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Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
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Furner, Sen Mark
Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
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Thursday, 27 June 2013
Senator FURNER (Queensland) (17:50): 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.
Proceedings suspended from 18:00 to 19:00