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Legal and Constitutional Affairs Legislation Committee
Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
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Legal and Constitutional Affairs Legislation Committee
Singh, Sen Lisa
Boyce, Sen Sue
Wright, Sen Penny
Xenophon, Sen Nick
Federal Agent McEwen
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Legal and Constitutional Affairs Legislation Committee
(Senate-Monday, 3 March 2014)
Content WindowLegal and Constitutional Affairs Legislation Committee - 03/03/2014 - Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
BURTON, Ms Amy, Legal Officer, Criminal Law and Law Enforcement Branch, Attorney-General's Department
COLES, Mr Anthony, Assistant Secretary, Criminal Law and Law Enforcement Branch, Attorney-General's Department
McEWEN, Federal Agent Glen, OAM, Commander Cyber Crime Operation, Australian Federal Police
SENGSTOCK, Mrs Elsa, Coordinator, Legislation Program, Australian Federal Police
CHAIR: We now move on to a panel with the Attorney-General's Department and the Australian Federal Police. As Commonwealth officers, you will not be asked to give opinions on matters of policy. You are obviously given the opportunity to refer questions to a superior officer or minister if that is needed. We have received the Attorney-General Department's two submissions. I will start by asking you, Mr Coles, if you wish to make any amendments or alterations to your submission, and then if you or anyone else wants to make a brief opening statement before we go to questions.
Mr Coles : We do not have any amendments to the submission, but I would like to make some very brief opening remarks.
CHAIR: Fire away.
Mr Coles : Thank you. The department thanks the committee for the opportunity to present its views on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013. The department shares Senator Xenophon's concerns about the safety of children online and is supportive of action taken to prevent harm to children from occurring. Rapidly changing technologies and the anonymity of the internet have resulted in unprecedented opportunities for child sex offenders. The sexual exploitation of children and violence against children is devastating to the children involved, their families and their communities. However, as noted in the department's two submissions to the inquiry, the department does not support the proposed bill. While the intention of the bill is sound, the department's main concern is that it is not necessary and it is too broad in its application. Commonwealth law already criminalises online communications with children, whether there is evidence of intention to engage in sexual activity with a child or otherwise harm the child. The department does not support the introduction of offences criminalising mere misrepresentations about age without any further criminal intent. This, in our view, would be an inappropriate extension of criminal responsibility.
The Criminal Code does not directly criminalise misrepresenting one's age to a child online. However, this activity can be captured by offences which criminalise online communications with children where there is evidence of intention to cause harm to the child. For example, as I think you have already heard, it is a Commonwealth offence to communicate with a child online with the intention of either engaging in sexual activity with the child—'procuring'—or making it easier to engage in sexual activity with a child—'grooming'. Those offences carry strong maximum penalties 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. That later offence would cover cases where an adult, for example, communicates with a child online with the intention of committing any other kind of serious offence against them. And a person who is found guilty of that offence, which is 474.14, would be subject to the maximum penalty applicable to the specific offence the person intended to commit. For example, a person who built a relationship with a child online with the intention of murdering the child would be subject to the penalty applicable to the offence of murder.
In conclusion, I note that 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 that act were designed to ensure that the Commonwealth's offences remain comprehensive and able to deal with contemporary forms of offending. The amendments took into account a range of factors, including law enforcement's operational experience. They were also informed by submissions to a consultation paper, which was released to the public, including relevant state and territory agencies and non-governmental organisations. Resulting amendments enhance the coverage of offences for using a carriage service for sexual activity with a child and also introduce new offences for using a carriage service for indecent communications for sexual activity with a child. Consequently, the department is confident that the Commonwealth's child sex-related offence regime appropriately covers 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. Thank you, Chair.
CHAIR: Thanks very much, Mr Coles. Mr McEwen, did you want to say anything by way of an opening address?
Federal Agent McEwen : No, thank you, Chair; we are happy with that.
CHAIR: We will go to questions.
