Chapter 11 Legislative basis
Australian law and the online environment
Responsibility for combating crime in the online environment is shared
between the Commonwealth, the States and the Territories. The Commonwealth has
responsibility for matters across or outside Australian jurisdictions, while
the States and Territories generally have domestic responsibilities.
Appendix E contains additional information on other relevant laws of
each State and Territory and those of the Commonwealth.
Australian Government responsibilities
In May 2010, the Standing Committee of Commonwealth and State/Territory
Attorneys-General agreed to establish a National Cyber-Crime Working Group to
enable jurisdictions to work cooperatively to combat cyber-crime. Since its
first meeting in July 2010, the National Cyber-Crime Working Group has
conducted a scoping study of existing mechanisms for reporting online crime. It
has also prepared a discussion paper on options to improve current reporting
arrangements, including the creation of a centralised online reporting
facility. Setting up such a body will be the subject of a feasibility study.
This is an example of work being done to consolidate material, so that
those in the online environment receive consistent messages delivered centrally
During the 2010 National Cyber Security Awareness Week, the publication Protecting
Yourself Online – What Everyone Needs to Know was launched. Over 120,000
copies of the book and 270,000 copies of the pamphlet have since been
distributed. This material has been updated for National Cyber Security
Awareness Week in 2011.
The Attorney-General’s Department has also produced ID Theft –
Protecting your Identity. It provides practical strategies for Australians
to protect themselves against becoming a victim of identity theft, and what to
do if it happens. Since it was launched in 2009, over 60,000 copies have been
distributed to individuals and police agencies for use in crime prevention. It
is also used in training courses run by the private sector and by
On 30 April 2010, Australia announced its intention to accede to the
Council of Europe Convention on Cybercrime (2001). This is the only
multilateral treaty in force that specifically addresses cyber-crime. Its main
objective is to pursue a common criminal policy aimed at the protection of
society against cyber-crime, through the adoption of appropriate legislation
and fostering international cooperation.
The Convention requires participating countries to create offences for
certain activities. It establishes procedures to make investigations more
efficient, and promotes greater international cooperation using existing
regimes, including mutual assistance and police-to-police assistance.
The Department noted that the Criminal Code Act 1995 (Cth)
already contains comprehensive offences dealing with the misuse of
telecommunications, and cyber-crime. These offences were framed in
‘technology-neutral’ language to ensure that they would remain applicable as
the online environment evolves. Thus, ‘computer’ was not defined so that
offences would encompass such new developments as mobile phones with Internet
access. Offences such as hacking into another person’s Facebook account, altering
it, or using malicious software to steal personal information, are also
Other offences criminalise the inappropriate use of telecommunications,
including the Internet. These offences include using a ‘carriage service’ in
the online environment to menace, harass or cause offence, threats to kill or
cause harm to a person, or to use such a service for child pornography.
Further amendments to Australian legislation are required to enable
compliance with the Convention, including those which:
- clarify that domestic
law enforcement agencies can apply for the preservation of stored
- enable the
preservation of stored communications and associated telecommunications data at
the request of foreign law enforcement agencies, and
confidentiality in relation to the preservation of, access to and disclosure of
stored communications and telecommunications data.
The Australian Federal Police (AFP) noted that the Convention provides
benefits to law enforcement authorities, as it contains procedures to make
investigations more efficient. It also provides systems to facilitate
international co-operation, including:
helping authorities from one country to collect data in another;
empowering authorities to request the disclosure of specific
allowing authorities to collect or record traffic data in
establishing a 24 hour/seven days per week network to provide
immediate help to investigators, and
facilitating extradition and the exchange of information.
However, the Convention cannot be seen as a quick solution to the difficult
problem of international evidence and criminal intelligence sharing. The AFP commented
that more work needs to be done on ensuring that international law enforcement
has the ability to exchange evidence and intelligence in a timely fashion.
The capacity to collect evidence in Australia is arguably more limited than
some other jurisdictions.
Australian Federal Police
The AFP is a member of the Consultative Working Group on Cybersafety. It
works closely with other law enforcement and government agencies, industry, non-government
organisations, content service providers, banks, education agencies and
It has a number of roles in cyber-safety issues:
to target and investigate technology crime including child
pornography and paedophile behaviour in the online environment;
to provide a police presence in social networking sites, and
to contribute to broader prevention strategies such as
Specific objectives are to enhance its contribution to combating
technology crime impacting Australian families by:
actively targeting the production and distribution of online
child sex exploitation images;
creating a hostile environment on the Internet for online
offenders through the development of active and innovative methods of informing
potential offenders of the risks involved in their activity;
increasing research into the evolving digital landscape and
emerging threats to better predict trends and capabilities and develop active
targeting, prevention and disruption strategies for online crimes, especially
those involving child victims;
promoting community awareness through active liaison with
government and non-government organisations such as educational agencies and
developing and implementing an Australian National Victim Image
developing and implementing a training and welfare strategy to
deal with identified risks associated with teams working within the online
child sex exploitation arena.
The AFP is also responsible for the development and implementation of a
covert capacity to identify, target and investigate online predators,
purchasing software similar to that used by offenders;
purchasing software for the collection of evidence;
implementing and maintaining a covert and an overt police
presence on the Internet;
purchasing non-government specification hardware from
maintaining an online presence including warnings in chat rooms
relating to potential predatory behaviour, utilising the Virtual Global
Taskforce as appropriate, and
‘deterrence initiatives’, such as redirection of all ‘take down’
sites to warning sites requiring the development, implementation and installation
of the software required.
