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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 —I remind senators that the Senate has resolved that an officer of the department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to the minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude asking for explanations of policy or factual questions about when and how policies were adopted.

With a little reminder of that on Hansard, I now formally welcome representatives from the Attorney-General’s Department and the Australian Federal Police. We do not have a submission from either of you. Does anyone wish to provide an opening statement or some comments about the legislation?

Ms Chidgey —No.

Mr Whowell —No.

CHAIR —Then we will go straight to questions.

Senator XENOPHON —Thank you for appearing here today. In terms of the current provisions of section 474.26, where you need to prove that the sender has the intention of procuring the recipient to engage in or submit to sexual activity with the sender, do you consider that from an enforcement point of view that can constrain law enforcement agencies in the context of those adults that pretend to be children or much younger for the purpose of communicating with children? I guess it is a question to Commander Taylor: is that something that is hurdle that you need to get over—proving that level of sexual intent?

Cmdr Taylor —Firstly, from AFP’s perspective, any legislation that that is provided to us that assists us in the work that we do is greatly appreciated. When we are talking about these sorts of offences, the difficulty is getting to a point where we are able to prove the offence sufficiently before a court.

Senator XENOPHON —Sorry, could we pause there, Commander Taylor. One of the difficulties is proving the offence. Is part of that difficulty proving the sexual intent component in 474.26(1)(b) where you need to show that the intention of procuring the recipient to engage in or submit to sexual activity?

Cmdr Taylor —Correct. Every step of the way we have to prove the criminal intent of the person that is engage in this activity. It will not be sufficient just to suggest to the court that we have been able to show that there has been contact; we actually have to prove the intention of the person that is actually grooming or involved with the child at the time.

Senator XENOPHON —As the chair pointed out, I know you cannot reflect on policy issues. The previous witness, Ms McLean, referred to a US survey and I think Senator Ludlam made the point that the findings probably would not be that different here. Sixteen per cent of respondents, or one in eight youths aged eight to 18, discovered that someone they were communicating with online was an adult pretending to be much younger. In your experience, is it an area of frustration for police, for law enforcement agencies, that there are people who do not seem to have any innocent explanation for wanting to communicate with a child pretending to be a child when in fact they are in their 40s, 50s or whatever, but all that you have got so far is that they are pretending to be younger and communicating with the child to gain their trust with no suggestion of any sexual intent. Is that something that you have seen in your investigations in the context of these sorts of matters?

Cmdr Taylor —Definitely. When we are critically engaging, we have a whole range of different ways that we can engage and be monitoring and investigating these types of offences. There are potentially the specific occasions where an offender may be engaged with a child and be purporting to be somebody younger than they are. But, again, we have to be able to show the intention that sits behind that engagement for the purposes of the court.

Senator XENOPHON —For the purposes of the legislation as it currently exists, in terms of the sexual activity or the sexual intent?

Cmdr Taylor —Correct. Quite often, too, we get many people who do go online and quite openly admit that they are older than a child and engage in an adult way with juveniles and young people as well. It is not just limited to the fact that people are purporting to be a child or being younger than they actually are. So there are a whole range of issues that we need to cover off in this context as well.

Senator XENOPHON —If parents have a role in their homes and if they see a 12- or 13-year-old communicating with someone who is 30, 40 or 50, it would presumably set off alarm bells, whereas the alarm bells would not be set off if the person says they are the same age as ‘their’ child.

Cmdr Taylor —Depending on the content. Again, this comes back to a whole range of different strategies that law enforcement are taking out. It is not just about the criminal offence. It is actually building in prevention mechanisms and ways that we can actually protect our children online and give them a safer experience. You are right; adult engagement and parental engagement with their children while they are online is critically important to preventing this kind of opportunistic crime. So, yes, there are a number of frustrations that we have in the law enforcement field, but it is a multilayered approach that we need to take in relation to these types of offences.

Senator XENOPHON —From your experience, do you agree with Ms McLean’s point that adults who, for a variety of reasons, go online pretending to be a like-minded teen, rarely have honest intentions?

Cmdr Taylor —Do I agree with that supposition? It could be the case, yes. The difficulty for us is that we might have an idea or a feeling or be alarmed at what the occurrence might be but, again, if we do not have the evidence or the proof it is very difficult for us to prosecute.

Senator XENOPHON —Going back a step, if the hurdle was that you have the ability to investigate, to ask questions, simply by virtue of proving that an adult is pretending to be a child or misrepresenting their age to a child, would that make the preventative aspects of your policing role a little easier and a little more effective if you have that additional legislative tool?

