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

I move the amendment standing in my name on sheet 7664:

(1) Schedule 2, page 11 (after line 24), after item 14, insert:

14A At the end of Division 474 of the Criminal Code

  Add:

Subdivision H—Offences relating to use of carriage service with intention of misrepresenting age

474.40 Misrepresenting age to a person under 16 years of age

(1) A person (the sender) commits an offence if:

  (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and

  (b) the sender does this with the intention of misrepresenting his or her age; and

  (c) the sender does this for the purpose of encouraging the recipient to meet physically with the sender (or any other person); and

  (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

  (e) the sender is at least 18 years of age.

Penalty:   Imprisonment for 5 years.

(2) A person (the sender) commits an offence if:

  (a) the sender uses a carriage service to transmit a communication to another person (the recipient); and

  (b) the sender does this with the intention of misrepresenting his or her age; and

  (c) the sender does this with the intention of committing an offence, other than an offence under this section; and

  (d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

  (e) the sender is at least 18 years of age.

Penalty:   Imprisonment for 8 years.

474.41 Provisions relating to offences against section 474.40

Age -related issues

(1) For the purposes of section 474.40, evidence that the recipient was represented to the sender as being under or of a particular age is, in the absence of evidence to the contrary, proof that the sender believed the recipient to be under or of that age.

(2) In determining for the purposes of section 474.40 how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

  (a) the person's appearance;

  (b) medical or other scientific opinion;

  (c) a document that is or appears to be an official or medical record, whether created in Australia or in a country outside Australia;

  (d) a document that is or appears to be a copy of such a record.

(3) Subsection (2) does not make any other kind of evidence inadmissible, and does not affect a prosecutor's duty to do all he or she can to adduce the best possible evidence for determining the question.

(4) If, on a trial for an offence against section 474.40, evidence may be treated as admissible because of subsection (2), the court must warn the jury (if any) that it must be satisfied beyond reasonable doubt in determining the question.

Fictitious recipient

(5) For the purposes of section 474.40, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.

474.42 Defences to offences against section 474.40

(1) It is a defence to a prosecution for an offence against section 474.40 if the defendant believed at the time the communication was transmitted that the recipient was not under 18 years of age.

Note: A defendant bears an evidential burden in relation to the matter in this section, see subsection 13.3(3).

(2) In determining whether the defendant had the belief referred to in subsection (1), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.

(3) A person is not criminally responsible for an offence against section 474.40 if:

  (a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

  (b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

I alluded to this amendment in my second reading contribution on this bill. I accept and respect that the government wants to enhance online safety for children, and having an e-safety commissioner is an important step in respect of that process.

I previously introduced a bill in this place in respect of the misrepresentations made to children online. It arose out of the tragic circumstances of the Carly Ryan case, where Carly was murdered in 2007 as a result of an online predator misrepresenting his age to her. This person was contacting something like 200 young girls around the world and was misrepresenting who he was. He had misrepresented himself as someone who was in his late teens or 20 years old. Eventually when he met Carly on a beach at Horseshoe Bay in South Australia he murdered her. The Carly Ryan Foundation has been outspoken, passionate and reasoned in strengthening online safety, and it is on their behalf that I move this amendment. Sonia Ryan, the mother of Carly, has been a passionate advocate for the protection of children online.

I understand that this amendment goes beyond what the bill is purporting to do, but it is consistent with the theme of the bill—to protect children online. I will not be seeking to divide in respect of this amendment. I understand that it is not supported by the government or the opposition. I am still optimistic that there will be a process to work through with the Attorney-General's office, the minister's office and the parliamentary secretary's office in respect of communications.

Essentially, this amendment makes it an offence for an adult to misrepresent their age to a person under the age of 16—in other words, to a child—and, in addition, attempt to meet that child. In my second reading contribution, I said that, if a 50- or 60-year old man is communicating with a 13-year-old girl or boy and saying that they are a teenager as well and then attempts to meet them, that ought to be an offence. Under our current legislation you need to show a sexual intent. You need to show that it is for the purpose of grooming a child for sexual exploitation. I think that there is a gap in legislation in terms of online safety.

I say this without any rancour. I understand that I do not have the numbers for this, that the government and the opposition do not yet support this position. But I will patiently, with goodwill, work with my colleagues to keep raising this. I am raising it again today in the context of this amendment. If I can get an indication from the opposition and the government of what their position is, all I ask is that they keep the dialogue going in respect of this, because it is a loophole in our current laws. I am not suggesting that the offence should carry as heavy a penalty as there is for grooming or for sexual exploitation—obviously not—but this could be a very useful tool for our law enforcement agencies to nip in the bud behaviour that I think most Australians would say is wrong, and not just morally wrong; it ought to be wrong at law for an adult to lie about their age and, in addition to that, attempt to meet the child. Essentially that is what this amendment addresses. I am pleased that I had a meeting with the parliamentary secretary this morning. I will raise these questions with the Children's e-Safety Commissioner in due course. I am grateful for the ongoing dialogue I have had with the Attorney-General in respect of this, but to put it colloquially, in terms of 'the pub test', if you are a 50-year-old man contacting a 13-year-old boy or girl and you try and meet them, I reckon that should be an offence.