Senate debates

Thursday, 27 June 2013


Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013; Second Reading

5:30 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

It is with a great sense of privilege but also great sadness that I rise to speak on this bill today. It is a bill that I introduced several months ago. This is the second iteration of a bill to deal with what I and many others in the community believe is a very serious issue. Imagine this: you are the parent of a 14-year-old girl and she has been chatting online with a 20-year-old young man for months. From the photos online and what appear to be live feeds he is good-looking, charming, funny and a musician—except everything about this person is a lie. He is in fact a 47-year-old paedophile and, up until now, everything he has done is perfectly legal because under current online predator laws police need to actually prove the adult is grooming the child for a sexual purpose. So under our laws this online lying to a child does not matter even if a predator attempts to meet that child.

I believe it should matter. I believe the law should change. That is why I have introduced this legislation—the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013. I wish we did not need the provisions of this bill but, tragically, we do. My South Australian colleagues in particular will be familiar with Carly Ryan's story. In February 2007 15-year-old Carly Ryan, a beautiful vivacious young girl, was brutally assaulted and left to die at Horseshoe Bay in South Australia. When reports of her death were released, the entire state of South Australia and, indeed, the nation were shocked that such a beautiful young woman could be so brutally murdered. We asked each other what kind of monster could do this, and then we found out. Garry Francis Newman was a 47-year-old internet predator who had a history of trying to track young girls online. Police later found that he had over 200 fake online identities. To Carly he represented himself as 20-year-old musician Brandon Kane, and Carly fell in love with this fictitious character. That night at Horseshoe Bay she thought she was finally going to meet her online boyfriend in the flesh. Instead, a man who had taken advantage of her trust and innocence took her life. When police tracked Newman down 11 days after Carly's murder he was logged on to his computer as Brandon Kane and chatting to another 14-year-old girl in Western Australia. It should be said that after a long and dramatic trial for Carly Ryan's family Gary Francis Newman is now serving a life sentence for Carly's murder.

I acknowledge that we already have online grooming laws in Australia, but we do not have anything to directly address the situation where an adult lies about their age to a child online for the purpose of encouraging that child to meet them in person. Because the current laws are too narrow, our enforcement authorities have one hand tied behind their back in the sense that they need to prove that the intention to meet that child is for a sexual purpose. I think that is simply too narrow. There ought to be an offence, albeit a lesser offence but an offence nonetheless, that can allow the police to act and intervene at an early stage to prevent harm being caused. The bill also includes a provision to make it an offence for an adult to misrepresent their age with the intent of committing any other offences.

I previously attempted to address this serious issue in 2010 with the earlier version of this bill. I acknowledge the concerns raised in relation to that bill. Effectively, what that bill said was that, if you lied about your age to a minor online, that itself was the offence. I acknowledge that that was too broad, even though you would have to wonder why an adult would consciously and deliberately lie about their age in communicating with a child. Unfortunately at the time the then South Australian Police Commissioner Mal Hyde said the proposed legislation cast the net too widely. Instead of acknowledging the problem, then Commissioner Hyde, in a submission to a Senate inquiry, narrowly focused on 'unintended consequences' of 'humorous, innocent and erroneous transmissions' that would, if legislation were to be passed, be a breach of the law. I think Commissioner Hyde and other law enforcement officers have not quite got it. This is about protecting children. This is about understanding and acknowledging that if an adult lies about their age to a child via online communications and wants to meet that child that itself should be an offence. You should not need to prove the sexual grooming aspects which make the legislation, I think, problematic. It means that there are enormous resources undertaken to catch these predators when we could actually intervene at a much earlier stage.

This bill was introduced this year with the encouragement and support of Sonya Ryan, Carly's mother. I want to pay tribute to the work that Sonya Ryan has done. Some people when they go through the terrible experience of losing their child—the worst of all possible experiences—crawl into a hole and just forget about life. She could have done that, but instead she fought back. She said she wanted to warn others about this. I have seen the video presentations that she gives at schools. Because they understand that it is a real experience, that it is not just some theoretical issue, the children who listen to Sonya's presentation are absolutely transfixed. They are mesmerised by what she has to say. They understand the whole of the detail of the danger. They understand what it can mean to be the subject of an online predator and what it meant in Carly's case. It is tremendous work that she is doing on an absolute shoestring—the Carly Ryan Foundation operates from Carly's old bedroom. I have been there. It is a fitting memorial and a loving memorial to the life of Carly Ryan. They get literally dozens and dozens of calls each week—thousands of messages each year—from people wanting advice: from parents and from children who do not want to approach their parents because they are scared that there will be some sanctions against them. There are so many cases that have been referred to the law enforcement authorities. There is close cooperation between the Carly Ryan Foundation and those law enforcement authorities. Just a few weeks ago, I was part of a meeting with SAPOL, the South Australian police, in relation to the work that Sonya is doing on behalf of the Carly Ryan Foundation.

