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Thursday, 10 November 2016
Page: 2413

Senator KAKOSCHKE-MOORE (South Australia) (09:31): It is with a deep sense of honour, sorrow and continuing frustration that I rise to speak on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016 today. This is a bill to deal with what I, my colleagues, many parents and the wider community believe is an issue of great importance to the safety of our children. My colleague Senator Xenophon has introduced prior versions of this bill into other parliaments. This version of the bill mirrors the bill introduced in the 44th Parliament, aside from stylistic changes to reflect current drafting methods.

The reason the bill exists is because of Carly Ryan. Next year marks 10 years since her brutal murder at the hands of a paedophile. When Carly was 14 she started chatting online to someone who she was made to believe was a 20-year-old man named Brandon Kane. Brandon was Carly's ideal boyfriend, who portrayed himself as a young guitarist. She fell in love with him as their relationship online grew ever closer. But what Carly did not know, and what was purposefully and dishonestly concealed from her, was that 'Brandon' was a fictitious person, an internet construct. In truth, Brandon was actually a 47-year-old predator, Gary Francis Newman. Newman masqueraded as Brandon, Carly's teenage dream, in a perverted plan to secure the trust of Carly and her mother, who were completely innocent to his sinister and sickening motivations. This cyberspace alter ego was cunningly used by Newman to make and maintain a connection between himself and Carly. Dialogue between Carly and Brandon was conducted over the internet, the telephone and through emails. Over the course of the period between the start of that dialogue and until her death, Carly fell in love with Brandon and believed that this person was genuine and that he loved her. Carly innocently trusted this person.

Appallingly, the fictitious Brandon was one of up to 200 fake online identities Newman had created in a bid to communicate and have sex with young girls. When Carly turned 15 she invited Brandon to her birthday party. He told her he would be overseas and that he could not make it, but that his adoptive father Shane would go in his place. Shane was another fake persona created and used by Newman in his continued manipulation of Carly. Carly had already been chatting to Shane online, and she convinced her mother that it would be okay for him to come along to her party. Newman, in his role of Shane, turned up. Carly's mother, Sonya, was horrified that her daughter had become so close to a stranger so much older than she was, and warned him to stay away from her daughter. But Newman was relentless in his pursuit of his victim. Undeterred, he continued to communicate and deceive Carly with mobile telephone calls, text messages, emails and other internet traffic, convincing her that she would get to meet her beloved Brandon in person. He eventually lured her to a meeting on 19 February 2007, at Horseshoe Bay in South Australia. There, he brutally assaulted Carly and left her to die.

It took police 11 days to track Newman down. When they found him on the day of his arrest, he was logged onto his computer as Brandon Kane, chatting to another 14-year-old girl in Western Australia. Police also found a stash of child pornography on his computer and discovered he had already pursued many other young girls overseas. Newman was found guilty of Carly's murder and is now serving a life sentence with 29 years non-parole. It is hard to believe but, up until this fateful meeting with Carly, none of Newman's conduct online was illegal under our current laws. Newman was able to manipulate, lie and deceive Carly online and there was nothing the law could do to protect Carly or to give law enforcement agencies, had they known, the ability to intervene. This is because under our current laws you need to show a 'sexual purpose' or intent. In none of Brandon's communications with Carly did he express a sexual purpose with her.

The aim of this bill is to make it an offence for a person over 18 years of age to lie about their age online to a child under 16 years for the purposes of facilitating a physical meeting. This bill also makes it an offence for an adult to misrepresent their age in online communications with a minor with an intent of committing another offence. These two items close an important loophole in the law. There is no reason for an adult to knowingly misrepresent their age to someone they believe is under 16, particularly if they believe doing so will make it easier to meet or to commit another offence. This bill also contains specific provisions to clarify how this offence can be prosecuted and defended.

My colleague, Senator Xenophon, attempted to address this serious issue with earlier versions of the bill. This version of the bill will ensure that there are no unintended consequences of enforcing the law. Instead this bill creates offences specifically aimed at the circumstances—a person lying to a minor about their age to facilitate a meeting or to make themselves seem more approachable—that need to be addressed. This bill uses the age of 16 to define a minor, as it is consistent with the age of sexual consent in the majority of Australian jurisdictions.

The internet is impossible to pin down. It is constantly evolving and growing. The pace of technological growth means children are almost always much more comfortable with their online communication than their parents are. What we still see as new and different is as essential to them as breathing. We know there is an ever-increasing online presence of Australian youth and therefore a concomitant threat from online predators. New forms of communication mean we need new laws to protect our children. As a parliament we cannot stand idly by while Australia's criminal law is lagging behind technological advances. If we do so, innocent children will pay the price for our inaction. Research conducted by the Office of the Children's eSafety Commissioner showed that teenagers spend 33 hours per week online outside of school, which makes it clear that young people live in a world of constant connection enabled by the ease of access, widespread adoption of social media and mobility of online content. The rapid expansion of digital technology and increased access to the internet has transformed the lives of children globally. With opportunities for learning, communicating and socialising, very real and ever increasing risks for children online have similarly expanded.