Senator SINGH: Thank you, Mr Coles, for that detailed opening statement by the department. This committee endorses the broad objective of enhancing the safety of children online but also has questions about whether the current bill before us achieves that outcome or, more importantly, whether the broadening nature of this bill which you have just raised would end up criminalising those who perhaps it was not intended to focus on in the first place. I note in your submission, in the comments on the offences proposed by the bill, that you talk about how, under paragraph (b) of each of the subsections of the bill, a person commits an offence if they communicate with a child online with the intention of misrepresenting their age.
On this issue of intention, you outline that that means that the sender need only have an intention to misrepresent their age to a child online, as opposed to an actual misrepresentation of age. That is one of the areas that you point to as a concern in the bill. I am trying to get a clearer understanding of the difference in how it outlines intention as opposed to actual, compared to the legislation you referred to earlier, the Sexual Offences Against Children Act, and whether that goes into the issue of intention versus actual.
Mr Coles : I think the point we are making in the submission really goes to the issue of the breadth of the proposed offence in section 474.40(1), which we say is so broad that it would often capture behaviour that should not be regarded as criminal. The point we are making in relation to the intention issue you have just raised is that the way that it is framed makes it even broader, so that you do not actually have to make a misrepresentation as to your age, you only have to intend to do that. For example, rather than saying, 'I am 17,' when in fact I am 25, you might be able to do that by communications that go to the types of interest that you have or the places that you hang out with your friends on the weekend, those kinds of things. It just means that the application of the offence could potentially be even broader than it would be if there was an actual misrepresentation required.
Senator SINGH: If the bill was drafted differently, if it did not say intention but, rather, it had actual, how would that tighten that breadth? Do you know what I mean? Even if you actually gave your age, it could be for the examples that you just gave; it may not be to have that intent for a criminal offence.
Mr Coles : That is right, I think we are in agreement. We would say that either way—either the way that it is drafted now or if there was an amendment to tighten it to require an actual misrepresentation—the outcome could still be that you are criminalising behaviour that should not be criminal. Take, as an example, the 18-and-one-month-year-old who says that he or she is 17 because they want to get an invite to the 16th birthday party of the person who is about to turn 16. There is no criminal intent there, but on the face of this legislation that would be a criminal offence.
Senator SINGH: I am just trying to get that clear, because you say in your submission that it may be more appropriate that the offence require an actual misrepresentation of age rather than just the intention.
Mr Coles : I think what we are trying to say is if it were the committee's view that it was going to recommend that this bill go forward then we would say that that is a drafting amendment that should be made. But I would not want the department to be misunderstood as talking about technical changes around the margins. We have a fundamental problem with this around the broad application of it, however it is drafted.
Senator SINGH: So you do not see the possibility of it being drafted differently to meet the objectives it sets out to achieve?
Mr Coles : Of course there is always the potential to do that. It is not for us to get into hypotheticals about the different variations of how you could draft this. But the point we are making at the moment is if you have an offence which is focused on a simple misrepresentation about age, actual or otherwise, with the only outcome being that you intend to arrange a physical meeting and nothing else then we say that is problematic, because that is an inappropriate extension of the criminal law.
Senator SINGH: That other act you referred to earlier—sorry, I am not that familiar with that—
Mr Coles : The amending act from 2010?
Senator SINGH: The sex offences against children act?
Mr Coles : Yes.
Senator SINGH: Would that in any way address some of the issues that have been raised by Sonya Ryan in her submission and the online predatory issues that we are raising through this bill?
Mr Coles : It may do. That was a 2010 bill which, as I said, followed a consultation process around the online child sex offences in the code and yielded a range of outcomes to improve that regime overall. So it was not just focusing on the offences that we are discussing here today. It had a broader scope and yielded a range of broader outcomes. I do not have the list of stakeholders in front of me. I can take that on notice and get that for you, if it would be helpful. But I think broadly what we are saying is that there was a recent review of these offences in the code which was done in a consultative way and yielded a range of changes. As a result, the department feels confident that the amended offences are appropriately adapted to the kinds of challenges that we face in the online environment today.
