Nick Xenophon (SA, Independent) Share this | Hansard source

It is with a great sense of privilege but also great sadness that I rise to speak on this bill today. It is a bill that I introduced several months ago. This is the second iteration of a bill to deal with what I and many others in the community believe is a very serious issue. Imagine this: you are the parent of a 14-year-old girl and she has been chatting online with a 20-year-old young man for months. From the photos online and what appear to be live feeds he is good-looking, charming, funny and a musician—except everything about this person is a lie. He is in fact a 47-year-old paedophile and, up until now, everything he has done is perfectly legal because under current online predator laws police need to actually prove the adult is grooming the child for a sexual purpose. So under our laws this online lying to a child does not matter even if a predator attempts to meet that child.

I believe it should matter. I believe the law should change. That is why I have introduced this legislation—the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013. I wish we did not need the provisions of this bill but, tragically, we do. My South Australian colleagues in particular will be familiar with Carly Ryan's story. In February 2007 15-year-old Carly Ryan, a beautiful vivacious young girl, was brutally assaulted and left to die at Horseshoe Bay in South Australia. When reports of her death were released, the entire state of South Australia and, indeed, the nation were shocked that such a beautiful young woman could be so brutally murdered. We asked each other what kind of monster could do this, and then we found out. Garry Francis Newman was a 47-year-old internet predator who had a history of trying to track young girls online. Police later found that he had over 200 fake online identities. To Carly he represented himself as 20-year-old musician Brandon Kane, and Carly fell in love with this fictitious character. That night at Horseshoe Bay she thought she was finally going to meet her online boyfriend in the flesh. Instead, a man who had taken advantage of her trust and innocence took her life. When police tracked Newman down 11 days after Carly's murder he was logged on to his computer as Brandon Kane and chatting to another 14-year-old girl in Western Australia. It should be said that after a long and dramatic trial for Carly Ryan's family Gary Francis Newman is now serving a life sentence for Carly's murder.

I acknowledge that we already have online grooming laws in Australia, but 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 that child to meet them in person. Because the current laws are too narrow, our enforcement authorities have one hand tied behind their back in the sense that they need to prove that the intention to meet that child is for a sexual purpose. I think that is simply too narrow. There ought to be an offence, albeit a lesser offence but an offence nonetheless, that can allow the police to act and intervene at an early stage to prevent harm being caused. The bill also includes a provision to make it an offence for an adult to misrepresent their age with the intent of committing any other offences.

I previously attempted to address this serious issue in 2010 with the earlier version of this bill. I acknowledge the concerns raised in relation to that bill. Effectively, what that bill said was that, if you lied about your age to a minor online, that itself was the offence. I acknowledge that that was too broad, even though you would have to wonder why an adult would consciously and deliberately lie about their age in communicating with a child. Unfortunately at the time the then South Australian Police Commissioner Mal Hyde said the proposed legislation cast the net too widely. Instead of acknowledging the problem, then Commissioner Hyde, in a submission to a Senate inquiry, narrowly focused on 'unintended consequences' of 'humorous, innocent and erroneous transmissions' that would, if legislation were to be passed, be a breach of the law. I think Commissioner Hyde and other law enforcement officers have not quite got it. This is about protecting children. This is about understanding and acknowledging that if an adult lies about their age to a child via online communications and wants to meet that child that itself should be an offence. You should not need to prove the sexual grooming aspects which make the legislation, I think, problematic. It means that there are enormous resources undertaken to catch these predators when we could actually intervene at a much earlier stage.

This bill was introduced this year with the encouragement and support of Sonya Ryan, Carly's mother. I want to pay tribute to the work that Sonya Ryan has done. Some people when they go through the terrible experience of losing their child—the worst of all possible experiences—crawl into a hole and just forget about life. She could have done that, but instead she fought back. She said she wanted to warn others about this. I have seen the video presentations that she gives at schools. Because they understand that it is a real experience, that it is not just some theoretical issue, the children who listen to Sonya's presentation are absolutely transfixed. They are mesmerised by what she has to say. They understand the whole of the detail of the danger. They understand what it can mean to be the subject of an online predator and what it meant in Carly's case. It is tremendous work that she is doing on an absolute shoestring—the Carly Ryan Foundation operates from Carly's old bedroom. I have been there. It is a fitting memorial and a loving memorial to the life of Carly Ryan. They get literally dozens and dozens of calls each week—thousands of messages each year—from people wanting advice: from parents and from children who do not want to approach their parents because they are scared that there will be some sanctions against them. There are so many cases that have been referred to the law enforcement authorities. There is close cooperation between the Carly Ryan Foundation and those law enforcement authorities. Just a few weeks ago, I was part of a meeting with SAPOL, the South Australian police, in relation to the work that Sonya is doing on behalf of the Carly Ryan Foundation.

I should say that at the beginning of this year Sonya Ryan was named South Australian of the Year and was one of the finalists for Australian of the Year for her tremendous work. It is a richly deserved award. Sonya Ryan believes that in addition to the advocacy work they do, the support they give to parents and children alike and the work that she does amongst schools and the general community the law needs to be changed in order to deal with this serious issue.

I know that further concerns were raised during the committee inquiry into this bill, particularly in relation to the ages specified in the bill and the use of absolute liability provisions. The Attorney-General's Department, in particular, stated their belief that the age provisions and the definition of what constitutes a minor in my bill are not consistent with other Commonwealth criminal law. In the bill as it stands a minor is considered to be someone under 18. However, as the department pointed out, the age of consent is usually set at 16 in Commonwealth criminal law.

The department also stated their concerns about the use of absolute liability provisions in relation to prosecuting an offence under this bill. I have circulated amendments to address these concerns. This is an example of why the committee process for dealing with bills is so important, and I acknowledge that. If a bill has technical flaws or issues that need to be addressed from a public policy point of view, the committee process is the way to deal with that through submissions, through evidence and through hearing from people who have considered the legislation. I appreciate what the Attorney-General's Department has said in relation to this; it seems to be the view of the Federal Police as well. I have circulated amendments to address those concerns. My understanding, and I am sure that I will be picked up by the Deputy Clerk if I am wrong in relation to this, is that the committee report for this bill has been tabled. Through you, Madam Acting Deputy President Moore, I understand it has been; I do not want to be subject to a Privileges Committee inquiry.