I should say that at the beginning of this year Sonya Ryan was named South Australian of the Year and was one of the finalists for Australian of the Year for her tremendous work. It is a richly deserved award. Sonya Ryan believes that in addition to the advocacy work they do, the support they give to parents and children alike and the work that she does amongst schools and the general community the law needs to be changed in order to deal with this serious issue.

I know that further concerns were raised during the committee inquiry into this bill, particularly in relation to the ages specified in the bill and the use of absolute liability provisions. The Attorney-General's Department, in particular, stated their belief that the age provisions and the definition of what constitutes a minor in my bill are not consistent with other Commonwealth criminal law. In the bill as it stands a minor is considered to be someone under 18. However, as the department pointed out, the age of consent is usually set at 16 in Commonwealth criminal law.

The department also stated their concerns about the use of absolute liability provisions in relation to prosecuting an offence under this bill. I have circulated amendments to address these concerns. This is an example of why the committee process for dealing with bills is so important, and I acknowledge that. If a bill has technical flaws or issues that need to be addressed from a public policy point of view, the committee process is the way to deal with that through submissions, through evidence and through hearing from people who have considered the legislation. I appreciate what the Attorney-General's Department has said in relation to this; it seems to be the view of the Federal Police as well. I have circulated amendments to address those concerns. My understanding, and I am sure that I will be picked up by the Deputy Clerk if I am wrong in relation to this, is that the committee report for this bill has been tabled. Through you, Madam Acting Deputy President Moore, I understand it has been; I do not want to be subject to a Privileges Committee inquiry.

Photo of Claire MooreClaire Moore (Queensland, Australian Labor Party) Share this | | Hansard source

Senator Xenophon, it has been tabled; you are safe.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I am safe? I am glad I am safe on something. That is a good thing, Madam Acting Deputy President. In that case, I can freely discuss the report. For the life of me, I cannot understand why the committee, made up of government and opposition senators, still does not support this bill, even with the proposed amendments that deal with the concerns of the Attorney-General's Department. For goodness sake! If you were a parent and some creep—an adult—was communicating with your child under the age of 16 and lying about their age, and then wanted to meet your child, wouldn't you want the law to be able to intervene? It seems to me that it is a matter of common sense, of common decency, that that be the case. Instead, there seems to be a lack of political will to deal with an issue as important as this, an issue that we must address because of the growing risk of online predators and the risk they pose to our children. I am absolutely gobsmacked that the committee in its consideration of the bill, even with the amendments, did not think it appropriate to support the bill, that it did not acknowledge the problem that arises here. It is worth mentioning what Sonya Ryan said in her submission to the inquiry:

Young teens often have a desire to be free of their parent’s authority to gain acceptance as grown‐ups. Teens are naive and inexperienced, especially in dealing with adults who have ulterior motives. Sexual predators take advantage of this naivety. They manipulate kids in an effort to gain trust, which they use to gradually turn seemingly innocent online relationships into real‐life sexual interactions. A predator usually approaches a child initially through harmless chat room or instant message dialogue. Over time—perhaps weeks or even months—the stranger, having obtained as much personal information as possible, grooms the child, gaining his or her trust through compliments, positive statements, and other forms of flattery to build an emotional bond.

Sonya Ryan continues:

We are seeking to add this vital law to address the common denominator in the way online predators behave, they all set up false online profiles, most reduce their online age to present as a peer to the child with the intention to meet that child.

I put it to you that no adult could have a legitimate reason for establishing false profiles with fake names, age and photos to contact and meet a child that is not known to them for legitimate purposes. The proposed law is specifically tailored to that fact.

Sonya goes on to say:

As a nation we need to support our law enforcement units that are dealing with this new form of stranger danger, to ensure that once they have identified a predator, they have the support of this Parliament to apprehend these criminals.

…   …   …

This proposed law—

Sonya says—

is the gap between our law enforcement agencies and the ability to make a difference before it’s too late. We have comprehensive laws that protect us from those who seek to commit an act of terror, apprehending the persons evolved prior to the event. I believe we also need to have laws that protect our children on the same basis, to prevent an act of terror, terror that may or may not end in death, but may cause a lifetime of trauma.

In essence, what Sonya is saying, and I agree, is that we need preventative measures. We need to have the legal option of a place where we can intervene before things go too far and more children are put at risk.

I also want to raise some of the examples stated in the committee submission made by the Attorney-General's Department. The department stated that the bill could not be supported, despite acknowledging that:

It is possible that by requiring an intention to encourage a physical meeting only, this offence may be easier to investigate and prosecute than existing grooming and procuring offences which require evidence of sexual intent, allowing law enforcement agencies to intervene during the preparatory stage of an offence before proof of sexual or other illicit intention is apparent.