Senator SINGH: I just wanted to ask that final question to have an understanding, and for this committee to have an understanding, as to whether there are alternative provisions other than the bill before us that go some way to addressing the concerns that have been raised in relation to enhancing the safety of children online through, for example, Sonya Ryan's submission.
Senator BOYCE: I want to ask this of both the department and the police. I am trying to understand what you might perceive to be the difference between this type of grooming compared to the sorts of paedophilic grooming that has gone on for generations. The main difference I see is that the individual can see that the person who is trying to be their friend is much older. That is about the only difference I can perceive. Could you talk a little about what you perceive to be the differences between what is happening online compared to what has been happening for generations and how the law needs to adapt to meet the change, if at all.
Mr Coles : That is probably a question that the police are better placed to answer. But I want to clarify one point, which is, in the department's submission on the bill, which the AFP supports, we are not saying that we are talking about different types of grooming; we are saying that if you are in fact talking about grooming then the Criminal Code already has provisions which cover that.
Senator BOYCE: I am not suggesting that grooming per se is different; the environment is different—what the challenges of that different environment are and how we might respond to them.
Mrs Sengstock : You are talking about the fact that in the physical world if someone who is clearly 60 years old is approaching a child they can see that they are older but online and you have the relative anonymity and if you say you are 11 or 17, it can be taken at face value?
Senator BOYCE: The whole point of the 60-year-old face to face is to try to develop a sort of avuncular relationship, one presumes. Is there any difference in the danger that the child is exposed to if they believe that the person they are communicating with is a peer rather than the sorts of relationships that a paedophile might try to build face to face.
Mrs Sengstock : Just from a general perspective, you are right that in the real world scenario they may be trying to create a position of trust or authority in the relationship, and there are dangers for children from being exploited through that kind of relationship. On the online context it is creating a camaraderie with the child that they are of the same age up until the point where the child may come face to face with the perpetrator. I think the reality is that there are different challenges when the police are investigating any kind of crimes that are committed over the internet, but we then adapt our methodology, our approaches, our investigative tools so that we can address that kind of behaviour. So I think fundamentally there are different challenges and different risks, but from a general perspective we are quite comfortable that the procuring and grooming offences that we have had for some time now are effective in dealing with that situation.
Senator BOYCE: Are you able to tell us a little bit about the adaptations that you do make?
Federal Agent McEwen : I am sorry, could you repeat that?
Senator BOYCE: You talked about adapting your responses to meet the challenges of the online situations. Could you tell us a little about that—what adaptations do you make?
Mrs Sengstock : In terms of how investigators might approach and online child sex offence investigation rather than a real world—I mean in the physical world—environment?
Senator BOYCE: Yes.
Federal Agent McEwen : It is about assessing the content of the interaction between the child and the sender of that information. Of course, with the internet at times it is the anonymity that people do capitalise on. It can be quite challenging to identify what is from a peer as opposed to someone misrepresenting that particular age. There are nuances around language and also sexualisation in that language. A lot of what we investigate is of a sexual nature, so we are in a position to make those assessments over a period of time. There is always a concern around bringing it out of the virtual world into the real world. Usually our experience has shown that it is for particular reasons that have been discussed, be it through chat, voice or type text. Historically we have had an idea of the intent of the meeting or the exchange during these investigations.
Senator BOYCE: When you say 'for particular reasons that have been discussed', it is to have a cup of coffee or to have intercourse or whatever?
Federal Agent McEwen : There is usually a basis for the interaction to move from the virtual world to the real world.
Senator WRIGHT: I have a little sympathy for what this bill is trying to achieve, and that is the earliest possible intervention in a scenario that could ultimately end in tragedy. It is Carly Ryan's story. I suppose the risk there is that the police have to have seen enough evidence of grooming and so on occurring to be able to intervene and potentially stop that meeting from occurring because, if the meeting does occur, that is when things could go very bad, very quickly. That is the difficulty. Yet, of course, I am also very concerned that this casts the net so wide that a lot of people will be potentially caught up in it who have absolutely no intention of causing any harm to anyone.
