BILLS DIGEST NO. 100, 2016–17              25 May 2017

Criminal Code Amendment (Protecting Minors Online) Bill 2017

Monica Biddington
Law and Bills Digest Section 

Date introduced:  30 March 2017

House:  House of Representatives

Portfolio:  Attorney-General

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2017.

Purpose of the Bill

The purpose of the Bill is to introduce an offence to criminalise acts done using a carriage service[1] to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16. This expressly includes a person misrepresenting their age online as part of a plan to cause harm to another person under 16 years of age.

Structure of the Bill

The Bill is presented in two Schedules.

Schedule 1 amends the Criminal Code Act 1995 (Cth) (Criminal Code) to insert a new offence for the preparation or planning to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under the age of 16, using a carriage service.

Schedule 2 contains consequential amendments. It amends the Crimes Act 1914 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) to ensure existing law enforcement powers available for Commonwealth child sex-related offences are available for the new offence.

Background

It is recognised that sex offenders use the internet to identify and contact minors for sexual exploitation, mostly through monitoring online profiles and web messaging services.[2] This is consistent with the views of academics over the last decade, who have noted an increase in online harassment, particularly cyberstalking, and impersonation to lure young people into relationships.[3] This might occur via online community groups, social media pages, or direct email contact.

Over recent years, an increasing number of adolescents and children have access to smartphone and tablets, allowing:

… their susceptibility to become a cyber victim to increase, as parental control may not be present … [Further], a lack of internet safety knowledge by authority figures leaves many children susceptible to predators’ manipulation skills … [and so] implementing parental control, mandatory policies and guidelines in school systems and taking a lead role in the child’s life is imperative [in determining] whether a child is preyed upon by predators.[4]

In Australia, the focus has been to promote internet safety and responsibility and this Bill is the first time in twelve years that a government has pursued a legislative enforcement option to address predators who are exploiting the ‘anonymity of the internet to forge relationships with children as a first step in luring them for sexual abuse and other forms of harm’.[5]

This Bill follows three attempts by Senator Nick Xenophon to criminalise an adult misrepresenting their age to a minor for specified purposes.[6] Senator Xenophon has long advocated for a law to better protect young Australians from grooming by online predators, known as Carly’s Law.

Carly’s Law is in response to a case of a 15-year-old Australian girl, Carly Ryan, who was murdered in 2007 by Garry Francis Newman, an online predator posing as a teenage boy. Newman, a 47-year-old man, pretended to be an 18-year-old man named Brandon. Newman convinced Carly to meet him but was angry at Carly’s subsequent rejection of his advances, assaulting and drowning her at Port Elliott, South Australia. In 2010, Newman was sentenced to life imprisonment with a 29-year non-parole period.

In his second reading speech for his Private Senator’s Bill in 2013[7], Senator Xenophon stated that following the death of Carly Ryan:

It took police eleven days to track Newman down. When they found him, he was logged on to his computer as Brandon Kane, chatting to a fourteen year old girl in Western Australia. Police also found a stash of child pornography on his computer, and discovered he had already pursued many other young girls overseas.[8]

Senator Xenophon acknowledged the difficulties (which are further discussed by the Senate Scrutiny of Bills Committee in its comments on the current Bill) in creating the law to ensure there are no unintended consequences from its enforcement:

This [2013] Bill creates offences specifically aimed at the circumstances—an adult lying to a minor about their age to facilitate a meeting or to make themselves seem 'more approachable'—that need to be addressed.

The internet is impossible to pin down, constantly evolving and growing. The pace of technological growth means children are almost always much more comfortable with online communication than their parents: what we still see as new and different is as essential to them as breathing.

New forms of communication mean we need new laws to protect our children. In cyberspace, we can't stand by their side as they explore the world. We can't always set rules and curfews, because our kids can be sitting safe in their rooms even while they're in danger.

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.[9]

Senator Xenophon’s Bill did not proceed to a vote on any of the three occasions it was presented. The Bills were considered by the Senate Legal and Constitutional Affairs Committee which concluded either that the Bill not be passed or that further consultation be conducted.[10] Ultimately all three Bills lapsed.