In 2014 the Australian Federal Police received approximately 4,500 referrals of child exploitation material and in 2015 that figure rose to a staggering 11,000 referrals. These increases are deeply concerning to all Australians.

While the exploitation of children is not a new phenomenon, the online environment and the pace of the digital age has intensified the problem to record levels and created more dangers and vulnerability for 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 even while they are 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. Current laws are too narrow, and 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 the child to meet them in person. Existing laws require prosecutors to prove that adults had groomed children online—that these adults had a 'sexual purpose'.

During the 2015 inquiry into the previous version of the bill Susan McLean, a cybersafety expert with over 20 years experience working for Victoria Police, acknowledged that in her experience there had been situations in which police were unable to act because the behaviour of suspects fell short of proving the element of sexual intent in the existing offences, and that this inability to act represented a deficiency in the law. The bill aims to cure that deficiency and provide law enforcement agencies with the ability to investigate and prosecute alleged offenders in the preparatory stages of their grooming activities. This will prevent children from being placed in a position of danger. I have no doubt that giving police the power to intervene at an earlier stage will save children from abuse. Indeed, the Attorney-General's Department, in its submission to an earlier inquiry into the bill, conceded 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.

We also know that through the internet online predators can gain access to children faster and in higher volumes, using an arsenal of easily accessible online methods at the click of a mouse or the touch of a button, including chat rooms, email, online games, social networking sites and private messaging apps, to find, groom and lure victims. Ruben Rodriguez, former director of the US National Centre for Missing and Exploited Children, has said predators will go after children who tend to express agreement in chat rooms but do not say a lot—because they know these children are vulnerable. They are children who perhaps really value attention, understanding and friendship. When a predator finds such a child they invite them into a private area of the chat room to get to know them better. Next in the grooming sequence comes private chat via instant messaging services and then email and phone conversations, often on mobile phones, and finally a face-to-face meeting. According to Victoria Police Chief Commissioner Graham Ashton—in his former role as AFP Deputy Commissioner—the length of time it takes for an experienced predator to groom a child online is becoming shorter, with as little as two weeks between the first contact and a physical meeting.

We must act now to protect our children online. The public momentum for change sought to be implemented by this bill has gathered pace, with over 90,000 signatures received on the petition in support of the bill. The comments received by include: 'I, like Carly, was the victim of online grooming while I was a minor by a man who misrepresented his age by three decades. He then harassed me tirelessly and for several years haunted my every move. I feel very strongly for this to be passed as law. Don't let another victim fall to online predators.' Another post stated: 'At age 13 my friends of the same age often met up with people they had talked to in public chat rooms. They were just middle-class girls from nice families and had very protective parents. It is more common than people think. People always think they know where their children are and what they are doing. But they don't. This could happen to anyone and it will happen many more times.' And finally: 'Carly's mum visited my school. I have been a victim of grooming in the past and Sonya said that I was now safe. When she visited I was the same age as Carly. Sonya is an inspiration to me and I wish for the government to make this law happen.' A police officer with over 26 years experience posted that they believe this law may act as a deterrent to the monsters who are out there.

Education and increasing public awareness are an essential part of any preventive approach to protecting children in the online space. It is reassuring that parents are increasingly crossing the generational divide and taking a vested interest in the technology being used by children, teaching them strategies for staying safe online with the information and education provided by the Carly Ryan Foundation. As a community, we need to stay one step ahead of online perpetrators intent on causing harm to our children. The Carly Ryan Foundation is at the forefront of technological ways to counter online harm to children. The foundation has partnered with digital engagement specialists KOJO and, with the support of the government of South Australia and Google, they have developed Thread—an app to help users deal with unsafe situations online, away from home and everywhere in between. The Thread app combines the benefits of contemporary technology with clever design and personal devices.

In stressful situations, Thread provides an immediate connection between a user's location, trusted contacts and emergency services. At its core, Thread is PIN-protected, and allows users to check in with their location to show they are okay, start discussions with trusted contacts about online or offline dangers and, in the event of an emergency, send their location while dialling triple 0. I also applaud government efforts in raising awareness through the Office of the Children's eSafety Commissioner. However, education and awareness alone are not enough to protect our children online.

This bill, the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016, provides an additional and crucial line of defence in combating online predatory behaviour. We have consulted constructively with the government, the opposition and others regarding this bill, and we have listened to their concerns. We thank them for hearing us out. We welcome the opportunity to continue these discussions to achieve in law the intent of the bill, which many parties agree is laudable.

Sonya Ryan, Carly's mother, who is here today, has been pushing for these changes in the law since her daughter's death almost a decade ago. Sonya, who was nominated as South Australia's Australian of the Year in 2013, has dedicated her life to raising awareness of online dangers among young people, through the Carly Ryan Foundation. The foundation is a leader in online safety education. I acknowledge Sonya today as an outstanding and highly respected South Australian. Sonya has channelled her grief into a positive crusade to protect our children and prevent crime. Anyone who has listened to Sonya recount Carly's story at one of the thousands of education seminars she has personally provided to schools and communities across Australia is under no doubt that the law must change. If her actions stop just one young person from becoming a victim, then it is worth it. That is something we should all keep at the forefront of our minds when we are debating this bill.