Community education remains one of the most important elements of crime
prevention. Through initiatives such as Cybersafety and the Thinkuknow
program, the AFP engage with community groups, parents/carers and school-aged
children. In the first nine months of 2010/2011, it delivered 51 Cybersafety
presentations to 8,130 participants, and 118 ThinkuKnow presentations to
ThinkuKnow involves presentations by trained volunteers, and a
comprehensive website which provides additional information and resources. The
themes of ‘Have fun’, ‘Stay in control’ and ‘Report’ form its focus in both the
presentations and on the website launched in February 2010. It aims to open
lines of communication between parents/carers and children, so that the
Internet is as much a topic of discussion as events at school that day. The ThinkuKnow
button forwards the contact details to the police and this can be followed up.
The AFP also embarks on a program of cyber-safety awareness
presentations at schools in regional NSW and Victoria, and the ACT. This Youth
Education Program is designed to make young people think of the consequences of
what they do online. The presentations are backed up by Fact Sheets made
available on the AFP website, and in hard copy. This program also makes young
people aware of the need to protect their images and reputations by being
careful of with whom they communicate.
Older computer users are also at risk online. The AFP delivers sessions
to such users on how they can protect personal and financial information,
secure wireless connections and conduct secure banking online.
The AFP is also involved in annual National Cyber Security Awareness
Weeks, which demonstrate the importance of working together to achieve a safe
online experience for all.
Online crime is borderless and evidence can be transitory, highly ‘perishable’
and often located overseas. A key issue for law enforcement is therefore an
effective and efficient legal framework for the exchange of information and
evidence with overseas authorities.
There are two ways the AFP can engage with overseas law enforcement
agencies for the provision of information:
on a police-to-police basis, or
via the Mutual Assistance in Criminal Matters Act 1987
For evidence to be used, the latter approach is required. While its
operations are under review, this Act is based on the historical legal
framework and its operations ‘can be cumbersome’, unlike online technology
which acts very quickly.
The Virtual Global Taskforce is among the international forums of which
the AFP is a member. In December 2009, the AFP became the Chair of this body,
made up of police forces from around the world working to fight online child
abuse. Its objectives are:
to make the Internet a safer place;
to identify, locate and help children at risk, and
to hold perpetrators to account.
The AFP hosted a conference of the Virtual Global Taskforce in December
2010. A key outcome was an agreement for international law enforcement agencies
to work with international industry partners, non-government organisations and
the academic sector to find ways of increasing child safety in the online
environment, and to remove children from harm. The Virtual Global Taskforce is
working towards developing an effective method for the exchange of information
and evidence with overseas partners, including sharing international ‘hash
values’ given to identify every child abuse image seized.
The AFP also has regional alliances via such bodies as the Australia and
New Zealand Police Advisory Agency Child Protection Committee, and the Jakarta
Centre for Law enforcement Cooperation, to combat online child sex
The AFP has had a senior member seconded to work in an information and
communications technology company in the United States to learn from industry.
Mr Mark Newton commended the AFP:
The AFP retains world-recognized expertise in tackling
criminals who groom children, online and off. Their Online Child Sexual
Exploitation Taskforce (OCSET) is capable and effective, and deserves
significant expansion ... An adequate response to sexual grooming would be to
increase the resources available to the AFP so that they are better able to
investigate and arrest child abusers.
As the Australian Institute of Criminology noted, mutual assistance
treaties present problems for all trans-national police investigations, so that
there is ‘probably’ a need to improve the speed of undertaking inquiries.
Nonetheless, gathering evidence across jurisdictions and conducting
prosecutions is ‘bound to be difficult’.
Ms Sarah Chidgey from the Attorney-General’s Department commented:
In terms of the proposed reforms to mutual assistance in
criminal matters laws, as I mentioned, there was the release of a second
exposure draft of those reforms. Our consultation period has just run for six
weeks; it concluded on 14 March. Those reforms are designed to promote more
responsible and flexible measures to secure international crime cooperation.
Some of the things that those proposed reforms would do are to streamline the
process for providing lawfully intercepted material and covertly accessed
stored communications, to allow for covert access to stored communications and
surveillance devices, and provide existing telecommunications data on a
police-to-police basis. It is particularly valuable, as Commander Edwards
mentioned, as the police-to-police mechanisms can operate a lot faster than the
more formal mutual legal assistance mechanisms.
Finally, those reforms would also enable collection and
transmission of prospective telecommunications data. In terms of where that
process is at, a number of submissions have been received as part of the
The South Australian Police Force noted that, because applications for
assistance must often go to foreign regulators, the current process for the
administration of applications under such treaties ‘rarely’ produces timely
investigative outcomes. It further commented:
Whilst Facebook have stated that they can respond to a Mutual
Assistance request in 10 days, the Attorney-General's office has stated that it
will take them at least 6 months to process the request before it is forwarded
to Facebook. The uptake in the use of social networking dictates that law
enforcement will require content from overseas providers on an ever increasing
basis. There is a very real need to improve the process for obtaining
information or court outcomes could likely be affected.
There is a substantial fee incurred for law enforcement agencies
requesting details of accounts in situations which are not life threatening.
Mr Stewart Healley commented:
Reluctance from experience of doing all the investigation
work for a brief to have the Offenders Solicitor convince the Magistrate to
treat the incident lightly with a warning and no penalty or even dismissed the
Charges, reinforcing the Court Message to the Offender “go do what you like”
and to the Victim – “SORRY”.
