CHAPTER 1
Introduction and Background
Referral of the inquiry
1.1
On 12 December 2013, Senator Nick Xenophon introduced the Criminal Code
Amendment (Misrepresentation of Age to a Minor) Bill 2013 (the Bill) into
the Senate.[1]
On the same day, the Bill was referred to the Senate Legal and Constitutional
Affairs Legislation Committee (the committee), for inquiry and report by
19 February 2014.[2]
The Senate subsequently extended the committee's reporting date to
27 March 2014,[3]
and then 29 May 2014.[4]
On 27 May 2014, the committee tabled an interim report for the inquiry,
extending the final reporting date to 4 December 2014.[5]
On 3 December 2014, the Senate granted a further extension of time for reporting
until 12 February 2015.[6]
Additional extensions of time to report were subsequently granted, until 24
June 2015 and then 13 August 2015.[7]
Purpose and key provisions of the Bill
1.2
The Bill seeks to amend the Criminal Code Act 1995 (Criminal
Code) to make it an offence for a person who is over 18 years of age to
misrepresent their age to a person they reasonably believe to be under 16 years
of age for the purposes of encouraging a physical meeting, or with the intent
of committing an offence.[8]
1.3
In his second reading speech introducing the Bill, Senator Xenophon
explained that the this legislation has been motivated by an individual case in
which an online predator lied about his age to a teenager in order to establish
a relationship, before ultimately assaulting and murdering her.[9]
The senator stated:
[The items in the Bill] close an important loophole in the
law. There is no reason for an adult to knowingly misrepresent their age to
someone they believe is under eighteen, particularly if they believe doing so
will make it easier to meet or commit another offence.
...New forms of communication mean we need new laws to protect
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.[10]
Key provisions of the Bill
1.4
Clause 3 of the Bill states that the object of the Act is 'to protect
minors from predatory online behaviour by adults'.
1.5
The proposed amendments to the Criminal Code are contained in Schedule 1
of the Bill. The schedule would insert proposed new Subdivision H (Offences
relating to use of carriage service with intention of misrepresenting age) at
the end of Division 474 (Telecommunications offences) of the Schedule to
the Criminal Code.
1.6
Proposed new section 474.40 of Schedule 1 would create two offences for
a person over 18 years of age (the 'sender') to intentionally misrepresent
their age using a carriage service to a person who is, or who the sender
believes to be, under 16 years of age (the 'recipient'):
-
for the purpose of encouraging the recipient to physically meet
with the sender (or any other person) (subsection 474.40(1)); or
-
with the intention of committing an offence, other than an
offence under proposed new section 474.40 (subsection 474.40(2)).
1.7
Both offences would be punishable by a term of imprisonment: five years
where the intent was to encourage a physical meeting; and eight years where the
intent was to commit an offence.
Previous iterations of the Bill and
committee inquiries
1.8
The current version of the Bill, introduced in December 2013, is the
third iteration of this Bill introduced by Senator Xenophon.
1.9
The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill
2010 was introduced in February 2010. It was the subject of a report by this
committee, tabled in June 2010, which recommended that the Senate should not
pass the Bill.[11]
The Bill then lapsed at the end of the 42nd Parliament in
September 2010.
1.10
The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill
2013 was then introduced in February 2013, and was the subject of an inquiry by
this committee, with a report tabled in June 2013. The inquiry recommended that
the Senate not pass the Bill.[12]
This Bill then lapsed at the end of the 43rd Parliament in November
2013.
1.11
The current Bill is substantially similar to the first version of the
2013 Bill; the main difference is that the current Bill deals with intentional
misrepresentation of age to persons under 16 years of age, rather than 18 years
of age in the first version of the Bill. This change has been made as 16 years
is consistent with the age of sexual consent in the majority of Australian
jurisdictions.[13]
Conduct of the inquiry
1.12
Details of the inquiry, including links to the Bill and associated
documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee wrote to various organisations and individuals, inviting
submissions by 27 February 2014. Invitees were asked to specifically address
the differences between the current Bill and the previous version of the Bill
in their submissions, including any relevant issues that arise as a result of
these differences.
1.13
The committee received 9 submissions, which are listed at Appendix 1.
All submissions were published on the committee's website.
1.14
The committee held a public hearing for the inquiry in Canberra on
3 March 2014. A list of witnesses who appeared is at Appendix 2.
1.15
The committee thanks those individuals and organisations who made submissions
and gave evidence at the public hearing.
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