Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I thank Senator Kakoschke-Moore for bringing on the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2016 for debate, giving the Senate the opportunity to debate this incredibly important issue.

I want to say at the outset that the Australia Greens are very sympathetic to the intent of this legislation, which is to protect children from people who would prey on them, including to protect them from sexual predators. I also thank Senator Kakoschke-Moore and Senator Xenophon for engaging with the Australian Greens in providing me with a very detailed personal briefing on the legislation. We really do appreciate that and acknowledge the intent of that briefing, which was to constructively engage with all senators and all parties on this legislation. It demonstrates the very sincere intent which lies behind this bill.

I also want to acknowledge the tragic case in South Australia of Carly Ryan. Senator Kakoschke-Moore and others have referred to it in detail in their contributions, but I want to express on behalf of the Greens our deepest sympathies to Carly's family and friends and our admiration for Carly's mum and others, who have not simply lain down and accepted what happened to Carly but used it to spur themselves to fight to minimise the possibility of what happened to Carly happening to other children in our country. That is an entirely admirable role that they are playing in our public conversation and, at the moment, in our parliamentary conversation.

There is no doubt that those of us in this place—and I am one of them—who have friends who are parents or carers of children are aware of the amount of time that kids spend online these days and, frankly, the impossibility of parents or carers being able to adequately monitor the entirety of any child's online conversations and online interactions. As Senator Hinch said in his contribution, the rise in the popularity of mobile devices and various apps, which exist and will no doubt continue to be created into the future, means that our children's online communications are impossible to monitor. It makes it difficult as parents or carers to fulfil the responsibility that we all have to the children in our care to do everything that we can do to protect them from harm.

We understand that this bill seeks to amend the Criminal Code Act 1995 to create a criminal offence for a person over 18 years of age to intentionally misrepresent their age to a person they reasonably believe to be under 16 years of age in online communications for the purposes of encouraging a physical meeting or with the intention of committing an offence. We are also aware of the history of this legislation—the various iterations that it has gone through. We believe this is the fourth version of this bill, tabled previously by Senator Xenophon and now by Senator Kakoschke-Moore. The fact that it has been amended four times is, again, a reflection of the sincere intent behind this bill from Senator Xenophon and Senator Kakoschke-Moore. It reflects their genuine desire to learn from the various responses to this legislation, including in committees of this House, to try to address these concerns in a way that preserves the intent and the integrity of this legislation, and to also respond to concerns raised around potential unintended consequences that this legislation may have.

We have been diligent in assessing various committee reports and acknowledge that the previous committee report in 2013 has, again, resulted in this legislation being changed and updated. We have also had a look at the provisions currently in the Criminal Code, including the prohibitions on using a carriage service to procure persons under 16 years of age, using a carriage service to groom persons under 16 years of age, and using a carriage service to transmit indecent communication to person under 16 years of age. As I said, this bill proposes that a person who misrepresents their age, which currently of itself is not illegal, as a preliminary to having a meeting with someone, which is also currently not illegal, should be guilty of an offence. We have gone through the various submissions to previous inquiries. We have noted a range of submissions, including from the Law Society of South Australia which submitted:

Part of the problem with the offence provision is that it seeks to criminalise behaviour which is not inherently criminal.

The Law Society of South Australia goes on to say:

The intent is to criminalise a preparatory step in the process of committing a crime. However, in attempting to do so, it will capture many situations it does not intend to.

Senator Xenophon has stated:

… the proposed legislation would close an important legal 'loophole', as there is no reason for an adult to knowingly misrepresent their age to someone they believe to be under 18 years of age.

The Greens want to be very clear that, of course, there are situations, including the situation that this bill intends to address, where an adult would misrepresent their age to a young person online for extremely nefarious purposes, including to groom that young person for the purposes of committing harm, including potentially sexual harm, on the child, but we still retain concerns that this bill may have unintended consequences. I will not go into all of the unintended consequences that we have concerns about, but what I do want to say is that we stand absolutely ready to continue to engage with Senator Kakoschke-Moore and the Nick Xenophon Team on this proposed legislation in the hope that our concerns can be addressed in a further iteration of this bill.

The prevention of online grooming of children is a massive challenge for our community and our society and therefore must be seen as a massive challenge for this parliament. We need to make sure we work rigorously and, I believe, collaboratively on this issue, because I have no doubt that every member of this place and the other place would regard the online grooming of children as abhorrent, disgusting and something that we need to work on together to make sure we can prevent to the very greatest extent possible.

The Australian Federal Police have stated:

Online grooming is when an adult makes online contact with someone under the age of 16 with the intention of engaging in sexual abuse. The offence is committed in the communication phase so no physical contact need ever occur for police to step in, investigate and arrest offenders. It is a very serious offence, but is not the most common challenge faced by children and young people online.

The AFP recommends that all children and young people know how to manage any approach online by someone who may seek to groom them:

At times, young people may feel as though they are in control of a situation and are just “playing around” without realising how quickly the balance of power shifts and they are being controlled by the offender. It is never too late to report suspicions of online grooming, but the sooner it is identified, the less harm may occur.

I think the lesson for us all here is that while there may well be an appropriate legislative response to this problem, that should never be the entirety of our response as a community to this challenge. It is incumbent on all of us as parents, carers, or concerned members of this parliament and of our community to make sure that children are aware of the dangers of people misrepresenting their circumstances online with the intent to groom or to cause harm—to make sure that children know they can come to the adults in their life if they have concerns that someone is misrepresenting themselves online to them, and that there are opportunities and remedies available to them. We all have a responsibility to play as community leaders and, in the circumstance of many of us, as parents or carers of children.

Having said that, we stand ready to continue to engage with the Nick Xenophon Team on the provisions of this bill, because we believe it certainly is possible that concerns which have been expressed around unintended consequences can be addressed through further iterations of this legislation. As I said, we stand ready to work constructively to identify whether there are gaps in protections offered in statute for children from online predators and, if so, how those gaps can be filled.

Again, I thank Senator Kakoschke-Moore for giving us the opportunity to debate this really important issue in the Senate today. The Australian Greens and I, as portfolio-holder in this area for the Greens, look forward to continuing to work with her and the senators on the Nick Xenophon Team on this really important issue.