In one situation, the Victorian Police were able to contact an online
bully via Facebook in a situation where they could not physically locate them
to serve an appropriate warning.
State and Territory responsibilities
The various codes criminalise some abuses, making them punishable by
lengthy periods of imprisonment.
New South Wales
Offences under NSW legislation include:
Stalking or intimidation intending to cause fear of physical or
mental harm. It explicitly catches conduct involving the use of devices such as
‘telephone, telephone text messaging, emailing and other technologically
assisted means’; and
Grooming a child under 16 years of age for unlawful sexual
activity. It also makes provision to capture online conduct and similar means
The Communications Law Centre noted that NSW is currently the only
Australian jurisdiction that explicitly criminalises cyber-bullying by school
children. While section 60E of the Crimes Act 1900 (NSW) makes it an
offence when a person ‘assaults, stalks, harasses or intimidates’ any school
staff or student while attending school, it does not cover bullying outside
While Victoria does not directly regulate social networking, under the Crimes
Act 1958 (Vic) it has the power to prosecute crimes which may arise from
actions taken on such sites, such as:
threats to kill;
stalking, including repeatedly using the Internet to publish
material designed to make someone else apprehensive;
abduction with intent to rape, and
sexual penetration of a child under 16 years.
A Personal Safety Intervention Orders Bill has been introduced.
If enacted, this will provide better protection against stalking and behaviours
such as bullying and Cyber-bullying.
Under amendments made to the Sex Offenders Registration Act,
registered sex offenders must provide additional persona details such as
Internet, instant messaging, Facebook and chat room user names, or any other
user names or identity used by the person on the Internet or through other
South Australian Police noted that the State’s laws did not specifically
mention the online environment. They are, however, designed to deal with the
opportunities that the Internet and other platforms provide for predatory
As cyber-bullying is not a criminal offence, South Australian Police
does not maintain statistics of the complaints it received.
Some of the associated behaviour, such as cyber-stalking and unlawful threats,
are criminal and are investigated. Anecdotal evidence suggested that cyber-bullying
is rising with the increasing use of technology, although bullying appears to
be decreasing in South Australian schools.
South Australian Police regularly received reports of privacy breaches,
generally from concerned parents who were aware of images of their children
placed on social networking sites without permission. Because of restrictive
legislative provisions, most of these incidents were not criminal. South
Australian Police investigated where the intent was to commit a serious
offence, such as the posting of intimate images without permission, stalking or
Use of social networking sites by young people regularly required South
Australian Police to obtain information from sites such as Facebook to identify
criminal activity and safeguard children. It also had some concerns about
mutual assistance treaties.
South Australian Police regularly cooperated with other agencies, inside
and outside the State, including the Australian Communications and Media
Authority (ACMA) and the Australian Competition and Consumer Commission. While
material from such bodies was of a high standard, more agencies were developing
their own strategies and South Australian Police believed that there was a risk
that messages about safety and security in the online environment would become
Through the WatchSA Program, South Australian Police personnel trained
in aspects of Internet safety, including issues for parents/carers and
adolescents about computer security, scams, etc. The force had developed
related packages about the use of technology, including a document on
cyber-bullying and e-crime that was distributed to all schools in South Australia
There is no specific cyber-bullying legislation in Western Australia
but, depending on the case, there may be scope for police involvement as
threats and stalking are covered in the State’s Criminal Code.
Western Australian Police drew attention to the use of technology to
identify known images to prevent their distribution on peer-to-peer networks.
For it to be successful, this initiative would require the cooperation of ISPs
across Australia. If adopted, this technology would automatically be able to
filter out child exploitation material.
Identification of this material is being addressed through a national
information technology project which would allow police to compare
automatically seizures of child exploitation material against a known data
base. This would speed up the assessment of unknown images, potentially
identify victims and contact likely offenders.
Law enforcement agencies have been built around traditional physical or
imaginary boundaries and dealing with the physical world. Western Australian
Police noted, however, that the online environment had broken these boundaries
between jurisdictions, both nationally and internationally.
There has also been fragmentation of agencies across Australia, and
within agencies, so that ACMA used one cyber-safety program (CyberSmart)
and the AFP another (ThinkUKnow). The reporting of online offences is
fragmented between the West Australian Crime Squad, ACMA and the AFP. Western Australian
Police also drew attention to duplications and gaps in services offered by
existing agencies, citing different approaches to investigation of online
offences by State police forces.
In Western Australia, although there is scope for further reductions,
this fragmentation had been partially addressed, as its Online Exploitation
Squad is now co-located with the AFP’s Child Protection team.
Within Western Australian Police, the Office of Crime Prevention is
exploring the role of crime prevention officers in cyber-safety, while for
operational reasons the Online Child Exploitation Squad has retreated from
Related to fragmentation is the fact that technological advances within
the online environment are outstripping law enforcement agencies’ abilities
adequately to resource investigations. The ever-increasing capacities of
platforms is a major challenge for police forces, and an argument for a
centralised agency within Australia with broad powers to investigate, advocate
and act on cyber-safety issues.
The Force believed that there is an argument for a centralised national
agency within Australia with broad powers to investigate, advocate and act on
Tasmanian Police regularly engage with school communities in a range of
educational campaigns which included general information on online safety. They
supported the Tasmanian 2010 Crime Stoppers Youth Challenge which targeted
e-safety, in which children examined crime and community safety-related issues
and developed strategies to address them.
While people have been charged with online offences, few cases have
involved children. There have been several instances of sexual grooming of
children, but the extent of this abuse in the State is difficult to gauge as it
is likely that many of these incidents are not reported.
