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LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
09/03/2010
Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010

CHAIR —Mrs Johnston, you are on the end of the phone as our first witness. Good afternoon. Thank you for joining us. Bravehearts has provided us with a submission, which is No. 8. Do you want any make any changes or amendments to that before I ask you to speak to it?

Mrs Johnston —No, I am happy with that submission.

CHAIR —I now invite you to make an opening statement and then we will go to questions. Before I do, though, I should advise you that in the room is me, Senator Crossin, the chair of the committee; Senator Guy Barnett, the deputy chair; Senator Nick Xenophon; and Senator Scott Ludlam from the Greens. We also have Julie Dennet, from the committee secretariat, and representatives from the Attorney-General’s Department and the AFP listening to your evidence this afternoon. Mrs Johnston, I will hand it over to you.

Mrs Johnston —Thank you very much. We were approached to provide a submission, which we were happy to do. We support wholeheartedly the intention behind this Criminal Code amendment, but we would concur that it probably has some aspects that need to be clarified. I would hope that we are not going to throw the baby out with the bathwater—that we work to actually make this legislation achieve what it is designed to achieve, because it is a very important issue that does need to be addressed.

CHAIR —Do you want to elaborate on that a little bit about some of the issues you think need to be improved?

Mrs Johnston —I understand the bill is trying to make it a crime for a person who is an adult—or a person over the age of 18—to be misrepresenting their identity to a person under the age of 18. The way the bill is constructed at the moment, there is not enough definition around the intention of why a person would misrepresent their age. We believe, in agreement with the other submissions that we have read on the net, that there is a possibility of it inadvertently targeting the wrong people, so in our submission we have suggested some definitions we believe should help. We are not lawyers, but we have phrased it in terms of intent to make it clear that this is about a person who is misrepresenting themselves as a child to another child, specifically targeting a one-to-one contact with a child for purposes which we have not covered in our submission actually, but engaging the recipient in sexualised behaviours or discussions or actions. I think there needs to be that defining message in there. We need to be really clear about who it is. This legislation needs to be clear about what adult behaviour is illegal and why—what is it about that behaviour that makes it illegal? Currently it is too broad. It just says any adult misrepresenting themselves falls under this legislation. I imagine there could be various reasons why that could actually happen, including our own character ‘Ditto’ who talks to children on the net. Ditto is obviously an adult character purporting to be a child to have discussions with other children to educate them around their own personal safety. Those little anomalies are not covered, I guess, in this legislation.

CHAIR —I will start with the first question. On the last page of your submission to us you have got three dot points. So they are the specific areas of the bill that you think need to be tighter or better defined?

Mrs Johnston —That is it. We believe that those are the three aspects that, from what we can see, need to be better defined. I would add that since having written those—actually I had forgotten about this until this very moment—we have been having a discussion around the fact of the whole reason that this adult is engaging this child, the recipient, in sexualised behaviours or discussions or actions. Why the adult is contacting the child can be demonstrated by virtue of the communication that is going on one-on-one with the child. By that we mean that the adult is trying to groom the child or to entice the child to take their clothes off or to do something over the internet that is of a sexualised behaviour or discussion or action.

CHAIR —So you would say that the legislation is unclear at this stage in that it does not refer to an individual adult as to an individual child directly?

Mrs Johnston —Yes, I would say that. There is not enough definition around who it is we are targeting and why we are targeting them.

CHAIR —And that it also should be ongoing and that you do not necessarily need to know the child?

Mrs Johnston —That is right. Most online groomers—offenders—do not know the child. They have just met the child online in a chat situation or in other situations that we have noted internationally, where they actually do know the child but they purport not to. They pretend to be somebody else to get into the child’s head and not allow the child to know actually who they are, that it is actually them. I think it is really about offenders getting on the Net either to meet the child physically, which has been covered, or to entice the child to engage in sexualised behaviours, acts or discussion.

CHAIR —We will go to other questions. Senator Xenophon has some questions.

Senator XENOPHON —Thank you for your submission, Mrs Johnston, and thank you for the work that you do in protecting children against sexual assault.

Mrs Johnston —Thank you, Senator.