Despite this comment, the department declined to give its support to the bill.

The department also gave examples of genuine situations where people lie about their age online, and extrapolated how this might lead to an innocent person being caught under the offences in this bill. But they do not get it. The fact is: this has another element that the 2010 bill did not have—and I acknowledge that. That element is that, in addition to lying about your age to a child, you are wanting to meet them and trying to set up a meeting with that child. It beggars belief that the Attorney-General's Department has taken such a narrow, legalistic view in relation to this.

One particular example used by the department was of an adult using Facebook to distribute invitations to a birthday party, where the adult has humorously exaggerated their age. My proposed amendments removing the absolute liability in the bill will address these concerns.

The department also used the example of a 19-year-old, who could get caught under the provisions in the bill if they represented their age as 18 in order to enter into a relationship with someone who was 17, even though it is legal for them to have consensual intercourse. Firstly, I would hope that a 19-year-old would not think it was okay to lie about their age to a 17-year-old for the purposes of entering a relationship. Secondly, this demonstrates to me that the department does not understand or appreciate the real circumstances—that these lies, in whatever situation, indicate intent to deceive another person.

The internet and online technology are constantly evolving and expanding. They are also now embedded in our lives, and in the lives of our children. In her submission to the inquiry, Ms Susan McLean, a cybersafety expert and educator and a former police officer, summarised research that revealed the extent of this use, and highlighted disturbing trends. In her submission she said that:

A 2005 survey of 742 teens (aged 13 – 18) and 726 tweens (aged 8 – 12) conducted by the Polly Klaas Foundation (USA) reported … 54% of teens admitted communicating with someone they’ve never met using an Instant Messaging program, 50% via email and 45% in a chat room. 16% of all respondents … discovered that someone that they were communicating with online was an adult pretending to be much younger.

The pace of technological growth means children are almost always much more comfortable with online communication than their parents: what we still see as new and different is as essential and normal to them as breathing. New forms of communication mean that we need new laws to protect our children. In cyberspace, we cannot stand by their side as they explore the world. We cannot always set rules and curfews, because our kids can be sitting safe in their rooms—and, even while they are, be in danger.

This bill is an attempt to address some of the techniques used by online predators, so that we can put an additional safeguard in place for our children. If there is not support for this bill, I ask everyone in this place: what do we do, if not this? What do we do? What are our options? How can we make things safer? We know that the current laws are not enough, and I believe that this law, with its amendments, is a genuine attempt to fix it.

Like technology, our response to these unimaginable crimes must keep evolving. We cannot ever say we have a final remedy to a problem, because we do not know what the next problem will be. But I plead with my colleagues in this chamber, and to people in the general community: either this law, or something very close to it, must be passed. It is completely unacceptable that an adult can lie about their age to a child online with the intent of meeting that child and for that not to be a criminal offence. I know it is not supported by my colleagues from the government or the opposition, as I understand it.

But there is a wonderful thing coming up soon—I do not know when—called an election. And, along with Sonya Ryan, I will campaign for this to be an election issue. For all the parents out there, for all the kids out there who have been subject to online predators, this issue will not go away, and we must, with some decent political will—and, I hope, with bipartisanship—address this issue once and for all. There is no excuse to allow this type of behaviour to be not sanctioned by the law, and that is why I will continue to campaign for change, in memory of Carly Ryan. In memory of Carly, who was fifteen and in love, I ask all of you: what do we do next? We must do something to protect those like Carly. In Carly's memory, for all those kids out there who are being targeted by online predators, the law must change, and it must change sooner rather than later. Again, I say to Sonya Ryan: it has been an enormous privilege to be able to work with you on this, and I will not give up until the law is changed.

5:50 pm

Photo of Mark FurnerMark Furner (Queensland, Australian Labor Party) Share this | | Hansard source

I rise this evening to contribute to the debate on Senator Xenophon's private member's bill, the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013. Firstly, let me state that I think the intent is honourable. The intent behind Senator Xenophon's attempt to consider where there might be some cracks or holes in the existing legislation dealing with this particular matter is honourable. However, I put myself in the same position: I am the father of two beautiful daughters, Stacey and Sally, and I now have a granddaughter, Xavia. If I thought for one moment that they were going to be jeopardised by their online communications, their social networking as young adults, I would be one of the first senators on the government side of the chamber to support Senator Xenophon's bill. However, that is not the finding of the main part of the submissions to and of the evidence that was put before the Senate's Legal and Constitutional Affairs Committee, of which I am a member.