This force did not see cyber-bullying as primarily an issue for police.
Where it became stalking, there is a role for law enforcement but, in less
serious cases, it is a parental and educational issue because police involvement
can make incidents more difficult to resolve.
Sanctions against cyber-bullying
As observed in Chapter 3, there has been little detailed examination of
the legal issues associated with bullying, and even less of those involving
cyber-bullying. In particular, schools’ responsibilities under civil law, and
the criminal ramifications of this conduct, are not well understood.
The Attorney-General’s Department advised that serious instances of
cyber-bullying may constitute an offence under Commonwealth law. It is an
offence to use the Internet or a mobile phone in a way that a reasonable person
would consider to be menacing, harassing or offensive, and it carries a maximum
penalty of three years imprisonment. The Criminal Code sets the age of criminal
responsibility for Commonwealth offences at 14 years. A child aged ten years or
more, but less than 14 years old, can only be criminally responsible if she/he
knows that the conduct is wrong. The onus is on the prosecution to establish
awareness of wrongdoing beyond a reasonable doubt.
Professor Marilyn Campbell expressed the view that:
Even though there are not so-called specific
anti-cyberbullying laws, there are enough criminal justice laws on
cyberstalking, harassment and telecommunications that, if you wanted to
criminalise a child’s behaviour, the laws are there—except that, as you know,
children under 10 are not held criminally responsible for their actions no
matter what they do. Between 11 and 14, it is up to the court to decide whether
they intended to commit a criminal act. So it is not about knowing it was
naughty and knowing it was wrong and responding to something and not thinking
before they clicked. It is about whether they intended to commit a criminal act
and whether they then went ahead realising that it was a criminal act.
She added that:
Where we need to use the law is in civil litigation, and that
is not going to be against the kids and not against the parents; that is going
to be against the schools because they are the ones that have got the money.
The Attorney-General’s Department also noted that criminal legislation
at State/Territory level allows for the prosecution of harassing, threatening
and intimidatory behaviour through a combination of assault, threatening and
stalking offences. These jurisdictions can also rely on offences in the
Commonwealth Criminal Code which directly address these abuses.
The Alannah and Madeline Foundation believed that, because the
relationship of bullying to cyber-bullying is integral to the abuse, responses
would be best focused on behavioural change in the school and beyond. These
would be most effective when developed collaboratively, involving school
personnel, parents/carers, young people, the Internet industry and the wider
community. The Family Online Safety
stresses the importance of differentiation between teasing or
mean comments and actual criminal harassment. Instead of criminalization, the
solutions should include education, empowerment and the use of website tools
and services to mitigate the likelihood that children will fall prey to
cyberbullying. The Cybersmart Hero program that is being run by the Australian
Communications and Media Authority (ACMA) is
a good example of a way to engage children in working towards a solution. The
Cybersmart Hero program requires children to work together online, with
professionals, to solve a real time cyberbullying-themed problem. Since it is
often children who are witnesses to cyberbullying, this education initiative is
vital to lowering these occurrences. It also emphasizes the importance of
education rather than criminalization.
The Communications Law Centre noted that Australia’s reluctance to
legislate more specifically against cyber-bullying is reflected in the United
States where some States encompass it in general anti-harassment laws, or
within computer crime statutes. The right to freedom of speech is also seen as
a barrier to extensive cyber-bullying legislation, as it may curb the bullies’
It also argued that Australian legislation should provide ‘clear and
adequate recourse’, particularly for victims of cyber-bullying.
Sanctions against cyber-stalking
All Australian jurisdictions have laws dealing with cyber-stalking.
Victoria and Queensland have explicitly extended the definition of the crime to
include the sending of electronic messages.
Mr Stewart Healley commented that:
The anti-stalking legislation has a number of advantages as a
means of addressing cyber bullying. First, a wide range of hostile behaviour
falls within its ambit which in itself need not be criminal. For example, a threat which is merely implicit
rather than explicit would still be caught. Secondly, while there are
differences between jurisdictions in relation to the offender’s requisite
intent and the required state of mind (if any) of the victim, it is usually
sufficient that the offender, by means of repeated conduct (other than in
Queensland, which refers to ‘at least one occasion’), intends to induce in the
target an apprehension or fear of violence or harm (which in most Australian
jurisdictions includes the intention to cause the target either physical or
mental harm). Accordingly this offence is well suited to cases of cyber
bullying, where the purpose is normally to cause emotional, rather than
physical, harm and distress.
The Criminal Code Act 1995 (Cth) also includes offences relating
to cyber-stalking, including:
Using a telecommunications network intending to commit a serious
offence. This is intended to be broad and cover the use of the Internet or
other applications to commit such offences as fraud or stalking;
Using a carriage service to make a threat. This is intended to
cover threats made over the Internet to kill or cause serious harm; and
Using a carriage service to menace, harass or cause offence. This
is intended to cover online conduct that a reasonable person would find to be
menacing, harassing or cause offence.
The Australian Institute of Criminology noted that there are
difficulties in drafting anti-stalking legislation because not all behaviour is
criminal. Mining information about
a potential victim from publicly available information, such as profiles on
social networking sites, is not illegal, nor is posting non-threatening
messages. Ms Sonya Ryan believed that young people need to be encouraged to use
links to certified sites to avoid people who, to seek to entrap them for
criminal purposes, pose as celebrities online. When such activities are
repeated over a period in an unwelcome way, these seemingly inoffensive acts acquire
menacing overtones for the target.