In a scenario where it comes to a parent's attention that their underage child, let's say a 14-year-old girl, is conversing on the internet with someone and the parent has real concerns that this person may be an older person. What legal openings are available to the parent to go to the police and say: 'I've got real concerns. My 14-year-old won't listen to me. She trusts people. She's insistent that this is a lovely young person that she is having a good friendship with'? In a sense, I am trying to find out what the practical issues are for the police. That is the guts of the issue, isn't it? How early can we intervene and how wide do we have to spread the net to protect young people? Yet, of course, we do not want to catch people who are not guilty of anything.
Federal Agent McEwen : Thank you for the question, Senator. As you would appreciate, prevention is a pillar of policing. Within Australian law enforcement, we are very cognisant of that. It is really a community issue. It is not just a policing issue. We have a number of programs both within the police and external. We are talking about parents being aware and becoming part of the journey of the internet. The challenge for us as parents is that we have not grown up with this technology; we are learning as we go. Our teachers in this are really the children. So my message is about engaging within the family home and being aware of what your children are doing. A suggestion is to bring the computers out into a common area, within the house, and to be proactive in asking questions about that. For instance, I am the commander in charge of cybercrime operations but I am not on Facebook. I sit down with my children and use that ignorance to a degree to learn what is occurring, what the interactions are and identifying where the challenges lie.
Our strong message is to encourage parents to become more involved. It is just an extension of traditional social activity. Fathers are very interested in football and mothers are very interested in other things. It is about that collective effort and joining the children on the journey. It is about interaction. It is about broadening the dinner table conversation. It is about identifying where those issues lie.
Senator WRIGHT: I totally understand and agree. The difficulty I see is that, No. 1, kids will not necessarily listen to their parent, because what do they know? I am a parent with three young adults now. Secondly, the story of Carly Ryan's tragic death indicates that her mother actually tried to intervene. She was aware of what was going on. When the man who was ultimately convicted of Carly's murder came to the birthday party, the mother was very concerned about that and tried to warn her daughter about going off to try and meet this other supposed person who did not really exist. That was not an example of where there was no parental knowledge of what was going on. Certainly we all need to be paying attention. Again, what I am interested in is that this is a matter of trying to intervene at a point before things get so seriously wrong that the tragedy cannot be averted—that is all. If Sonya Ryan had been able to ring the police and say, 'I have these real misgivings,' would the law have been available and would there have been enough offences or penalties available to have intervened at that point, given that it was known that this person had been communicating with the young girl?
Federal Agent McEwen : It is difficult. The challenge for law enforcement is applying traditional policing methodologies to new tools that are being used either to commit crime or to conduct day-to-day activity. My take on the way that law enforcement can help is to always apply what we would do in the real world to the virtual world. Law enforcement is very similar to parenting; it is learning to identify and utilise the tools that are available. At the end of the day there is a person at the end of a computer and it is up to policing to differentiate but not treat the internet as something totally separate to the real world. It is a challenge; it is an educational process and an evolution of knowledge that will assist. There are opportunities to apply real-world thinking to the virtual world.
Senator XENOPHON: I note that the latter part of the department's submission says that what is proposed here is too wide to capture actual criminal activity, but the opening sentence of paragraph 22 states:
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.
I understand the department's position quite clearly, but do you acknowledge the work of law enforcement agencies, from an operational point of view, would be easier if you could intervene earlier without having to show sexual intent or the intent to cause harm to a child?
Federal Agent McEwen : There is always going to be operational challenges in proving the actual intent.
Senator XENOPHON: In that sentence there does appear to be some concession, though it is not support for the bill—I say that so that I am not verballing the department or the AFP—but some good could be done by being able intervene at a preparatory stage, prior to an offence occurring.