Committee consideration

Senate Standing Committee on Legal and Constitutional Affairs

The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 13 June 2017. Details of the inquiry are at the inquiry homepage. The Committee has received five submissions on the Bill and key issues raised in these submissions are indicated below.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills raised some issues relating to the reversal of the legal burden of proof in the proposed offence:

The offence provision is proposed to be inserted into Subdivision F of Division 474 of the Criminal Code Act 1995. As such, the presumption in existing section 475.1B of the Criminal Code will apply. This provision provides that if a physical element of a relevant offence consists of a person using a carriage service to engage in particular conduct and the prosecution proves beyond reasonable doubt that the person engaged in that conduct, it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct. A defendant bears a legal burden of proof in relation to this matter.

…

As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of people affected being the paramount consideration …

The statement of compatibility gives a justification for imposing a presumption which reverses the legal burden of proof:

The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive …

The committee notes that the presumption is intended to address problems regarding evidence that a carriage service was used, and notes that this appears to provide a justification as to why the evidential burden of proof needs to be reversed, but not necessarily why the legal burden of proof needs to be reversed. However, the committee also notes that the relevant requirement (that the conduct engaged in uses a carriage service) is a jurisdictional requirement that does not relate to the substance of the offence.[11]

Notwithstanding these concerns, the Committee concluded that no response from the Minister was required.

Policy position of non-government parties

Senator Xenophon of the NXT party strongly supports the Bill.[12] The position of other opposition and Senate cross-benchers is not yet known.

Position of major interest groups

The Law Council of Australia supports appropriate measures to ensure that the internet is not used to perpetuate crimes against children. However, the Law Council’s four concerns with the Bill are:

•       the necessity of the Bill in light of existing offences

•       the preparatory nature of the offence

•       the breadth of the ‘causing harm’ element in proposed paragraph 474.25C(a)(i) and

•       given the wide scope of the offence, the ability of law enforcement agencies to obtain a telecommunications warrant to investigate a person in relation to the proposed offence.[13]

The Law Council has also indicated that there may be:

… great difficulty in establishing intent to commit a future act (such as ‘harm’ to a person under 16) where the actions relied upon to prove such an intent are themselves benign, innocuous or equivocal. Given this difficulty, there is a risk that investigations or prosecutions may focus upon the character of the accused rather than the character of the actions the accused has undertaken.[14]

Similarly to the comments made by the Senate Legal and Constitutional Committee when examining Senator Xenophon’s Bills, legal academic Dr Gregor Urbas makes the argument that existing offences may already adequately cover the conduct that the proposed offence is seeking to criminalise:

Existing 474.25A, 474.26, 474.27 and 474.27A already cover procuring and some preparatory conduct such as grooming, as well as sexual activity (including purely online acts), directed at person under 16. There is thus considerable overlap with sexual predation crimes in the Code, though again it may be that a broader range of preparatory conduct is captured by new 474.25C.[15]

In its submission to the Senate Legal and Constitutional Affairs Committee’s inquiry into the Bill, the Australian Lawyers Alliance submitted that the Bill is ‘not sufficiently targeted to prevent harm to children. It could criminalise activities which have no potential to cause harm and, in doing so, destroy the lives of people who pose no risk by labelling them as child abusers’.[16] The submission also expressed concern about the preparatory nature of the offence, arguing that the proposed offence imposes liability too early in the criminal process, at a point where an individual contemplating a crime might still change his or her mind. The submission concluded that the Bill should not be passed.[17]

Queensland Family and Child Commission and the Tasmanian Sexual Assault Support Service (SASS), have submitted that they are supportive of the Bill.[18]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact on Government revenue.[19]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[20]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[21]

Key issues and provisions

The previous Bills introduced by Senator Xenophon sought to create a criminal offence relating to online communications with children. Section 3 of the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 stated:

the object of this Act is to make it a criminal offence for a person over 18 years of age (the sender) to intentionally misrepresent their age in online communications with a person they reasonably believe to be under 18 years of age (the recipient):

(a)      for the purpose of encouraging the recipient to physically meet with the sender (or any other person); or

(b)     with the intention of committing an offence.[22]

The proposed maximum penalty for the offence was eight years’ imprisonment under proposed section 474.40.[23]