Mr Healley commented:
All Australian jurisdictions now have stalking legislation
proscribing behaviour calculated to harass, threaten or intimidate ...Common
examples include following the target, sending articles to the target, waiting
outside or driving past the target’s home or place of work, and repeated
contact by phone, email or text ... They are therefore of particular relevance
to cyber bullying where, like all cases of bullying, there is a similar exploitation
of power imbalance.
Sanctions against sexual grooming
Responsibility for combating sexual exploitation of children is shared
between Australia’s jurisdictions. The States and Territories are generally
responsible for offences related to this abuse within their jurisdictions. The
Commonwealth has traditionally enacted laws dealing with these offences
occurring across or outside these jurisdictions, e.g. child sex tourism and
offences involving the online environment.
In 1995, the Commonwealth first enacted legislation targeting the use of
a carriage service, the Internet or mobile phone for sexual activity with
children. This included grooming and procuring. The operation of this
legislation was enhanced in 2010 by including increased penalties, and it now
covers the following offences:
Using a carriage service to transmit a communication with the
intention of procuring a person who is, or who the sender believes to be, under
16 years of age to engage in sexual activity (procuring);
Using a carriage service to transmit a communication with the
intention of making it easier to procure a person who is, or who the sender
believes to be, under 16 years of age to engage in sexual activity (grooming);
Using a carriage service to transmit an indecent communication to
a person who is, or who the sender believes to be, under 16 years of age.
Over 400 predators are arrested by police each year and this number if
increasing. Ms Ryan commented:
- Not all of these people are always prosecuted, because of
legal loopholes or different things that happen. But that is a statement that
the cybersafety police in WA made, that they are just scratching the surface
and they do not have the manpower on the ground to be able to really penetrate
The ACT Council of P&C Associations called for the Australian
- follow a similar action as the
USA in pressuring SNS to delete known sex offenders registered in Australia. In
February 2009, MySpace deleted 90,000 profiles of sex offenders registered in
the USA which was made possible as part of an agreement between the website and
state attorneys general. It is recommended that the Australian Government
introduce a similar agreement with popular social-networking sites to restrict
access for known sex offenders in Australia.
Sanctions against sexting
Under Commonwealth legislation, there are only criminal implications for
sender and receiver if an image constitutes child pornography. Distributing
other images can be a form of cyber-bullying if a young person is coerced into
posing, or if images are distributed without consent.
Images distributed in this way may also be picked up by pornographers
and could be used to blackmail the subject. Originators could be charged with
making child pornography, and the person receiving it with the e-crime of
disseminating that material.
Under proposed changes to the Sex Discrimination Act to be
introduced by the Australian government, young people who have experienced
cyberbullying and online sexual harassment will be given legal protection, and
victims under the age of 16 allowed to use sexual harassment laws to pursue
The Victorian Office of the Child Safety Commissioner added that:
We support strong and effective sanctions against adults who
produce and distribute child pornography or otherwise use technology to groom
or abuse children. The more challenging issue for legislative and policy reform
is how to respond to children who engage in such behaviours.
The Commissioner would like to see consideration given to:
whether criminal sanctions are the most appropriate response
to such conduct, if so under what circumstances they should be used, and what
other options might be most effective.
Family Voice Australia argued that laws should be applied to the
possession of child pornography in the context of sexting, provided law
enforcement authorities had discretion to dissuade one-time offenders from
repeating the offence.
In Australia, 32 Victorian teenagers were charged with child pornography
offences resulting from sexting. Many young people are
unaware that sexting may be considered a criminal offence.
Sanctions against illegal or inappropriate content
The Australian Library and Information Association also called for more
funding to increase the effectiveness of policing of illegal material on the
Promotion of suicide
It is an offence to use a carriage service to access, transmit, make
available, publish or otherwise distribute material that:
counsels or incites committing or attempting to commit suicide;
promotes a particular method of committing suicide, or
provides instruction on a particular method of committing
For the offence to be made out, the person must intend to use the
material to counsel or incite suicide, or for it to be used by another person
to counsel or incite committing or attempting to commit suicide.
A preparatory offence has been created if a person possesses, produces,
supplies or obtains suicide-related material with the intention that it be used
in committing an offence.
Breaches of privacy and identity theft
Recognition of the threats posed by identity crime has led to a number
of measures directed at preventing online identity crime through systematic
improvements to the national identity management system.
The centrepiece of this response is the National Identity Security
Strategy, endorsed by the Council of Australian Governments in 2005. This
Strategy is a cross-jurisdictional, whole-of-government approach which
emphasises the following six elements:
Development of a national document verification service to combat
the misuse of false and stolen identities;
Improving standards and procedures for enrolment and registration
for the issue of proof of identification documents;
Enhancing the security features on proof of identification documents
to reduce the risk of incidence of forgery;
Improving the accuracy of personal identity information held on
Enabling greater confidence in the authentication of individuals
using online services; and
Enhancing the national interoperability of biometric identity
These measures are intended to make it more difficult for criminals to
create new identities or incorporate fabricated or inaccurate information into
false identification credentials.