Mrs Sengstock : I think in a theoretical sense, yes, we are not having to look for evidence that establishes an intent to engage in sexual activity. This provision would remove that aspect of it, but then we are still looking for evidence that the person intentionally made that misrepresentation and that misrepresentation was for the purpose of encouraging a physical meeting. There may be a time lapse from when the misrepresentations around the person's age happened and then when the meeting is suggested or arranged. You would still need evidence to prove that the misrepresentation itself was for the purpose of the meeting. There would still be some evidential challenges in proving that intent. I guess in theory it might make it easier from a standard grooming or procuring offence because you are taking the sexual intent element out but you are still having to find evidence that shows the purpose of the misrepresentation was to encourage a meeting. There will still be evidential challenges there.
Senator XENOPHON: But it would be broader than it is now, wouldn't it?
Mrs Sengstock : It would be broader.
Senator XENOPHON: Mr McEwen, if I could refer to the Carly Ryan situation, it would seem that she thought, and her mother thought, she was chatting to a young person online, because of the images that her killer used.
Going back to the pub test: what excuse would there be for a 60-year-old chatting online to a 13-year-old and saying that they are the same age or close to the same age as that person and then trying to arrange a meeting with that person? If there were no sexual images—not enough evidence for a grooming offence or procuring—what do I tell constituents, especially those who have done work with the Carly Ryan Foundation? Shouldn't there be some opportunity for the law or law enforcement agencies to intervene in those circumstances?
The Law Society of South Australia through Mr Perrotta, its president elect, gave a good instance of someone who has just turned 18 talking to someone who is just under 16, but he contrasted that with a 60-year-old communicating with a minor. How do we deal with that? Don't you see that from an operational point of view there is some benefit in being able to intervene in those cases at the preparatory stage? I am happy for Mr Coles to respond to that.
Mr Coles : I think the answer to your question is that we agree that in the scenario you have presented—a 60-year-old corresponding with a 13-year-old online and misrepresenting his age—most often there is not going to be a legitimate excuse. But I think we are talking about where in the causal chain the criminal law comes in. I think the answer we are putting to the committee today is that there probably will not be excuse for it but that the applicable offence would be an existing offence in the code under 471.14, using a carriage service with the intention to commit a serious offence.
Senator XENOPHON: But you need to prove an intention in order to prove the offence, don't you?
Mr Coles : You do, yes—which is why, I think, you cited the paragraph in our earlier submission where we say that we agree that an offence of the kind you propose would in some cases give you more flexibility but that if you are talking about where in the causal chain the criminal law comes in there is always going to be an element of balance. I am very concerned not to make light of this in any way, but another example would be whether you would have a law which prevented someone buying a knife because they might use the knife to injure or kill someone. You do not because, I think, everyone accepts that it is far too early in the causal chain.
Senator XENOPHON: But you can buy a knife because you want to cut bread or cut food with it.
Mr Coles : But what I think we are saying is that you can also misrepresent your age online for a completely innocent reason; you can misrepresent it for a reason that ultimately would lead you to cause an offence but—
Senator XENOPHON: Sure; but the other element of this offence is, and I have listened to people and modified the bill accordingly, that you can misrepresent your age as much as you want—you can pretend to be a 13-year-old and you might be 73—but it is when you cross the threshold of trying to meet that child that it becomes an offence. Is the other way of looking at this to find a reasonable-excuse defence that would sort out those people whose actions, if they have no excuse, ought to be an offence, albeit a much lesser offence than what is currently there for grooming or procuring or 471.14?
Mr Coles : What we are saying is that we do not disagree that a 60-year-old misrepresenting his age to a 13-year-old is very troubling or that it will very often result in very serious consequences for the young person concerned. We do not disagree with that, but what we are—
Senator XENOPHON: Psychological harm included?
Mr Coles : Absolutely—psychological or physical harm. But what we are saying is that at the right-hand side of the bell curve there are going to be situations where, as I think the committee has heard, a misrepresentation is made and there is intention to physically meet the child but there is no adverse intention—
Senator XENOPHON: Hold on. They are lying about their age to the child. The 60-year-old is lying about their age to a minor. The minor agrees to meet them on the basis of that lie. From an operational point of view, perhaps to you, Ms Sengstock, or to Mister McEwen, aren't there circumstances where you are constrained under current laws to be able to prove an offence? Or is it not brought to your attention because it is not within the ambit of current laws?
