Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

For parents, protecting our children from harm is a duty that goes above and beyond nearly everything else. It should also be a first duty for parliament to make laws that protect children, some of the most vulnerable members of our society, from those who wish to do them harm. Keeping our children safe from predators has never been more challenging. This is because of one thing: the internet. For many parents, trying to monitor what their child is up to online seems nearly impossible. The internet is a vast place and our children learn far quicker than adults do how to navigate it and how to hide what they are doing. It is a world that often seems out of reach. So you can understand the anxiety that many parents have over who their child may be interacting with on the internet and their wish to see laws made by their elected MPs to help provide some protection.

This bill is a reflection of that wish. It has been driven by one parent in particular: Sonya Ryan, whose daughter Carly was let down by the law 10 years ago. Like millions of young Australians, Carly was an avid internet user. In 2006, at the age of 14, Carly started chatting with someone she thought was a 20-year-old musician named Brandon Kane. Tragically, Brandon Kane was not a real person, but one of many alternative identities of 50-year-old Garry Newman, an online sexual predator, who had a complex web of online alter egos that he used to groom underage girls. Carly was the first Australian girl to be murdered by an online predator, in 2007. Newman, who was arrested for Carly's murder while at his computer chatting to another underage girl online, lied about his age to Carly to gain her trust. At the age of just 15, Carly was lured to her death by Newman, and her short life ended in the most horrific way.

Carly's mother, Sonya, has since dedicated her life to finding ways to stop this ever happening again. The Carly Ryan Foundation, run by Sonya, has become an effective advocacy organisation for cybersafety, and has online fact sheets and counselling services to reduce the harm of online bullying and predatory behaviour. Sonya Ryan is a great Australian, fighting for the protection of Australian children like her Carly. All Australian parents owe her a debt.

The bill that is before the House for debate today is the result of her efforts. Although it has a long name, the Criminal Code Amendment (Protecting Minors Online) Bill 2017, it is known as Carly's law, because it has been brought to parliament in her memory. It seeks to allow police to intervene to stop an online predator at an earlier stage and thus play a greater preventative role. It amends the Criminal Code to insert a new offence for an adult to use a carriage service to prepare or plan to cause harm to, engage in sexual activity with or procure for sexual activity a person under the age of 16. For example, it would cover an older person using social media to masquerade as someone younger in order to convince a child to meet with them with the intent of causing that child physical or mental harm or to engage in sexual activity. In some ways the proposed legislation is similar to existing grooming laws at the state and federal levels, which have helped stop hundreds of online predators from hurting our children.

Making new laws which aim to regulate the internet or how it is used is inherently difficult. Nevertheless, it is important that our laws evolved to reflect new online threats. This is what Carly's law is driven by. This is the fifth version of Carly's law that has been introduced to parliament, and it is the only government bill. The other previous four attempts at legislation have been introduced by the Nick Xenophon Team, who are to be commended for their commitment to Sonya Ryan's cause and to this bill.

The first bill, the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010, was introduced in February 2010 and sought to criminalise an older person lying about their age to a person under the age of 18. It was the subject of a report by the Legal and Constitutional Affairs Legislation Committee of the Senate, tabled in June 2010, which recommended that the Senate should not pass the bill. This was for a number of reasons, including the committee's judgement that the bill was a duplication of existing procurement and grooming provisions and was too broad. The bill then lapsed at the end of the 42nd Parliament in September 2010.

The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 was then introduced in February 2013 and was the subject of another inquiry by the Legal and Constitutional Affairs Legislation Committee, with a report tabled in June 2013. This version of the bill introduced a new element of intent where the misrepresentation of age had to be done with the intention of committing an offence or encouraging a physical meeting. Again, the inquiry recommended that the Senate not pass the bill. This bill then lapsed at the end of the 43rd Parliament in November 2013.

In a submission to the inquiry, the Attorney-General's Department argued that there was a danger that non-criminal activity could be caught by the bill, such as an 18-year-old lying about his age to ask a 16-year-old out on a date. The bill was then re-introduced in December 2013 in a substantially similar form to the first version of the 2013 bill. The main difference in that bill was that it dealt with intentional misrepresentation of age to persons less than 16 years of age, rather than 18 years of age in the first version of the bill. This change was made because 16 years is consistent with the age of sexual consent in the majority of Australian states and territories. This bill was the subject of a third inquiry by the Legal and Constitutional Affairs Legislation Committee of the Senate, with a report tabled in August 2015. The inquiry recommended that further consultation be conducted on the bill prior to its consideration by the Senate. That bill lapsed at the 2016 election.