In March 2011, the Law and Justice Legislation Amendment (Identity
Crimes and Other Measures) Act 2011 (Cth) inserted three new identity
crimes into the Criminal Code:
- Dealing in
identification information with the intention of committing, or facilitating
the commission of a Commonwealth indictable offence;
- Possession of
identification information with the intention of committing, or facilitating
the commission of, conduct that constitutes the dealing offence; and
- Possession of
equipment to create identification documentation with the intention of
committing, or facilitating the commission of, conduct that constitutes the
That Act also contains measures to assist victims of identity crime,
allowing a person who has been the victim of identity crime to approach a
magistrate for a certificate to show they have had their identity information
misused. The certificate may assist victims of identity crime in negotiating
with financial institutions to remove fraudulent transactions, and other
organisations such as Australia Post, to clear up residual problems with
The Communications Law Centre commented that opportunities for criminal
acts in the online environment will continue to increase, as it becomes further
intertwined with the everyday lives of both adults and children/young people.
One of the biggest frustrations identified by some school principals is
the inability to trace cyber-bullying when bullying has an impact in a school.
Compounding this is the inability, even with police support, to have harmful
and inappropriate content removed from websites. This also has implications for
cyber-bullying of teachers, and this is considered in Chapter 9.
Part 13 of the Telecommunication Act 1997 (Cth) allows law
enforcement agencies to make certified and uncertified requests for the
disclosure of customer information. Mr Stewart Healley commented that:
For an uncertified request, the ISP must be satisfied that
the disclosure of information is reasonably necessary for the enforcement of
criminal law... Certified requests are those where a senior officer of a criminal
law enforcement agency that the disclosure is reasonably necessary.
The South Australia Police raised the issue of information required for
Access to mobile Internet Profile (IP) data which can be used
to identify an Internet user is now also impacting upon law enforcements
ability to investigate matters. Companies such as Optus and Telstra have
informed that IP data is not available after relatively short periods of time
(up to one month only). In many cases, IP data is not requested until after the
expiration of such a short period. Mandated requirements for retaining
information pertaining to communication would be of direct benefit to law
enforcement in investigations.
Western Australia Police also raised this issue:
One challenge currently being experienced by the WA Police is
obtaining quicker and easier access to companies' information (Facebook,
MySpace, Microsoft etc) either for a law enforcement purpose or when bullying
needs to be reported. Advice is often provided to users on reporting abuse /
bullying to the companies, however, it often takes many weeks before the
companies resolve the issues reported.
Further, some service providers were critical of the adequacy of
response by law enforcement agencies. Of note was the lack of knowledge in
relation to seeking legal evidence. For example, the Australian
Council for Computers in Education commented that:
To date, police responses to risks associated with SNS use in
all Jurisdictions studied for this report have tended to be fragmented and
Young people are not necessarily aware of the legal options:
that despite the comfort with which they use these
technologies, teens are unaware of their legal options in the context of these
technology rich areas, particularly those relating to privacy and their
personal information. Additionally, many teens are still unaware of the
practical and very realistic consequences of their actions.
The Association of Independent Schools of South Australia called for:
A promotional campaign put in place to inform school
communities what constitutes an e-crime. Many students may not be aware that
what they are doing is not only bullying, but it may also be against the law.
The Office of Youth made the point that people do not know what is legal
and what is not. Professor Phillip Slee
there does need to be exactly that kind of education for the
community around what constitutes criminal activity. When we worked with the
police we found that young people in particular did not know that uploading
images or taking images et cetera could constitute stalking or blackmail. So
again we come back to that notion of strongly advocating for an educational
approach, albeit keeping in mind that there is a legal component to it.
The Australian Council for Computers in Education highlighted the need
to consider the legal risks arising from using social networking sites as there
is a concern about the level of understanding of the nature of the risks in
areas of ‘the law that give rise to possible legal liability for young people
using [social networking sites]:
- Privacy disclosure
and breach of confidence
- Intellectual property
rights especially copyright infringement
- Defamation; and
- Criminal laws
including harassment and offensive material.
The Australian Psychological Society added that:
while legal implications should not be the sole driver of
cyber-safety measures targeted to children and young people, important
components of cyber-safety include informing them about their ‘digital
footprint’, including the likelihood that their activities are often very
traceable, and facilitating them to take responsibility for the consequences of
their actions, including that they may be held liable for inappropriate
Increasingly the New South Wales Director of Public Prosecutions is
prosecuting offences involving young people using the internet.
Offences may fall both with state and commonwealth jurisdictions because of the
use of telecommunications. Family Voice Australia
made the point that ‘prosecutions should only happen in the very worst cases’.
The National Children’s and Youth Law Centre stated that in most cases
bullying had occurred at schools as well as online and young people seek advice
on the possibility of legal recourse. The Centre also
Some examples of these questions are whether schools can
regulate young people’s online access, whether you can be banned from using a
website, the consequence of acrimonious online conversations, using unsecured
wireless networks, what action can be taken about racist comments online,
illegal downloads of music and movies, whether there is any law about
protecting children online and use of file sharing programs.
It believes that there should be support for schools including:
providing accurate information about rights, community
education and support services, effective complaints procedures and accessible
dispute resolution mechanisms. Legal remedies should be a measure of last
resort in most cases (although the desirability of legal mechanisms when it
comes to prosecuting child pornography offences is not in question). Children
also need to be active participants in this process and must be consulted both
in the design of education programs and their evaluation. This lends young
people a sense of ownership, and enhances the effectiveness and relevance of
emerging policies and programs amongst their fellow peers.
National accredited training
Evidence to the Inquiry indicates that the police and the justice system
in Australia are not sufficiently supporting or equipped to support some victims
and parents/carers. For many people, complaining to local police about abuses
in the online environment has not always been satisfactory. Only the worst
cases of bullying and cyber-bullying seem to be investigated, let alone
prosecuted. In practice, intervention orders against individuals are difficult
to enforce. The increasing impact of the online environment means that without
additional resources and education for police on the front line, this situation
may worsen. The systematic education of frontline police in the range of
cyber-safety issues will assist in increasing sensitivity of handling
complaints about this difficult area.