Mr Coles : I am happy to pass to my colleagues, but I just want to be very clear: I am not disagreeing with you. The scenario that you have put to me, I am not disagreeing with that. What I am saying is that there is going to be a range of other situations—we were sitting here before and heard the evidence about an intellectually disabled person who just wants to make friends and makes a misrepresentation with the intention of meeting for that reason.
Senator XENOPHON: Sure, but there is an issue of psychological harm to the child. Even if there is no intent to cause harm, the act of a child being lied to in that circumstance and then coming face to face with someone very much older than the child could cause psychological harm—the lying about the identity to the child.
Mr Coles : You are putting in a further element to that hypothetical, which is someone very much older. But we also need to contemplate the full range of circumstances where, as we said before, you have the person who has just turned 18 who says they are 17 to get an invite to the party of the person who is just about to turn 16. On the face of it that would be an offence. That is why we are saying that the reach of this is too broad—not because we disagree with the scenario that you put to us of the 60-year-old misrepresenting their age to a minor; we do not disagree with that.
Mrs Sengstock : From an operational perspective, this echoes what the Law Society was saying when we came in—that is, in a situation where you have someone who is 60 chatting to a 13-year-old, it is a very real possibility that the police would have reasonable suspicion that there is malintent there, that there is an underlying sexual purpose. That would then trigger us to use our investigative powers for the substantive grooming offence. There will be an opportunity for us to intervene and seek evidence of that offence, and that in itself would have a disruptive effect. We do not have to wait until just in the nick of time. That is why we have the procuring offence; it allows you to intervene before the actual act happens. The grooming offence allows you to intervene at the stage preparatory to that.
Senator XENOPHON: There are time constraints. You are able to make inquiries and knock on the door of the 60-year-old, but that person, if they are careful in their communications with the child, would not have committed an offence so long as they kept away from talking about any sexual matters and things like that?
Mrs Sengstock : Yes. For example, if we were to have reasonable suspicion and executed a search warrant, and found child pornography on their computer, that would go a long way to indicating there was sexual intent. If their computer was clean—there was no paraphernalia, there was no intelligence indicating that they were part of a paedophile network—then there may not be evidence to make the substantive offence, but there has been a police presence, an intervention, that could have a disruptive and preventative effect. But the person would not necessarily be able to be charged with a substantive offence.
Senator XENOPHON: So you are back to square one, effectively, with that person.
Mrs Sengstock : I think so, but now it has come to the attention of police that does go to the intelligence picture of that person. They would come under more scrutiny. I suppose there is also a chance that the child has been—there has been a situation in which it is not just the parents saying: 'See, I told you they might be an older person. See, the police went and spoke to them and they are an older person. This is serious because the police have been involved.' So it does have that educative effect as well for the child, and hopefully stems any potential harm that the false relationship that had been cultivated might cause.
Senator XENOPHON: Although in Newman's case, the killer of Carly Ryan, he had something like 200 online identities and there was no suggestion he said anything that was of a sexual or procurement nature to Carly before they met.
Mrs Sengstock : But the fact that he has so many multiple identities suggests that he may be of police interest because what is he doing with those identities? But it is difficult to speculate on that particular case as it was not an AFP operation. We are reluctant to provide precise answers to what could have happened in that case.
Senator XENOPHON: But you can see the policy dilemma?
Mrs Sengstock : Absolutely. And we, like the AGD, support the intention of this bill, and this is the reason we are all here discussing this topic. But it is just that at this point in time we are comfortable that the existing suite of offences available to us meet our operational needs.
CHAIR: I think everyone can see the policy dilemma, but there are issues that you and others have raised. I am sorry to do this, but we are under an order of the Senate to conclude by 11 am, which we must obey. I thank you very much for your attendance, for the evidence you have given and for your submissions.
Committee adjourned at 11:00