke-Moore and Senator Xenophon. The safety of young people online is an issue of utmost importance, and requires a careful and considered policy response.

The object of the bill is to protect minors from predatory online behaviour by adults. The bill proposes amendments to the Criminal Code which create offences relating to the use of a carriage service with the intention of misrepresenting age. Proposed new section 474.40 would create two offences for a person over the age of 18—the sender—to intentionally misrepresent their age, using a carriage service, to a person who is or who the sender believes to be under 16 years of age—the recipient—for the purposes of encouraging the recipient to physically meet with the sender or another person, or with the intention of committing an offence other than the offences proposed under the new section. Both offences would be punishable by a term of imprisonment: five years where the intent was to encourage a physical meeting; eight years where the intent was to commit an offence.

In its most recent report on this bill, the Senate Legal and Constitutional Affairs Legislation Committee acknowledged:

… 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 in the Criminal Code Act 1995 and that the offence provisions in the Bill may be too broad. In light of these concerns, the committee considers 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 underpinning the Bill.

The majority of submitters and witnesses to the committee's inquiry into the bill were supportive of the intention behind it, but were not supportive of the approach taken and raised concerns about the formulation of the bill. In particular, many were of the view that the bill is unnecessary in light of existing offences in the Criminal Code that address the targeting of minors by sexual predators online—namely, the offences of procurement, grooming, and using a telecommunications network to commit a serious offence. However, the current offences relating to grooming and procurement both require an element of sexual intent on the part of the adult in order for the offences to be made out.

Sonya Ryan, the director of the Carly Ryan Foundation, has argued that removing the requirement to prove sexual intent is necessary to counter more sophisticated strategies that are now being used by online predators. Further, Susan McLean, a cybersafety expert with more than 20 years' experience working for Victoria Police, agreed that in her experience 'there have been situations in which police were unable to act because the behaviour of the suspects fell short of improving the element of sexual intent in the existing offences'. However, the Australian Federal Police did not share this concern, and said that there is already potential for law enforcement to initiate operations to disrupt potential offenders, even before sexual intent has been shown.

There were also concerns raised about the breadth of the bill's scope and the danger that it could unintentionally catch behaviour that should not be deemed criminal. The Attorney-General's Department, for instance, raised concerns that an 18½-year-old could misrepresent their age to a 16-year-old in an attempt to gain an invite to a birthday party. I think we can all agree that we would not want to see this kind of behaviour criminalised. It is a challenge, in broadening the Criminal Code in this way to remove the need for police to prove sexual intent before intervening in a potential online predator case, to ensure that unintended consequences like this are not created. We encourage further consideration as to how this might be achieved.

We need to ensure that our laws are best suited to protecting minors from online predators and that the police have the powers to investigate and respond without creating unintended consequences. We are confident that a position can be reached on this bill which ensures that minors are protected from online predators while also ensuring that our response to this issue is the most appropriate response.

We have a number of concerns with the bill as it stands, but we are confident that they can be worked through. As recommended by the most recent committee report on this bill, we are engaging in consultation on the bill in the hope that we can find an appropriate means of achieving the objective of the bill. We have been in discussion with the Nick Xenophon Team, and we are looking for ways to work cooperatively to see how its aims can best be achieved. This consultation process needs to focus on whether there are actually any gaps within the current procurement and grooming offences that already exist to protect minors from online predators and on how these gaps might best be addressed. It is important that we leave no stone unturned in the never-ending battle to keep our children safe. Carly's death has exposed a loophole in the law, and we should look at how we can close it. Labor looks forward to continuing to work productively with the Nick Xenophon Team on this bill.