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Criminal
Code Amendment (Misrepresentation of Age to a Minor) Bill 2013
Introduced into the
Senate on 26 February 2013
By: Senator Xenophon
Summary of committee
view
1.1
The committee
considers that the bill appears to limit the right to freedom of expression,
the right to privacy, and possibly freedom of association, but that these
limitations are aimed at the legitimate objective of seeking to protect
children. However, the committee seeks clarification as to why it is necessary
(in addition to the offence of misrepresenting one's age with the intent of
committing an offence) to have a separate offence of misrepresenting one's age
to encourage a child to meet the defendant with no intention to commit an
offence
1.2
The committee seeks further clarification as to
whether imposing an evidential burden on the defendant under proposed section
474.41(2) is compatible with the right to be presumed innocent.
Overview
1.3
This bill seeks
to amend the Criminal Code Act 1995 to make it a criminal offence for a
person over 18 years of age to intentionally misrepresent his or her age in
online communications with a person they reasonably believe to be under 18
years of age:
(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.
Compatibility
with human rights
1.4
The bill is
accompanied by a self-contained statement of compatibility that addresses a
number of the human rights engaged by the bill. The statement refers to the
criminal procedure rights guaranteed by article 14 of the International
Covenant on Civil and Political Rights (ICCPR) (in particular the right to be
presumed innocent), the right to privacy guaranteed by article 17 of the ICCPR,
and the rights of the child guaranteed by article 23 of the ICCPR and various
provisions of the Convention on the Rights of the Child.
1.5
In addition to
those rights, the bill also engages the rights to freedom of expression
(article 19, ICCPR) and possibly also freedom of association (article 21,
ICCPR).
1.6
The statement of
compatibility states:
The Bill
creates a specific offence aimed at protecting minors from adults who
deliberately misrepresent their age for the purpose of arranging a physical meeting
or committing another offence. The Bill aims to address situations where adults
pretend to be close to the age of a minor with whom they are communicating, so
that the minor is more open to communications with that adult. This is a
technique known to be used by adults seeking to physically harm minors, where
minors have been deceived and become victims of violence and abuse.[1]
1.7
Insofar as it
criminalises specific actions by which a person seeks to make contact with
another person, the bill involves a limitation on the exercise of a person’s
freedom of expression guaranteed by article 19 of the ICCPR, the right not to
have one’s privacy unlawfully or arbitrarily interfered with guaranteed by
article 17 of the ICCPR, and possibly also the freedom of association
guaranteed by article 22 of the ICCPR.
1.8
Under each of
these guarantees, limitations are permissible if they are adopted in pursuit of
a legitimate objective, are rationally related to achieving that objective and
are a reasonable and proportionate means of pursuing that goal.
1.9
The bill
provides that it will be an offence if a person over 18 misrepresents his or
her age in online communications either (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. It is not a requirement that the misrepresentation be made to
encourage the person to meet with the adult and that this be done with
the intention of committing an offence. It would thus be an offence for an
18-year old to represent that he was 17 in order to encourage a 17-year old
girl to meet him; or indeed if he misrepresented himself as 21 for the same purpose,
in either case without any intention to commit an offence.
1.10
While
the two offences would capture the types of serious cases the bill targets, the
current formulation may be over-inclusive.
1.11
The
committee considers that the bill appears to limit the right to freedom of
expression, the right to privacy, and possibly freedom of association, but the
committee is of the view that these limitations are permissible as they are aimed
at the legitimate objective of seeking to protect children.
1.12
However,
the committee intends to write to Senator Xenophon to seek clarification as to why
it is necessary (in addition to the offence of misrepresenting one's age with
the intent of committing an offence) to have a separate offence of
misrepresenting one's age to encourage a child to physically meet the
defendant, where there is no intention to commit an offence.
Right
to privacy and access to records of online communications
1.13
The
statement of compatibility refers to the possibility that a person’s privacy
may be encroached on by law enforcement authorities gaining access to the
person’s online communication records for the purpose of investigating or
prosecuting an alleged offence. The statement
notes that this would engage article 17 of the ICCPR but that such information
‘is subject to existing protections and can only be accessed when it is
suspected an offence has been committed. This is in line with established legal
protections, and as such is considered a permissible limitation.’
1.14
The statement of
compatibility does not refer to specific powers to intercept or gain access to
online communications which might be applicable. Without this information the
committee notes that it is not possible to assess whether any limitations on
the right to privacy provided for in other legislation can be concluded to be a
reasonable and proportionate restriction on the enjoyment of that right.
Right
to be presumed innocent
1.15
Proposed new
section 474.14(2) and section 474.42(1) impose an evidential burden on the
defendant in a prosecution for an offence under the proposed new section
474.40. This engages the right to be presumed innocent under article 14 of the
ICCPR. The statement of compatibility does not explicitly justify this
provision. While proposed new section 474.42(1) relates to the defendant's own
belief (which can be said to be peculiarly within the defendant's knowledge),
section 474.41(2), which requires evidence to be adduced to contradict evidence
that the online recipient was represented to be under 18 years of age, will not
necessarily be within the defendant's own knowledge. As such, it may be
inappropriate to impose an evidential burden on the defendant in this manner.
1.16
The
committee intends to write to Senator Xenophon to seek further clarification as
to how imposing an evidential burden on the defendant under proposed section
474.41(2) is compatible with the right to be presumed innocent under article 14
of the ICCPR.
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