To be effective, this education needs to begin during recruit training
and to be reinforced through a range of courses throughout an officer’s career.
In keeping with the cooperative national approach required to deal with abuses
in the online environment, the AFP is the appropriate body to devise suitable
courses, in conjunction with the police forces of the other Australian
One suggestion was the establishment of a National Accredited Bullying
and Cyberbullying Training Program for the AFP and State Police:
Provide the necessary resources to support Federal and State
Police to minimise bullying and cyberbullying practices by providing Police
Members with a National Accredited Bullying & Cyberbullying Training
That the Attorney-General work with State and Territory
counterparts to invite all Australian Police Forces to develop a range of online
courses to provide training in cyber-safety issues for all ranks, from basic
training for recruits and in-service and refresher courses for more senior
The training should also be extended to Magistrates’ Courts, to:
Provide the necessary resources
to support Magistrate Court and DPP Staff to minimise bullying and
cyberbullying practices by providing Judges and Prosecutors with a National
Accredited Bullying & Cyberbullying Training Program.
The Committee was told of case where, to protect her child, a mother had
to take out restraining orders against a number of girls:
At the initial hearing the
magistrate who granted the interim orders stated something to the effect that
he could not include Facebook and MySpace as he was not personally familiar
with and did not understand those sites.
That the Attorney-General work with State and Territory
counterparts to initiate a mandatory training program for judicial officers and
all relevant court staff addressing cyber-safety issues, to ensure they are aware
of these issues, and of emerging technologies.
Professor Marilyn Campbell commented that while legislation can set a
benchmark for societal norms, it does not follow that young people must be
imprisoned if they offend and that:
the police only uphold the law, and there is no law against
being nasty and there is no law against bullying.
Professor Elizabeth Handsley referred to the similarity with domestic
violence law and the possibility of applying existing legislation:
there is plenty of law that could be applied to that
behaviour; it is just a matter of getting the enforcement mechanisms in place
that pick it up and properly apply it to that behaviour. But there is always
room for context-specific laws that make it very clear to law enforcers, ‘No,
you really need to take this into account and to take it seriously.’
Bullying is usually seen as a behavioural
matter and not a criminal offence and police are rarely involved.
However, the Community Law Centre suggests that ‘the offence of cyber-assault
be specifically incorporated into legislation and strengthened to adequately
protect consumers including children throughout Australia.’ It also point out
New South Wales is the only jurisdiction that explicitly
by school children into its Crimes Act8. Section 60E of the Crimes Act 1900
(NSW) makes it an offence where a person ‘assaults, stalks, harasses or intimidates’
any school staff or student while attending school. This wording, however,
leaves bullying outside of school premises without the ambit of this section.
It should be noted that:
cyberbullying can constitute criminal conduct, especially
when the behaviour is seriously threatening, harassing or intimidating. While
there may be a natural tendency to seek to avoid the criminalisation of young
people in this context, criminal sanctions are appropriate to more cases than
are generally appreciated, while very few young people seem to appreciate their
potential for attracting criminal liability. Media reports and other accounts,
however, have recently highlighted that schools themselves, if not teachers and
parents also, are increasingly inclined to resort to the criminal law; often
out of fear, frustration or in the interests of community safety. It is
imperative to consider the issue of either criminalising or providing formative
discipline for these behaviours.
Mr Stewart Healley made the point that:
Nevertheless, cyber bullying may easily be conceived in terms
of well know criminal offences such as assault, threats, extortion, stalking,
harassment, and indecent conduct. In addition, an increasing array of new
offences, such as torture, voyeurism, cyber stalking, and telecommunications
offences may be relevant. The New South Wales provisions and some of these
other offences as they apply to cyber bullying are worth closer examination.
Under common law, the responsibility of schools for cyber-bullying is
not well understood.
The Australian University Cyberbullying Research Alliance submitted that:
In the case of the
perpetrator, depending on circumstances, such an action might be framed as
action for the tort of ‘assault’, an intentional infliction of psychiatric
harm, defamation or the embryonic tort protecting privacy. Unlike criminal law,
age is no barrier to a civil liability to pay compensation for cyberbullying.
The Alliance also emphasised practical considerations:
The decision whether to bring an action against a child
perpetrator is therefore more likely to involve more practical considerations
such as whether he or she has sufficient financial resources to make him or her
worth suing. Whatever the position in other countries, under Australian law
parents are generally not legally liable for the acts of their children and
thus it is usually schools which are involved in civil litigation.
The following comments were made by respondents to various questions
throughout the Committee’s Are you safe? survey:
Add a law that says every website needs to act on
cyberbullying, whatever site they run (Male aged 15).
Stronger laws regarding bullying practice online (Female
Providing the police would be good but it will not help to
solve the problem. It could make the bullies more aggressive? (Female aged
With polocing and enforcing using teachers and parents to
enforce thse are not a good idea, most of the time I have noticed that my
generation does not care or respect most teachers and parent, they need to
know there will be servere consquences but also you need to find a way to
make then understand respect amoung others, at a young age and contunie to
drill it in, also mabye teaching the discipline may help (Female aged 16).
The AFP made the point that although there are numerous crime
prevention, education and awareness programs actively endeavouring to raise
awareness of parents, carers, teachers and children, these are mostly targeted
at mainstream audiences.