The current Bill, while similar in policy intention, differs from Senator Xenophon’s Bills in that there is only one offence and it does not have the intention of misrepresenting age as a fault element of the offence. The offence in this Bill uses the word ‘misrepresents’ only by way of a noted example in the provision where it is intended that the offence require an actual misrepresentation of age rather than having an intention to do so which would present evidentiary issues.[24] As part of the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into Senator Xenophon’s 2013 Bill, the Attorney-General’s Department noted that ‘the proposed offence would be very broad in application.’[25] The present Bill also seems to have a broad application which would rely on police and prosecutorial discretion as to whether criminal sanctions were pursued. For example, the proposed offence could apply to online conduct known as ‘trolling’ where a person might harass a person who is under 16 years of age and cause harm to that person (new section 474.25C(a)(i)) where such conduct could presently be captured under section 474.17 of the Criminal Code. The significant difference is that the offence in section 474.17 carries a maximum penalty of three years’ imprisonment and the proposed offence carries a maximum penalty of 10 years’ imprisonment.

Item 2 in Schedule 1 is the key amendment in the Bill. It would insert new section 474.25C into the Criminal Code to create an offence of using a carriage service to prepare or plan to do any of the following:

•       cause harm to a person under the age of 16 years

•       engage in sexual activity with a person under the age of 16 years

•       procure a person under the age of 16 years to engage in sexual activity.

The offence applies to adult offenders (that is, persons who are at least 18 years of age) and would be punishable by a maximum penalty of 10 years’ imprisonment.

An example of the type of conduct targeted by the offence is provided following the proposed new section, being a person who ‘misrepresents their age online as part of a plan to cause harm to another person under 16 years of age’. The Explanatory Memorandum states that this example in no way limits the type of conduct that can be a preparatory act, whether or not that preparatory act involves any kind of misrepresentation.[26]

Existing provisions in the Criminal Code prohibit using a carriage service to ‘procure’ (section 474.26)[27] or ‘groom’ (section 474.27)[28] a child under 16 years of age. These offences are themselves preparatory in nature. A child does not have to be harmed before the penalties (up to 15 years in prison for procurement and 12 years in prison for grooming) apply. As it is the use of the carriage service that constitutes the criminal conduct in procurement and grooming offences, the child does not have to receive the communication, or indeed be a child, as the sender only needs to have the belief that the recipient is under 16 years.

The Explanatory Memorandum for this Bill states that proposed new section 474.25C criminalises a broader range of conduct preparatory to causing harm to a child than the existing procurement and grooming offences set out in sections 474.26 and 474.27 of the Criminal Code.[29] That is, the offence targets preparatory conduct where the offender has not proceeded far enough for the conduct to be captured by existing offences:

The offence will capture preparatory conduct, irrespective of whether a recipient child is communicated with or identified. An example of conduct that does not involve communication with an identified child is the creation of a social media profile by a predatory adult with the intention of using that profile to establish an online relationship with a child as a preparatory step to harming or engaging in sexual activity with a child. Because the offence does not require a specific recipient to be identified or communicated with, technical provisions that set out liability and evidentiary requirements in section 474.28 of the Criminal Code are not applicable to this offence. Neither are defences of mistake of age set out in section 474.29 of the Criminal Code …

For example, a preparatory act may include a person using social media to lie about their age, profession or an event in an attempt to lure a child to a meeting for the purposes of causing a child harm or procuring or engaging in sexual activity with a child.

The focus on the conduct of the adult will ensure the offence applies where a law enforcement officer assumes the identity of a fictitious child to interact with predatory adults over the internet and social media. The predatory adult will be engaging in criminal conduct where he or she has an intention to cause harm to, procure or engage in sexual activity with the fictitious child.

Section 474.25C will cover a broad range of preparatory activities that make use of telecommunications or carriage services (such as social media and the internet), undertaken to plan or prepare to cause harm to, procure, or engage in sexual activity with a person under 16 years of age.[30]

Meaning of ‘cause harm’ (proposed subparagraph 474.25C(a)(i))

Proposed new subparagraph 474.25C(a)(i) would make it an offence to do any act in preparation for, or planning to cause harm to a person under 16 years of age. 'Harm' is defined in the Criminal Code as:

Physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.[31]

'Physical harm' is defined as including:

Unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

'Harm to a person's mental health' is defined as including:

Significant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger.

