Posted 18/08/2014 by Genevieve Butler
Fifty-year-old Gary Newman was sentenced to life in prison in 2010 for the brutal murder of 15-year-old Carly Ryan in 2007.
However, Newman committed no crime in posing online as 18-year-old Brandon Kane in order to meet Carly.
Senator Nick Xenophon says that is a gap in the criminal law which he hopes to close with his Private Members Bill, the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013.
The aim of the Bill is to make it an offence for a person over 18 years old to lie about their age in online communications to a person under 16 for the purposes of encouraging a physical meeting or with the intention of committing another offence (proposed section 474.40 of the Criminal Code Act 1995).
In Carly’s case, Newman had over 200 fake identities and a history of pursuing young girls online. Newman used one of his online identities to lure Carly to a meeting at a secluded beach at Port Elliot in South Australia, where he assaulted her and left her to die.
Senator Xenophon contends that the Bill closes an important loophole in the law.
“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,” he told Parliament in his Second Reading Speech.
Senator Xenophon says that under current online predator laws, police need to actually prove the adult is grooming the child for a sexual purpose. He considers that existing laws are too narrow, and is concerned that there are no laws directly addressing 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. He notes that there are few circumstances in which an adult can legitimately pretend to be younger than they are in order to meet a child.
Senator Xenophon believes there ought to be an offence that can allow the police to act and intervene at a much earlier stage to prevent harm being caused.
However, the Government argues that the existing criminal provisions sufficiently cover the relevant offending behaviour.
Section 474.26 of the Criminal Code covers using a carriage service (eg Internet or telephone) to procure children under 16 years of age to engage in sexual activity; section 474.27 relates to using a carriage service to "groom" children under 16 years of age; and section 474.14 sets out liability for using a telecommunications network with the intention to commit a serious offence.
Child sex-related offences were strengthened nationally in March 2010 through the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010. The amendments in this Act were designed to ensure that such offences were comprehensive and addressed contemporary forms of offending, such as using the Internet for indecent communications or sexual activity with a child.
The Attorney-General’s Department (AGD) has also noted that while the intention of the Bill is sound, it may criminalise conduct that is innocent and does not warrant criminal sanctions. AGD commented that lying about one’s age occurs in many social situations, including on the Internet and social networking sights such as Facebook. The Department gave the example of a person emailing a birthday party invitation to co-workers or family members who are under 18, and claiming to be far younger than they really were as a joke.
It is the third time that Senator Xenophon has proposed such a Bill before Parliament. The 2010 Bill lapsed at the end of the 42nd Parliament. The Senate Legal and Constitutional Affairs Legislation Committee considered the Bill in June 2010, recommending that it not be passed, citing a failure to incorporate an element of intent, and duplication of existing provisions.
The Bill was then considerably revised to take those issues into account, and reintroduced in February 2013, only to lapse in November 2013 at the end of the 43rd Parliament. The Committee reported on its inquiry into the Bill in June 2013, again recommending that it not be passed. The Committee considered that existing offences in the Criminal Code already criminalised online communications with children where there is evidence of intention to cause harm, and that the Bill was too broad in its application.
The current Bill, introduced on 12 December 2013, was further revised to address issues raised by the Committee in its report on the second Bill. It has again been referred to the Legal and Constitutional Affairs Legislation Committee, which is due to report on 4 December 2014.
The Committee held a public hearing for its inquiry into the Bill on 3 March 2014. Senator Penny Wright was concerned that the only aspect of the offence required to be proved is that the misrepresentation of age is for the purpose of encouraging the child to meet in person. Senator Wright expressed concern that people with intellectual disabilities not be caught in an offence where, for example, they had the level of thinking of a child, and wanted to meet young people simply because they were lonely.
Submissions have been received from government agencies, law societies and non-government organisations. The submissions concentrate on the adequacy of existing criminal offences, as well as the broad application of proposed section 474.40(1).