The AFP added that very few of these programs have been evaluated for their
Role of industry
The Australian Institute of Criminology refer to the greater potential
of an effective partnership between the public
and private sectors rather than attempting to use law enforcement on its own in
dealing with online risks.
The AFP advised that,
Legal mechanisms for
compelling [content service providers (CSP’s)] to remove content are limited,
and are unlikely to succeed due to the costly and lengthy process involved.
Even where a legal remedy was successful, it would likely be detrimental to the
AFP's future relationships with that CSP where assistance of an even more
critical nature is required.
The Australian Institute of Criminology added that:
The private sector must also
play a role in crime prevention as most online environments are commercially
owned and operated (e.g. social networking sites). Although there is an
imperative for private sector organisations to respond to corporate and
shareholder interests, these interests should not neglect the need to provide a
safe and secure environment for users, particularly children and young people.
Business interests, therefore, need to devote resources both to maximising
profit as well as minimising opportunities for systems to be used for illegal
Cyber-values stressed the need to deal with the underlying values
instead of adopting defensive stances and excessive regulations:
For most ethical problems, participants resorted to legal
sanctions and technical precautions for solutions.
All Australian jurisdictions have laws that can be used against crimes
committed in the online environment. Inevitably, the enactment of laws follows
criminal acts, and it is not clear that current statutes include a range of
effective cyber-safety protection. A review of what has been enacted in the
various jurisdictions would be a means of assessing what is effective, and
where additional legislation is required. The AFP reflected,
The Commonwealth legal and regulatory framework is under
constant review. Law reform in this area presents a number of challenges due to
the rapidly changing digital environment and the transnational and highly
adaptable nature of online criminality.
The Communications Law Centre commented that opportunities for criminal
acts in the online environment will continue to increase, as it becomes further
intertwined with the everyday lives of both adults and children/young people.
That review could also address the provision of more adequate recourse
for victims of cyber-safety crimes, particularly but not only cyber-bullying
and identity theft. It could also be extended to include effective legal
remedies and adequate compensation for the harm done to victims, especially
That the Attorney-General in conjunction with the National
Working Group on Cybercrime undertake a review of legislation in Australian
jurisdictions relating to cyber-safety crimes.
The Alannah and Madeline Foundation added that there should also be a
nationally coordinated cyber-policy plan involving all jurisdictions to
People who have been the victims of cyber abuse [have] a
dedicated body to which they can address concerns and complaints, and which has
the expertise to remove offending material and prosecute offenders rapidly.
The process of seeking information from international police forces and
other agencies through mutual assistance treaties was designed at the beginning
of the digital age, in 1987. It now rarely produces timely results for
Australian investigators of online crime. The Australian Institute of
the mutual legal assistance treaties that are in existence
present problems not only for child exploitation matters but for all
transnational police investigations. There probably is a need to improve the
speed of undertaking those inquiries, but conducting prosecutions and gathering
evidence across jurisdictions is bound to be difficult.
A review of the current operations of these treaties is under way:
In January , the government released a second exposure
draft of some proposed legislative reforms to Australia’s mutual assistance
laws which will be designed to promote more responsive and flexible measures to
a degree; that is obviously at the Australian end. Mutual assistance is always a
two-way street where there is another country involved as well. Another step
that we are taking is that the Attorney-General, in the quintet of
attorneys-general, with the US, Canada, New Zealand and the United
Kingdom—there is a meeting in the middle of the year and, at that meeting, the
attorneys propose to discuss cyber threats and how we might more effectively
cooperate in dealing with them as well.
The Australian Government has announced its intention to accede to the
Council of Europe Convention on Cybercrime 2001.
In relation to an appropriate legal framework, the Alannah and Madeline
- The need to legally define the rights and responsibilities of
schools in responding to bullying and cyberbullying situations, and
Legal remedies in themselves are not a solution to bullying, but
are a necessary part of the solution; and
The need to clarify the role of the criminal and civil law in
relation to cyberbullying and bullying.
The Foundation is of the view that a legal framework should be
established to manage cyber-abuse that crosses state and political
boundaries, and that:
Federal, State, and Territory government convene a working
group involving other stakeholders to consider an appropriate legislative
response to cyberbullying and bullying in general in our schools.
Because of the lack of boundaries for the abuse that occur
online and with mobile phones, all Australians need to be confident that
consistent rules and consequences will apply in all states and territories.
The Department of Broadband, Communications and the Digital Economy
questioned this approach:
The real question that I think confronts us is whether a
legislative framework would be any faster than a voluntary framework. We have
found no evidence that the relevant websites, these large multinational
websites, are reluctant to take this sort of material down. Their user policies
are actually very broad in terms of the kinds of materials they can take down
compared to, for example, what is covered in the Broadcasting Services Act.
They cover a much wider range of material that they describe as inappropriate
than is described in legislation. So the breadth of the policies is broader,
and we have not seen any evidence of a reluctance on their part to take it
down. The key is how you work through a large multinational organisation to
move quickly, and it is not clear that legislation would make them move any
more quickly than a voluntary arrangement.
Further, ACMA commented that:
ACMA and the Attorney-General’s portfolio, especially through
the Federal Police, have moved to work very closely together. So if a complaint
comes in we do triage so it goes to the right place in government. Secondly, we
are also focusing on the same issue that other countries have focused on, which
is about having points of influence in American companies and educating them to
understand that we have local sensitivities which may not at first blush be
immediately apparent to them, because community standards do vary from country
to country. I think Australia has a particularly good framework for setting out
what is important to Australians. So they are the challenges in dealing with
the types of problems we have been talking about that we have been working hard