Cmdr Taylor —To a degree. The difficulty we would have is: what is the purpose of that engagement? Why do they want to engage? That has to be established and be quite clear. As Ms McLean said, it might be through the investigation that we actually start to reveal what the purpose is. So we need to specify that it is not just a communication for communications sake. We need to have an understanding as to why this actually might be going ahead and what is the reasoning behind why an adult might be wanting to engage with a child.

Senator XENOPHON —Just following on from that, right now, under the current legislation, because of the requirement to show an intent for sexual activity, it is very hard for you to go behind that. If the threshold was one of lying about age, it would give you an opportunity to investigate whether there is an innocent explanation for it. As Ms McLean points out, in her view they rarely have honest intentions if they are lying about their age. Surely that could be a valuable protective tool. If a person is going down the path of grooming, that would be an impediment to them misrepresenting their age, would it not?

Cmdr Taylor —I agree with you, but, again, I think the difficulty would be in proving what that person is doing—why they are approaching the child through the communication. That is where we would probably have some difficulty with the investigation, with a potential prosecution. But you are right; it does give us scope for early intervention and it does give us scope to have a look at what this person might be doing and the reasoning behind that.

Senator XENOPHON —Perhaps I have not asked the questions terribly elegantly. I do not think I have. Perhaps another way of looking at it is this. Say there is prima facie an offence for lying about your age to a minor and the onus is on the alleged offender to show that there was some compelling reason why they did so. Say it was a completely innocent explanation—and I am mindful of what Mrs Johnston from Bravehearts said about that, so it is not a let-out clause. Wouldn’t that make your job easier, particularly given that online predators and paedophiles start by grooming children often with a innocent communication before they gain their trust and take it a step further?

Cmdr Taylor —Again it comes back to what we discussed in the opening comments. Any legislative tool that we have that is going to assist us in these investigations is very useful, but the difficulty is in proving intention and proving what the purpose might be for that engagement. That is where we are probably going to have some difficulty for the prosecution. If it were simply for an intervention or for a prevention, then the legislation would be appropriate. I just think the tools supporting the investigation of something far more serious in nature might be a bit lacking in that instance. The scope is not broad enough to show why the adult might be pretending to be a child.

Senator XENOPHON —I will leave aside the question of penalties at this point. Let us look at the offence. You do not have to prove intent. If the offence is quite simply lying about age then that surely would make your job easier to investigate these matters?

Cmdr Taylor —If the offence was, strict and absolute, that the person was lying about their age and we could prove that then obviously there would be some scope for us to move in that realm. But if we are talking about grooming a child for some kind of serious offence being committed against a child, lying about their age is not going to move us along.

Senator XENOPHON —No, but if there was an offence of lying about age, even if that person is convicted or an offence is found proven without penalty in some cases—where there is some ambiguity and you could not prove any intent—that gives you an opportunity to monitor that person in future, doesn’t it? That person has been warned about their conduct. If there is a more serious penalty for a second or subsequent offence, in your view would that act as a disincentive for that sort of behaviour, such as lying about your age to children for whatever purpose?

Cmdr Taylor —I agree with what you are saying. Definitely. If such an offence existed, it could be used in a context where we could intervene fairly early.

Senator XENOPHON —Early intervention is often the key in these sorts of things, isn’t it? Or it can be.

Cmdr Taylor —It is part of the multilayered strategy that I think we need to approach these sorts of offences with, yes.

Senator XENOPHON —Thank you very much.

CHAIR —The issues here is not the fact that you have lied about your age—if that were a criminal offence, we would all be strung up at some stage—so, if they have lied about their age, when do you start to move into trying to prove that they have done that for the wrong reasons and what are the wrong reasons?

Cmdr Taylor —That is the difficulty with the scope of this legislation. I understand where the Senate is coming from, and it is to be applauded in relation to the approach that it has taken. The difficulty for us from a law enforcement perspective is that we have to have some solid ground and we have to be able to show evidence that we can put forward that is going to substantiate the intention of what the person is doing at the time. Obviously we are here to see whether we capture that in this legislation.

Senator XENOPHON —If it is a strict liability issue you do not have to worry about intent, do you?

CHAIR —Can I ask you about MySpace and Facebook. This might be a question more for A-G’s. The evidence we have heard previously from Ms McLean is that these social networking operations can exist internationally and they do not have a presence here in Australia. Is there any means by which they can be regulated or get some licence to operate because they have a presence here? Or does the fact that they are on the World Wide Web make them untouchable by law enforcement agencies in this country?