The Explanatory Memorandum explains that acts done in preparation of causing or planning to cause harm to a child includes circumstances where there is an intent to harm the child, but no evidence of an intent to engage in sexual activity:

The offence captures conduct preparatory to a broader range of harm than currently exists and recognises that not all preparatory conduct is linked with an intention to engage in sexual activity with the child. The offence is not meant to capture trivial physical contact or ordinary emotional reactions and allows for judgements to be made about what conduct is acceptable or incidental to social interaction or life in the community.[32]

This is problematic however because the Bill in its current form could lead to a high number of persons charged with the offence due to police discretion being exercised, and deciding that the conduct was considered outside the realm of trivial physical contact or ordinary emotional reactions. It is then left to the prosecution to consider the reasonable prospects of a successful prosecution.

Meaning of ‘engaging in sexual activity’ (proposed subparagraph 474.25C(a)(ii))

The Explanatory Memorandum explains that the reference to ‘engaging in sexual activity’ in subparagraph 474.25C(a)(ii) is not limited to sexual activity engaged in in ‘real life’ but also includes online sexual activity with a child. That is, ‘engaging in sexual activity’ may include a person engaging in sexual activity in the online presence of another person, including by means of communication that allows the first person to see or hear the other person. As such, ‘engaging in sexual activity’ does not necessarily require physical contact between the parties.[33]

An example of preparing or planning online sexual activity with a child would be an offender who creates an online gaming profile as part of a plan to masturbate in front of a web cam while a child watches through the online game.

Meaning of ‘procuring’ (proposed subparagraph 474.25C(a)(iii))

The reference to ‘procuring’ in subparagraph 474.25C(a)(iii) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. ‘Procure’ is defined in the Criminal Code[34] to cover a range of activity reflecting the fact that a sender may encourage a recipient to engage in ‘consensual’ sexual activity, but may also coerce a person into engaging in ‘non-consensual’ activity.

Jurisdiction

As a telecommunications offence, Category A geographical jurisdiction, as set out in section 15.1 of the Criminal Code, will apply to the proposed offence.[35] The application of Category A jurisdiction means that regardless of where conduct constituting an offence occurs, if the results of that conduct affect Australia the person responsible is generally able to be prosecuted in Australia.

Other provisions

Telecommunications Interception and Access Act (TIA) amendment

Item 3 of Schedule 2 of the Bill would amend the TIA Act to provide that the proposed offence in new section 474.25C of the Criminal Code is a ‘serious offence’ for the purposes of the TIA Act. The effect would be that law enforcement agencies could apply for a telecommunications service warrant where the information obtained under the warrant would be likely to assist in connection with the investigation by the agency of the proposed offence.

In the Law Council's view, the wide scope of the proposed offence and the relatively low threshold for issuing a warrant (‘likely to assist the investigation’) may result in unwarranted intrusions on privacy, particularly as the Law Council considers the proposed offence to be unnecessary in light of existing provisions in the Criminal Code.[36]

Concluding comments

There is a strong argument that the Bill is unnecessary in the existing legislative framework, however, the Bill may be viewed as a valuable deterrent against the predatory behaviour that includes misrepresenting a person’s age online to cause harm to, procure or engage in sexual activity with a child. The Bill represents the Government’s commitment to online safety for Australian children and giving ‘police and prosecutors a new weapon which they can use to intervene sooner before a child become a victim’.[37] There are however some significant concerns with the Bill in its current form.

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[1].              A ‘carriage service’ is a service for carrying communications by mean of guided and/or unguided electromagnetic energy, as defined in the Telecommunications Act 1997, section 7. In everyday terms, this definition includes the internet, text messages, email, telephone, faxes, radio and TV.

[2].              LA Maleskty Jr, ‘Predatory online behavior: modus operandi of convicted sex offender in identifying potential victims and contacting minors over the internet’, Journal of Child Sexual Abuse, 16(2), 2007, pp. 23–32.