Senator XENOPHON —One of the concerns that have been put to me particularly arising out of the Carly Ryan case, the murder of Carly Ryan in South Australia, is that currently you need to prove under section 474.26 of the Criminal Code that the sender sends material with the intention of procuring the recipient to engage in or to submit to sexual activity with the sender. How do you deal with situations where there is some preliminary grooming going on and you have circumstances where an adult is misrepresenting their age to a child for the purpose of gaining the trust of the child and, at that stage of those early stages, there is no question of sexual intent or any prurient intent with respect to that, because it cannot be shown? How do you deal with those circumstances where, for instance, a 40-or 50-year-old man is communicating with a 15-year-old, pretending to be their friend online and saying that they are a 16- or 17-year-old?

Mrs Johnston —I absolutely agree with you. I was concerned about some of the other submissions that just said, ‘Throw it out and forget it. It doesn’t work.’ We cannot do that. What you have raised there, and I applaud you for having done it, is a really critical issue. Not being a lawyer, I am not quite sure how you do it but I like the ‘meeting with the child physically’ so I would suggest that that is how you do it. Over and above that, engaging a recipient in sexualised behaviours, discussions or actions needs to be covered as well, because they might not actually want to meet the child in person but might want to get sexualised images of the child for all kinds of reasons.

Senator XENOPHON —Sure, but what in terms of those initial stages and initial contacts? I think there was one submission in which a person said, ‘My mother tells my children that she is 21 when in fact she is clearly not.’ That is clearly an innocent circumstance; it is just the nature of the dialogue with the children. How would you deal with that? Would you say that if a person who communicates with a child knows the child and their parents are aware of that knowledge that would be a defence? How would you have defences so you do not have unintended consequences in respect of this?

Ms Johnston —In my limited view, the only way that you could do it is if you did not know the child, or if you are deliberately misrepresenting yourself to the child by pretending to be somebody else. And I think the age of consent laws quite often are not applied. The police make a common sense decision not to proceed most of the time with matters of age of consent. This would probably fall into the same category. It is a difficult issue, and I commend you for taking it on. I hope that the legal minds in the room and others will find a solution.

Senator XENOPHON —I would like to take it a step further. Given the intent of the legislation is to not allow the grooming of children by adults who are clearly misrepresenting their age with a view to gaining the trust of the child where there does not appear to be, on the face of it, an innocent purpose, from your point of view would you be looking at more extensive defences or would you say that for a first offence there should be a lesser penalty?

Ms Johnston —No.

Senator XENOPHON —In broader terms, would you look at it as: is this a tool for the police to be able to keep tabs on and warn people who do not have an innocent explanation for communicating with children, for posing as children when they are clearly adults?

Ms Johnston —Yes, I think it is an incredibly important tool for police. As we all know there is a lot going on on the net, and I think the answer will lie in the defences to this. So what are the legitimate reasons as to why a person might pretend to be a child and portray themselves as such to a child that is innocent? There probably just needs to be some sort of out in the legislation to cover that.

Senator XENOPHON —Okay, so if there was defence along the lines of it was, in all of the circumstances, an innocent communication, would that be a way forward? How would you see it given your experience?

Ms Johnston —I would not be happy with that because any offender could argue that it is an innocent communication. This is the problem: we have to define what it is. I am not sure what the answer is, and I do apologise senators that I do not have the answers. We just do not have the resources we would like to apply to these things, to spend the time we would need to look at this properly. From our perspective, it is critically important that the police—they know who these offenders are; they are right across the modus operandi of these people—have an instrument or a tool to interrupt that behaviour and to prosecute the offenders. But it just needs to be clear. I cannot perceive any excuse why an adult might do that, but I am sure there are some. I am suggesting that there be a defence that enables an out to this if something like that were to happen.

Senator XENOPHON —Do you agree that under the current Criminal Code—for instance, 474.26, which requires proving the ‘intention of procuring the recipient to engage in, or submit to, sexual activity’—it is too narrow in the sense of trying to apprehend or deal with those individuals who misrepresent their age for the purpose of grooming children?

Ms Johnston —I would agree entirely.

Senator BARNETT —Firstly, thank you for being here and thank you very much for your efforts in terms of the protection of children online, offline and in other places. It is appreciated.

Ms Johnston —Thank you.

