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

I also rise to speak on the Criminal Code Amendment (Protecting Minors Online) Bill 2017. As I outlined in my contribution to a previous iteration of this bill, brought to the Senate by Senator Kakoschke-Moore late last year, the Australian Greens are very sympathetic to the intent of this legislation. This legislation is obviously slightly different to the legislation that was previously debated, and it is essential to acknowledge the work of Senator Xenophon—in the previous parliament, and in the current parliament—and his colleague Senator Kakoschke-Moore and the work that they have done, including offering a briefing to the Australian Greens in our party room, which is very much appreciated by all of my colleagues.

I also want to acknowledge that this year is the 10th anniversary of Carly's death. Once again, I share in this forum the condolences of the Australian Greens to everyone who knew Carly and obviously to her close family members. We offer our genuine sympathies for the tragedy that has brought about a number of things, including this legislation.

In broad terms, the Greens are very supportive of legislative measures that address protecting children online. I do want to go to a couple of points raised in the recent inquiry into this bill by the Senate Legal and Constitutional Affairs Legislation Committee, a committee on which I sit. Firstly, I note the submission of the Australian Lawyers Alliance, which said:

Preparatory acts for crimes against children are already criminalised … It is thus unclear what the proposed provisions would add in terms of protecting children from harm. The need for this amendment has not been elucidated in the Explanatory Memorandum or second reading speech.

I will end that quote there.

The Law Council of Australia also made a submission to the Senate Legal and Constitutional Affairs Legislation Committee to the effect that the conduct which this bill seeks to address may already be captured by offences under section 474.26 of the Criminal Code, which are the provisions relating to using a carriage service to procure persons under 16 years of age, and section 474.27 of the Criminal Code, which relate to using a carriage service to groom persons under 16 years of age. The Law Council submitted further comments, and I will quote now from their submission:

… the Criminal Code need not proceed into this new territory. To do so would risk penalising a person for broad intentions which they may never have acted upon, or worse, risks exposing entirely innocent activity to ruinous prosecution.

I do want to place on the record today that the Australian Greens share those concerns raised by the Law Council of Australia and also by the Australian Lawyers Alliance through the inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. In broad terms, those concerns include concerns that the breadth of the offence contained in this legislation is wide, imposes liability very early in a process that may ultimately lead to criminal acts and also criminalises activities that at least potentially have no potential to cause harm. I also want to place on the record our concerns that communication with a young person is not required under the offence which this act would create. The person under 16 referred to in this bill does not need to be a specific individual, and the offence may in fact be able to be proved where a child is not even communicated with or even identified.

As I said, whilst we are incredibly sympathetic to the circumstances which have brought about the legislation that we are debating today and are very sympathetic to the intent of this legislation, the concerns that we have about this bill—concerns that have been raised with the Senate by the Law Council of Australia and by the Australian Lawyers Alliance, through the Legal and Constitutional Affairs Legislation Committee's inquiry—remain of deep concern to the Australian Greens.