The fourth bill, the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016, was identical to the third version of the bill, and it was introduced by Senator Skye Kakoschke-Moore at the end of last year. In her second reading speech introducing the bill, Senator Kakoschke-Moore stated:

New forms of communication mean we need new laws to protect our children … Research conducted by the Office of the Children's eSafety Commissioner showed that teenagers spend 33 hours per week online outside of school …

…   …   …

… 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.

The government has now adopted the Nick Xenophon Team's agenda is its own. We are currently presented with the fifth bill, introduced by justice minister Michael Keenan 30 March 2017.

It is important to understand the specific measures contained in this latest version of the bill, as there are major differences to its previous versions. It is also very important to note here that every bill, no matter how noble its aim, should be heavily scrutinised to ensure that there are no unintended consequences that would arise from its implementation. Labor absolutely supports the intent of this bill, but it is important to ensure the principles of good law making are upheld and proper scrutiny is undertaken. With any bill, particularly those which involve the criminal law, it is key to ensure two things: first, that any new legislative measure will be properly targeted and effective, and will ensure prosecutions can be made; second, that it does not unintentionally capture activity which is not normally considered criminal.

As mentioned earlier, the most significant part of this bill is an amendment to the Criminal Code to insert a new offence: for an adult to use a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity a person under the age of 16. The penalty for this offence is 10 years in prison.

This bill is different to existing procurement or grooming offences because it is far broader. It targets preparatory conduct where an offender has not proceeded far enough for the conduct to be captured by those existing offences. For instance, it catches someone who has prepared to communicate with a minor online, even if they have not made any communication, and that is a significant difference from the earlier forms of this bill. It is something that will ensure that it is possible to capture, if you like, broadcast activity on the internet without the need for the prosecution to prove that a particular person has been the target of the communication, let alone has received the communication.

The bill also introduces the concept of 'harm' for the first time in the context of online protection for minors, which is defined as both physical and mental harm, whether temporary or permanent. The way in which the bill has been drafted provides that harm does not have to be inflicted for this offence to be committed; the offender must only be shown to be intending or preparing to cause harm.

In a submission to the Senate committee, the Law Council of Australia—which invariably does good work in commenting on legislation, particularly amendments to the criminal law—has noted that the aspects of the bill that I have just mentioned represent a significant departure from the traditions of the criminal law, which should be treated with caution. So-called preparatory offences are used very, very sparingly in Australian criminal law. At present, the only places in which we see preparatory offences are in the context of terrorism and child sex tourism.

The Law Council of Australia has noted in its submission that, in the case of this proposed legislation, the preparatory nature of the offence means that it may be triggered before there is any attempt to cause harm, procure or engage in sexual activity with a person under 16 years of age, and that actual communication with that person is not required. In fact, the offence can occur even before a child is identified by an offender, and that is indeed the element that I mentioned earlier where, unlike earlier versions of the bill, in this form of Carly's Law that is now before the parliament, it will not be necessary in order to establish the offence to show that a particular targeted child has been identified by the offender. The Law Council of Australia states in its submission:

This represents an extraordinary extension of criminal liability and there is a real risk that benign or otherwise unobjectionable conduct may be caught by the proposed offence.

That is a statement that should be taken into serious consideration when scrutinising this bill.

The Law Council of Australia goes on to express further concern about the element of harm introduced in this bill. The Law Council argues that causing harm to a person under the age of 16 is not in and of itself an offence, as defined in the Criminal Code. Therefore, what this bill does is to criminalise preparation for an act which is not of itself criminal conduct. As the Law Council points out, that is a very unusual provision to find in the criminal law—that is, to criminalise the preparation for an act or an attempt to perform an act when the act itself is not criminal conduct—and that is something that obviously will need to be looked at when this bill is considered further by the Legal and Constitutional Affairs Legislation Committee of the Senate.

I can assure Sonya Ryan, the Nick Xenophon Team and the government that Labor absolutely shares the noble aim of this bill to protect young people online. But we have to make sure that we get this right.

That is why I am very glad that the Legal and Constitutional Affairs Committee of the Senate is currently scrutinising this bill and is expected to hold a public hearing before producing a report on 13 June 2017. I do urge the government to take heed of the submissions put to the committee and to consider amending the bill in the Senate if necessary to reflect any committee recommendations. It is important that the proper consultation is done on this bill because we all want to see Sonya's noble aim to stop what happened to Carly ever happening again made a workable reality.

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