[3].              L McFarlane and P Bocij, ‘An exploration of predatory behaviour in cyberspace: towards a typology of cyberstalkers’, First Monday, 8(9), 1 September 2003. See also, for example, ‘Online “Predators” and Their Victims’, American Psychologist, February-March 2008, p.116. More broadly, cyberbullying statistics which could include this type of conduct, showed in March 2017 that 40% of Australian youths under the age of 18 worry about receiving hostile or demeaning online content: NoBullying.com, ‘How to stop cyberbullying in Australia’, NoBullying.com website, 29 March 2017.

[4].              D Deep, ‘Role of the internet in the sexual exploitation of children’, MS thesis, Utica College, August 2016, ProQuest database.

[5].              Explanatory Memorandum, Criminal Code Amendment (Protecting Minors Online) Bill 2017, p. 2.

[6].              Criminal Code amendment (Misrepresentation of Age to a Minor) Bill 2010; Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 and Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 (an amended version of the earlier 2013 Bill).

[7].              Parliament of Australia, ‘Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 homepage’, Australian Parliament website.

[8].              N Xenophon, ‘Second reading speech: Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013’, Senate, Debates, 26 February 2013.

[9].              Ibid.

[10].              Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010, The Senate, Canberra, 30 June 2010; Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013, The Senate, Canberra, 27 June 2013; Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Misrepresentation of Age to A Minor) Bill 2013, The Senate, Canberra, August 2015.

[11].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, The Senate, Canberra, 10 May 2017, p. 19.

[12].              S Holderhead, ‘Victory for Carly’s Law’, The Advertiser, 3 March 2017, p. 7.

[13].              Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Criminal Code Amendment (Protecting Minors Online) Bill 2017, 3 May 2017, p. 5.

[14].              Ibid., p. 12.

[15].              G Urbas, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Criminal Code Amendment (Protecting Minors Online) Bill 2017, 4 May 2017.

[16].              Australian Lawyers Alliance, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Criminal Code Amendment (Protecting Minors Online) Bill 2017, 4 May 2017, p. 4.

[17].              Ibid., p. 7.

[18].              See the submissions on the Committee’s Inquiry page. Also note that SASS did raise a question about how the Bill aligns with certain provisions in the Tasmanian Criminal Code Act 1924 which allow for the consent of the person against whom a crime is alleged to have been committed to be a defence, if at the time when the crime was alleged to have been committed, the person was of or above the age of 15 years and the accused person was not more than five years older.

[19].              Explanatory Memorandum, op. cit., p. 3.

[20].              The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[21].              Parliamentary Joint Committee on Human Rights, Report, 4, 2017, The Senate, Canberra, 9 May 2017, p. 74.

[22].              Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013.

[23].              Ibid.

[24].              See further comments on Senator Xenophon’s Bill in the Attorney-General’s Department, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013, April 2013.

[25].              Ibid., p. 4.

[26].              Explanatory Memorandum, op. cit., p. 11.

[27].              Subsection 474.26(1) of the Criminal Code makes it an offence for a person to transmit a communication to another person with the intention of procuring the recipient to engage in sexual activity with the sender. For the offence to apply the recipient must be under 16 years (or the sender must believe this to be the case).

[28].              Subsection 474.27(1) of the Criminal Code makes it an offence for a person to transmit a communication to another person with the intention of making it easier to procure the recipient to engage in sexual activity with the sender. For the offence to apply the recipient must be under 16 years (or the sender must believe this to be the case).

[29].              Explanatory Memorandum, op. cit., p. 10.

[30].              Explanatory Memorandum, op. cit., pp. 10–11.

[31].              These definitions are found in the Dictionary in the Schedule of the Criminal Code.

[32].              Explanatory Memorandum, p. 11.

[33].              Explanatory Memorandum, p. 12.

[34].              The definition is found in the Dictionary in the Schedule of the Criminal Code.

[35].              See section 475.2 of the Criminal Code.

[36].              Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Criminal Code Amendment (Protecting Minors Online) Bill 2017, op. cit., p. 11.

[37].              M Keenan (Minister for Justice), Carly’s Law introduced to protect young Australians online, media release, 30 March 2017.