Ms Chidgey —There are procedures for countries to share evidence—so mutual assistance and extradition matters. If an offender was located overseas, there are formal procedures for countries to exchange evidential material and extradite someone from one country to another.

CHAIR —But, if I am a mum with a young girl who is using Facebook and I discover it is for the wrong reasons, where do I go if there is no presence here in this country? Do I have to try to source a Facebook contact in the USA? Do we not do anything in this country about ensuring those floodgates are not opened by regulating a presence for those social networking sites in this country?

Ms Chidgey —The Broadcasting Services Act is administered by the department of broadband. That department and the Australian Communications and Media Authority are responsible for that kind of thing, which includes online filtering and take-down notices for domestic ISPs and, I understand, there are some provisions for international content. I am not very well equipped to talk about those provisions.

CHAIR —So in that instance that department and their law enforcement people would work in conjunction with you; is that right?

Cmdr Taylor —That is correct. ACMA has the primary role for taking down or assessing material in Australia that might be deemed to be offensive. They have a regulatory framework in place to look at those sorts of issues. If the matter is something that people feel strongly enough about and they report it to their local police—and again they consider that there is an offence, as we saw—there are some avenues there. We can through our law enforcement partners request assistance from the other country in relation to any activity that they might take in relation to requests we have put forward.

CHAIR —Is there anything that has been drawn to your attention that would heighten your awareness of those social networking pages in relation to offences against children?

Ms Chidgey —Sorry, Senator, what exactly—

CHAIR —Through Facebook or MySpace. I suppose I am encroaching on the other bill here but, in terms of sexual offences against children, do you have any evidence that that is occurring through Facebook and MySpace?

Ms Chidgey —I might leave it to the Federal Police to comment on that in terms of specific cases.

Cmdr Taylor —The Internet is a very open, wide space. Not only the AFP but all our state and territory colleagues are doing a lot of work in relation to the protection of children online. There is a fair bit of activity in this space. If we do identify areas that need to be investigated, rest assured we are very much out there proactively targeting those people. We do have a lot of resources dedicated to these areas.

Do we trawl through the internet? I would have to say no. To start with, it is not a law enforcement mandate. But what we do rely on is community engagement and the community coming forward with any concerns they have. It is the flow of information between the community and law enforcement that is going to allow us to be out there and be very proactive and protect our children.

Senator XENOPHON —Would it be useful if there was an online ombudsman that had something to deal with this? You may have seen the article ‘Cybercrime cases ignored by trained police’ in last Sunday’s Age. Ms McLean featured in that article. She said it was very difficult for the police, given their role—and perhaps it should be more at a state police level—but if you had a dedicated ombudsman parents could go to if there are community concerns then they can be representative in a sense to the Facebooks and MySpaces. Is that something that could work effectively if it were properly resourced in conjunction with what you are doing?

Cmdr Taylor —My concern would be that there is a possibility that crimes would not be reported as quickly as they should be or could be. If parents are concerned that an offence is occurring, we would want that to be reported as quickly as possible so that any action that has to be taken can be taken. I am not sure if an ombudsman could add anything further than the current regime we have already got in place, but that is probably something for government to decide rather than me.

Senator LUDLAM —I want to follow up the point you made about the importance of the community coming forward. Ms McLean spoke earlier about the case of a parent who comes across their child’s chat record and is freaked out enough to be concerned and draws it to the attention of law enforcement. What happens then? In the absence of the sort of amendment that Senator Xenophon is proposing, what actions are taken at the moment?

Cmdr Taylor —In relation to the reporting of a crime?

Senator LUDLAM —No, in relation to a parent saying: ‘My child is having really disturbing interactions online. I am very suspicious. Can somebody help me?’ When they come to the AFP or wherever, what process is triggered by those sorts of events?

Cmdr Taylor —That would be a standard law enforcement response. We would take a statement from the complainant, the mother. Depending on what action is appropriate, we will consider whether an investigation is to be commenced. A whole range of issues would need to be considered at that time. Also there is an opportunity to talk to the parents to allow them to be better prepared for managing these sorts of incidents.

Senator LUDLAM —I do not want to wander off into hypotheticals, but if on taking that statement you or your officers were convinced that something suspicious was going on, in the absence of these sorts of offences we are discussing today do you apply for an interception warrant to access those logs? What courses of action are available to you at the moment?

