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Thursday, 10 November 2016
Page: 2440


Senator DUNIAM (Tasmania) (11:40): I would like to start where the previous speaker finished, and that is that I would like to commend the Nick Xenophon Team for the work they have done in this incredibly important space. This is a very important issue and something that I, and I know many others in this chamber, feel very strongly about.

As a relatively new member of the Australian Senate and not being familiar with the work of previous parliaments with regard to this particular legislation—the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016—I have had to go away to do a bit of research. Apart from the media reporting that I observed on this particular case, I did have to review the details a little more to make sure I understood exactly what we are dealing with here. I have to say that it is one of the most distressing things I have read. I can see very clearly why we have the motivation by the Nick Xenophon Team to do what they are doing here, prosecuting this case as they have for so long now. Again, I commend Senator Kakoschke-Moore, Senator Griff had also Senator Xenophon on their work.

As a father myself, with three young boys who are quite young in years—one, five and eight—and as my wife runs a child-care centre which looks after about 130 kids and is also a former child protection worker, we cannot deny the importance of the issues we are dealing with here. It is about the care and protection of our vulnerable young—those who in many cases cannot stand up for themselves and those who are lured into situations where they are not fully aware of what is going to happen. I fear for the future. As I said, my children are quite young. Senator Pratt was talking before about her child watching Peppa Pig, I presume on some sort of online platform like YouTube. I too, have encountered this situation where my children are happily watching some form of program appropriate for children and then suddenly something comes up on the screen which is highly inappropriate. I think that demonstrates the changing nature of the world we live in with regard to the technology that our children have access to.

I remember when I was a child and learning how to write that I started with a pencil and then got a biro licence. But as soon as kids can read and write these days they are on iPads and iPhones and things like that. There is no protection. That goes to the point that Senator Pratt and others have made, that you cannot observe all of their conduct. You cannot observe the contacts they are making in the world and who they are communicating with. That is why this is such a scary thing. As I said, from the experience of my wife as a former child protection worker and from some of the stories that I read in the media I cannot emphasise enough how important this is.

I do not think that anyone in this chamber—anyone with a beating heart—could deny the importance of this issue. I know we may all differ from time to time in our views on certain issues, but I detect very much support on all sides for the principle of what we are trying to achieve here, and that is to protect our young. As legislators we need to make sure that we do it properly, that the laws we make are the best laws possible for the people we are seeking to protect. In that, we need to proceed with caution; we need to ensure, as has been described by previous speakers, that we do not have unintended consequences. I will come to those a little later on, with reference to the committee reports that have been tabled previously on the previous versions of this legislation.

What I do take heart from is the fact that the government is in continuing discussions with the Nick Xenophon Team. I understand that there is a great deal of good will there, and I am very supportive of that work to make sure that whatever unintended consequences may well come in as a result of this legislation are ironed out and that we do have the strongest protections available for our young from predators in the online environment.

Just turning briefly, though, to the current legislative environment and the protections available under Australian law at present, brief research has shown me that the Criminal Code does contain a number of offences which have some coverage in this area and are aimed at protecting children online. It is important to point out, though, that currently the Commonwealth legislation does not directly criminalise misrepresenting one's age to a child online, although there are a number of existing offences in the Criminal Code which criminalise online communications with children where there is evidence of an intention to cause harm to a child. I think it is important for us to know where we are coming from in considering where we seek to go with the legislation we are debating today.

I have some specific examples. Under sections 474.26 and 474.27 of the Criminal Code, it is an offence for a person over the age of 18, the offender in this situation, to use a carriage service to communicate with a person they believe to be under the age of 16, the recipient, with the intention of procuring the recipient to engage in sexual activity or making it easier to procure the recipient to engage in sexual activity, which is known as 'grooming', with the sender or another person. These offences are punishable by a maximum penalty of 15 years imprisonment and 12 years imprisonment respectively.

Online communications with a child with the intention of committing any other kind of serious offence against them would be captured by existing offences to do with using a telecommunications network with the intention of committing serious Commonwealth, state or territory offences or offences against a foreign law. So there is a base in law for protection, to some degree, but I acknowledge that the applicability of this law in certain circumstances is not comprehensive enough—hence us having this debate today and, indeed, the discussions outside this place in good faith to ensure that we get good laws at the end of the day.

As has been noted by previous speakers, there were concerns with previous versions of the bill. I will just touch on a couple of unintended consequences. The one that stuck out to me most was the need to deal with people with a mental or cognitive impairment or incapacity. I am a member of the Senate community affairs committees. We have been doing extensive work in this area, ensuring that laws relating to the detention of people with a cognitive impairment are appropriate and that such people are not unfairly dealt with and incarcerated for periods of time—in some cases, indefinitely—because of the inflexibility of laws and their circumstances not been taken into account. Just noting that, I think it is important that we ensure that, moving forward from this debate, any work or negotiations that occur between government and the Nick Xenophon Team takes that into account. I refer to one paragraph in the committee report which refers to an individual who has a physical age of 25 but may be working on the capacity of an eight-year-old. That is something that needs to be taken into account. I just want to make sure that those laws that we seek to put in place are, at the end of the day, ones that do not have unintended consequences.

The platforms through which communications is undertaken these days never cease to amaze me. I missed the list Senator Griff mentioned before. Senator Watt made reference to it too. Only a few years ago the number of platforms by which you as a kid could communicate with your friends—which is generally what happened in chatrooms and things like that—were far more limited than they are today. As I say, my eight-year-old son has started communicating with me—thankfully, through his mother's Facebook account—on Facebook messenger. But it has made me think. He is only eight years old. When I was eight, I was not engaging in communications of such a nature with anyone. Reading the details of the case that was the catalyst for what we are doing here today just fills me with fear about how easy it is for these predators to get a foothold in someone's life and create destruction. So, with the dynamic and changing environment of the online world, which is different from year to year, we need to make sure we have the legislative tools that are appropriate to deal with them.

I do want to acknowledge, as Senator Pratt did, the good work of the AFP and other online agencies. We read from time to time of the excellent work of AFP officers in foiling attempts of people to interact with young people in ways they should not. It disgusts me that people do that, but sadly in this world there are people who do it. So I do want to acknowledge the work of our law enforcement agencies. As Senator Pratt said, we need to make sure that these laws give those agencies the tools they need to effectively deal with the situations they are faced with.

I think that is, again, why it is so incredibly important that these discussions that are taking place proceed in good faith and that we make sure that agencies like the AFP and the Attorney-General's Department have their say about what they think they need to work with. Indeed, we should be looking at other jurisdictions too. We do not need to reinvent the wheel. If there are other jurisdictions that do it well—they have laws that have prevented these sorts of things from happening—then we need to make sure that we are taking into account the experience of other jurisdictions.

The work to educate our younger people and our children to prevent these sorts of things from happening has also been mentioned. Early intervention is incredibly important. Senator Macdonald, a little earlier on, went through some of the programs that the Australian government supports. That is in addition to many of the programs that state and territory governments also run. If we can educate our young that they need to be vigilant and they need to be careful, that does go some way, but that does not detract from the need to ensure that our laws are stronger.

The DEPUTY PRESIDENT: Thank you, Senator Duniam. The time for the debate has expired, and you will be in continuance.