Senator BARNETT —I want to go to your submission and these three defining aspects where you think there could be some improvement, and this issue of grooming. It seems that your second dot point talks about the grooming. Is it correct that you think the offence should be specifically targeted toward adults intending to groom a child? Do you think it should be more specific to target that type of behaviour?

Mrs Johnston —I do. I think that is where the legislation is failing, at least from our point of view. Offenders are able to run rings around law enforcement somewhat. The grooming process involves an initial contact with the child that is then built upon. There is an ongoing communication between an adult purporting to be a child and the child themselves. I think there has to be a point at which law enforcement agencies can intervene right there.

Senator BARNETT —Exactly. There needs to be a reasonable suspicion that grooming is taking place and, if that is the case, in your view we should have a law to stop it.

Mrs Johnston —Absolutely, we have to stop before it happens.

Senator BARNETT —The other question I have relates to the need for criminal intent. Your submission indicates that you support the objective of the legislation but you think it could be better defined and, in doing so, there should be some sort of criminal intent. Is that correct?

Mrs Johnston —Yes. In our limited experience with this, it is always about the intention of the person who is making contact with the child. To go back to defences, I cannot imagine a scenario where it would be okay or that there was not criminal intent. Does there have to be a crime before there is criminal intent? Currently there is no crime in pretending you are a child and discussing the tennis, for instance, with a child. That is our issue with that—we have to demonstrate that the person is doing this with an intention that is not pure.

Senator BARNETT —Yes, I can see that. Going back to my days at law school and in criminal law, there is a requirement for mens rea and actus reus, which means there needs to be a mental capacity and a physical component of the criminal activity. You are saying there should be both—it is not just the physical relaying of the message or the communication; there needs to be a criminal intent behind it as well.

Mrs Johnston —That is exactly what I am saying. I am also adding to that that quite often this is pretty much targeted at physical contact with the child after a grooming process, whereas our experience tells us that probably more often, or at least as often, offenders are engaging young people over the net to provide them with photos or perform acts in front of cameras and whatnot. That is not about meeting a child, but it is still about sexually assaulting a child via exploitation, with possibly even bribery and whatnot down the track.

Senator BARNETT —With our 21st century internet age and the way people communicate, through websites, chat rooms, SMS and so on, have you considered the definition of communication and how broadly that should be defined? You might have, for example, a website which attracts kids and then, from there, communication takes place—it is not a proactive approach of sending emails or SMSs; it is just a website that is attracting children. Would you consider that communication?

Mrs Johnston —I would if we get back to the one-on-one, person-to-person, individual contact—that is, that person is targeting that child. And you have peer-to-peer networking going on as well. Mobile phones are where it is all going anyway. Apart from in an office situation, I think you will find in the future that most people, particularly young people, will be carrying mobile phones and their communication will be predominantly in a mobile capacity. It is changing every day, so I assume it would be very hard to define communication. But I think this is a really good step forward. This is a person misrepresenting their age over a form of communication, whatever it may be—a telephone or computer. At the end of the day, obviously their intentions are not pure and the child is in danger, so if we can interrupt that process I think we must.

Senator BARNETT —Thank you.

Senator LUDLAM —I will be brief because I think we are short of time. Thank you very much for your time this afternoon and also, from my point of view, for all the work that you do. We have talked about narrowing and targeting this proposal a little bit better so that it meets some of the concerns that have been raised by you and some of the other submitters. I am wondering whether you have had time to review the other bill that this committee is looking at this afternoon, which is the Crimes Legislation Amendment (Sexual Offences Against Children) Bill. As far as you are concerned, is there anything in there that is either supportive of what we are trying to do here or covers some of the same ground?

Mrs Johnston —I am so sorry, Senator, but I have not seen that. I am not across that at all.

Senator LUDLAM —It would probably be worth a look. I do not know that it specifically covers the same ground, but we are having a similar discussion through the afternoon.

Mrs Johnston —I would be very interested to know more about that.

Senator LUDLAM —It is probably not too late to provide a supplementary submission to the committee if anything there catches your eye.

Mrs Johnston —Thank you.

CHAIR —We do not have any other questions for you, Mrs Johnston. Thank you for your submission and for making yourself available to us this afternoon.

Mrs Johnston —Thank you to you all.

[4.32 pm]