Cmdr Taylor —Deciding to get a warrant is quite a way along the spectrum. A lot of inquiries have to be conducted before that occurs. Also, there is an offence regime that sits in behind that to look at the seriousness of the offence. A whole range of issues would need to be considered prior to getting to that point. It is part of an ongoing investigation. I cannot talk for the state police. Obviously, they would have their own regime as to what they would do in relation to the reporting of offences. Again, if a child is involved and there are very real concerns that the child is being groomed, or if there is a predatory profile occurring in relation to this, some very serious action would be taken.

Senator LUDLAM —Is that normally handled by the state police departments? At what point is it drawn into the AFP’s mandate?

Cmdr Taylor —There are a number of different issues. It depends where the referral is made. It could come directly to the AFP, it could be reported to the state police or it could come from international inquiries. There is a whole range of different areas for these referrals to come into.

Senator LUDLAM —So where would the kinds of offences that we are discussing today fit into that hierarchy or ecology of actions that you could choose to take?

Cmdr Taylor —Again, it could sit with the AFP as well as the state police. It could come in at any point. Again, with ACT Policing, there is that realm. There are also the Child Protection Operations Teams of the AFP that could take such an offence for a referral.

Senator LUDLAM —Okay. Sorry to cut you off. I am trying to work out the lines of responsibility, so there are two questions there. One is: is there a lead agency for investigating grooming or is it dispersed right through the states, territories and your domain?

Cmdr Taylor —Primarily it is the appropriate legislation. So, if it is a Commonwealth offence, then primarily the AFP would take a lead role. If it is a state offence that is being investigated then the state police might. Conversely, if it is something that we both need to work on then obviously there would be a joint cooperation in relation to the investigation.

Senator LUDLAM —Are you able to give us a sense of how frequent these kinds of referrals are? We were discussing earlier the statistics in the United States and were feeling as if we were operating in a little bit of a vacuum here—we know more about bullying than grooming and these sorts of behaviours. But how big is it on your radar and how many people would you say are working on these sorts of referrals at any given time?

Cmdr Taylor —In relation to grooming offences in particular?

Senator LUDLAM —Specifically, yes.

Cmdr Taylor —I could not give you the exact detail in relation to that at the moment. We could take that on notice and come back.

Senator LUDLAM —Thank you.

Cmdr Taylor —But, again, the state police would have their own way of capturing some of that data, so that would be something that would have to be raised individually with the states and territories.

Senator LUDLAM —Is anybody collating that sort of data nationally, or is that one of the gaps that we were talking about before?

Cmdr Taylor —I do not believe that there is such a collation of that data at the moment. Again, these are fairly new offences. The issue that we have is in monitoring from a longitudinal perspective as to how this is evolving. It is a fairly dynamic environment that we are in. I could not comment on what that result might look like.

Senator LUDLAM —I recognise that it is an emerging area. Do you have a specialised unit? Is this within the high-tech crimes unit or is that found elsewhere?

Cmdr Taylor —Specifically dealing with grooming offences?

Senator LUDLAM —Yes.

Cmdr Taylor —Yes, we do.

Senator LUDLAM —What is that?

Cmdr Taylor —That is our Internet Policing Team. They work quite strongly in relation to engaging online and being very proactive in this space.

Senator LUDLAM —I would appreciate it if we can get any relevant statistics or recent data that you are able to provide us with that is in the public domain on the number of referrals that you get and, as much as you are aware, on state police departments catching these sorts of offences as well. I think the others have asked most of my questions.

Senator XENOPHON —Further to Senator Ludlam’s line of questioning, I would find it useful to know what the resources are and how many officers are involved. You may want to take this on notice. What resources can you draw on at a state and territory police level in the context of what resources they have? In other words, are you only dealing with the tip of the iceberg? If somebody has a complaint, can they get action at either a state or a federal level? I am referring in particular to the article in the last Sunday Age. There was a criticism there—I think it was primarily at a state level—that people are fobbed off in some cases. There seems to be a lack of resources or a lack of understanding. So I think some further details about the extent of resources you have and the extent of demand on your services as outlined by Senator Ludlam would be useful.

Cmdr Taylor —Again, I obviously could not talk about the state police. I am happy to take that question on notice. But, with the fluid nature of it and the relationships that we have with the state police for these crime types, the resources are available to us. But we will get some details back in relation to the specifics.

Senator XENOPHON —I appreciate that the resources are available. I appreciate what you have said, but there has been criticism amongst parents that, when they have made complaints at a state level, there has been a lack of action in some cases, and that has been quite distressing to parents. To what extent is there some liaison between all bodies? If a parent goes to a state police agency and is fobbed off, they may just give up and not realise they can go to your Federal Police unit. How do we know things are not slipping through the cracks?