We should remind ourselves also of what legislation is out there to protect our youth, to protect the likes of Carly Ryan and make sure that this tragic circumstance never occurs again. We do share Senator Xenophon's concerns on the case of Carly Ryan. It is terrible that that sort of event occurs in our society these days. But Australia has always played a strong role in addressing the sexual exploitation of children, including by developing a strong legal framework to prevent, investigate and prosecute child sex-related offences.

Senator Xenophon attends on a regular basis the Legal and Constitutional affairs estimates committee hearings where I ask the men and women of the Australian Federal Police about their stings and prosecutions in the area of the exploitation of children through online communications and social networking. They often provide examples of their successes in prosecuting the insidious people who prey on children through online communications.

The Commonwealth law already criminalises online communications with children where there is evidence of an intention to cause serious harm to the children. One example is the Commonwealth offence of communicating with a child online with an intention of either engaging in sexual activity with the child or procuring or making it easier to engage in sexual activity with the child, or 'grooming'. These matters were explored and evidence was provided through the substantive part of the inquiry into this bill. These offences currently attract a strong maximum penalty of between 12 and 15 years imprisonment.

It is also an offence to use a telecommunications network with the intention of committing a serious Commonwealth, state or territory offence. This covers cases where an adult communicates with a child online with the intention of communicating and other kinds of serious assault against them. A person who is found guilty of this offence would be subject to the maximum penalty applicable to the specific offence that the person intends to commit. For example, a person who builds a relationship with a child online with the intention of murdering the child would be subject to the penalty applicable for the offence of murder.

The Commonwealth's child sex related offences were strengthened in March 2010 through the passage of the Crimes Legislation Amendment (Sexual Offences Against Children) Act. The amendments in this act were designed to ensure that the Commonwealth offences remain comprehensive and able to deal with contemporary forms of offending. The amendments therefore took into account a range of factors, including law enforcement's operational experience. We were also informed, through submissions, of a consultation paper which was released to the public, including relevant state and territory agencies and non-government organisations. However, the government is of the view that the existing criminal provisions sufficiently cover the relevant offending behaviour.

I can reflect on recent communications I had with a constituent not far from my office expressing similar concerns to those raised by Senator Xenophon in his attempt to address this issue with a private member's bill. I went to the constituent's home and saw firsthand the website he has created that deals with his concerns and those of members on the website. The website is called 'Knights of God'. It should not be seen as a Christian website but as a website where young people who do social networking and engage in fun activities such as playing games are involved in ensuring that the levels of protection and safeguards that this administrator has put in place protect their interests and the particular areas that this bill attempts to address in respect of protection.

I want to go to some of the findings in the committee's report. A number of submitters referred to existing offences in the Criminal Code and stated that these provisions already capture the behaviour we are seeking to capture under the new offences proposed in this bill. For example, the Attorney-General explained that the existing online grooming and procurement offences in the Criminal Code apply where an adult has communicated with a child online with the intent of procuring, or making it easier to procure, a child to engage in sexual activity. They made the relevant point that this would cover circumstances in which an adult misrepresent their age in an online communication with a child for the purpose of encouraging a physical meeting with that child with the intent of engaging in, or making it easier to engage in, sexual activities during a physical meeting. This is the type of evidence we have heard during the legal and constitutional affairs committee inquiry into this matter dealing with online grooming and procurement offences.

The Law Society of South Australia made a submission to the inquiry. They were of the view that this was unnecessary because the Criminal Code already contains grooming offences which more appropriately criminalise conduct of a criminal nature. We also heard about intent to misrepresent one's age. The Attorney-General's Department explained that if only an intention to misrepresent age, and not an actual misrepresentation of age, is required the offence is too broad. Accordingly, an actual misrepresentation of age would be preferable to limit the application of the proposed provision.

So in many circumstances there is protection out there in respect of legislation to capture and prosecute through the Criminal Code offenders such as paedophiles and people who have insidious and devious intentions to target young children in our society. In the area of intention to encourage a physical meeting, submitters to the inquiry raised concerns in relation to a particular aspect of the proposed offence in paragraph 474.40(1)—the intention to encourage the recipient to physically meet with the sender or any other person. In essence, these concerns were that the offence is not consistent with current Criminal Law policy and there is no clear nexus between the non-criminal conduct captured by the proposed offence and the criminal conduct which is the subject of the offence.

The Attorney-General's Department once again advised us that, under Criminal Law, it is highly unusual for lying to be made a criminal offence without an additional element that results in the behaviour being considered sufficiently abhorrent to justify criminal sanctions. Once again, the intention by devious people to induce our youth through social internet engagement is really captured through the Criminal Code and other measures that the current Labor government has put in place through the cyber-bullying and cyber-scrutiny policies it has developed to protect our society.

Debate interrupted.

Proceedings suspended from 18:00 to 19:00