Senator FISHER —In respect of the initial offence of a person over the age of 18 intentionally misrepresenting their age to a person who is described in the bill as the ‘recipient’ of the communication, there is a maximum penalty of imprisonment for three years. In a scenario where the recipient were, say, 17 years of age and the sender were, say, 19 years of age and claimed to be 17 years of age, would that be an offence under the bill and punishable by a maximum term of three years?

Ms Chidgey —Yes, that is my understanding of the offence provision.

Senator FISHER —Similarly, if the recipient were, say, 17 and the sender were, say, 19 but claimed to be 21, once again, that would be an offence and punishable by a term of imprisonment of up to three years?

Ms Chidgey —Yes, that is right.

Senator FISHER —Senator Xenophon has introduced his bill, as he says, following the tragic death of Carly Ryan in South Australia. Would the bill, were it to have been law at the relevant times, have prevented the tragic death of Carly Ryan?

Ms Chidgey —I am afraid that I am not able to answer that not knowing the details of that investigation or how this legislation might have assisted police. It would depend on when the situation of a sender misrepresenting their age came to the attention of police, and if it did not come to their attention until the harm was caused then the offence would not necessarily have made a difference in a case like that. I do not know what the situation was in that particular case.

Senator FISHER —What are you able to say, if anything, about the bill were it law at the relevant times having any bearing at all on changing the tragic outcome in that situation?

Ms Chidgey —Again, I am not sure that I can comment particularly on that. The only sort of general comment I would make is that we already have offences in Commonwealth legislation both for with an intention to procure someone under 16 for sexual activity as well as for a broader grooming offence where the intention is just to make it easier to procure. That covers situations that are broader than just misrepresentation of age. It can cover any communication for any purpose as long as the ultimate outcome is to make it easier to procure. So, again, it is possible that some of those offences might well have applied in that case already.

Senator FISHER —In your earlier answer, you referred to ‘were authorities aware’. Does the bill of itself increase the likelihood or does it indeed guarantee that authorities would become aware?

Ms Chidgey —No. This bill changes the offences. If I could just take a moment to mention one additional offence that we already have in the Criminal Code, and that is ‘any use of a telecommunications service with the intention of committing a serious offence’. So, if you can prove any intention to cause harm to a person or murder them, that is currently also covered by an offence in the Criminal Code.

Senator FISHER —But the bill in its terms does not of itself guarantee that authorities will become aware of prohibitive behaviour any earlier than—

Ms Chidgey —Yes. Clearly, that is a matter of law enforcement powers and also resources. Things like the government’s cyber-safety plan have put a range of additional resources into cyber-safety initiatives, including extra resources for the Federal Police. I guess it is those things that are more likely to bring such matters to the attention of police.

Senator FISHER —Thank you. I expect Senator Xenophon will have some follow-ups.

Senator XENOPHON —You almost verballed me there, Senator.

Senator FISHER —Never.

Senator XENOPHON —I don’t know about that! I wish to follow on Senator Fisher’s line of questioning. I think the evidence in the Carly Ryan case was that the person convicted of her murder—whose name, I think, is still suppressed—had been communicating with some 200 young people; he had done this on hundreds and hundreds of occasions. The current law is limited in scope and you need to prove that the person either had an intent to do something of a sexual nature or was committing an offence, whereas, if it were a strict liability offence where someone was serially misrepresenting their age, that would give the police or authorities the opportunity to intervene at an earlier stage to say, ‘What’s going on?’ and establish whether there was an offence per se based on the misrepresentation of age. Would you agree with that given this bill?

Ms Chidgey —That is right. The other side of that is that it would also mean that it could cover behaviour that did not have any particular criminal intention.

Senator XENOPHON —There would be questions about why a 40-year-old or 50-year-old wants to pretend to be a 16-year-old in communicating with a minor.

Ms Chidgey —There could be; it is possible. I think Bravehearts Inc. mentioned some, and it is possible to think of other examples.

Senator XENOPHON —But do you agree with the claim in the submission that when an adult misrepresents their age there is rarely an innocent explanation for it—or that more often than not there is not an innocent explanation?

Ms Chidgey —I could not comment on that.

Senator XENOPHON —Thank you.

CHAIR —We do not have any more questions for the Australian Federal Police or A-G’s in relation to this legislation, so I publicly thank our witnesses and people who have made submissions.

Committee adjourned at 5.31 pm