Additional comments by Senator Nick Xenophon
1.1
I note the Committee's view that 'existing offences in the Criminal Code
already criminalise online communications with children where there is evidence
of intention to cause harm to children'[1]
has remained unchanged since the previous inquiry into the Criminal Code
Amendment (Misrepresentation of Age to a Minor) Bill 2013.
1.2
However, it is my view that the Committee and some submitters to the
previous and current inquiries have failed to make the case that there is no
need for broader provisions to protect children in an online environment.
1.3
Carly Ryan was only 15 when she was brutally murdered by Gary Francis
Newman, an online predator. This is her story, in the words of her mother,
Sonya Ryan:
In 2006 Carly Ryan thought she had met her dream boyfriend
online. His name was Brandon Kane, a 20 year old musician from Melbourne.
Brandon was in fact fictitious. An internet construct, the cyberspace alter ego
of Gary Francis Newman, a 50 year old predator and paedophile. Carly fell in
love with the Brandon construct during months of online contact and phone
calls.
Gary Newman took on another identity when he attended Carly's
15th birthday: that of Brandon's adopted father "Shane".
In that guise he attempted to gain the trust of Carly’s mum, Sonya, and
continued to deceive Carly, buying her gifts and promising to bring Brandon to
Adelaide to meet her.
Gary Newman spent months masquerading as Brandon Kane to win
Carly's love. When he tried to seduce her in person while pretending to be
Brandon's father Shane, saying that Brandon wouldn't mind if his dad had sex
with her, she rejected him. Angry, Gary Newman returned to Melbourne vowing to
"fix Carly up". He used his alter ego to lure Carly to a final, fatal
meeting.
In February 2007, Gary Newman convinced Carly to meet him. He
took Carly to a secluded beach at Port Elliott, South Australia. There, he
bashed her, pushed her face into the sand, suffocating her. He then threw her
into the water to drown. She was only 15 years old.
A local lady found Carly's body the next morning, covered in
sand, her clothing in disarray.
Within 11 days detectives located Gary Newman in Victoria.
They found him at his computer, logged in as Brandon Kane, talking with a 14
year old girl in Western Australia. They arrested him, charging him with
Carly's murder.
In a Supreme Court trail which continued for over three
months, a jury found Gary Francis Newman guilty of murder. He was sentenced on
31 March 2010. South Australian Justice Trish Kelly ordered him to serve a
life behind bars with a 29 year non-parole period.[2]
1.4
The Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill
2013 ('the bill') amends the Criminal Code Act 1995 ('the Criminal
Code') to make it an offence for a person over 18 to intentionally misrepresent
their age in online communications to a person they reasonably believe to be
under 16 years of age for the purposes of encouraging a physical meeting, or
with the intention of committing an offence.
1.5
Following specific concerns raised in the previous inquiry, I have
amended this version of the bill to reduce the age of the victim from 18 to 16
(in line with Commonwealth criminal laws) and to remove the reference to
provisions which would have made offences committed under this bill absolute
liability offences. Further, an offence would only be committed if, in addition
to those elements, the adult is also seeking to meet the child.
1.6
It has been noted during previous inquiries that internet use among
persons under 16 years of age has reached unprecedented levels. In her
submission to the 2013 inquiry, Ms Susan McLean, a cyber-safety expert and
educator, summarised some research which revealed disturbing trends:
A 2005 survey of 742 teens (aged 13-18) and 726 tweens (aged
8-12) conducted by the Polly Klass Foundation (USA) reported... 54 per cent of
teens admitted communicating with someone they’ve never met using an Instant
Messaging program, 50 per cent via email and 45 per cent in a chat room.
Sixteen per cent of all respondents... discovered that someone that they were
communicating with online was an adult pretending to be much younger.[3]
1.7
Ms Sonya Ryan explained in her submission to the 2013 inquiry why
children are particularly vulnerable in an online environment:
Young teens often have a desire to be free of their parent’s
authority to gain acceptance as grown-ups. Teens are naïve and inexperienced,
especially in dealing with adults who have ulterior motive. Sexual predators
take advantage of this naivety. They manipulate kids in an effort to gain
trust, which they use and gradually turn seemingly innocent online
relationships into real-life sexual interactions. A predator usually approaches
a child initially through harmless chat room or instant message dialogue. Over
time – perhaps weeks or even months – the stranger, having obtained as much
personal information as possible, grooms the child, gaining his or her trust
through compliments, positive statements and other forms of flattery to build
an emotional bond.[4]
1.8
The bill aims to provide law enforcement agencies with the ability to
investigate and prosecute alleged offenders in the preparatory stages of their
grooming activities, and to prevent children being placed in a position of
danger:
As a nation we need to support our law enforcement units
that are dealing with this new form of stranger danger, to ensure that once
they have identified a predator, they have the support of Parliament to
apprehend these criminals... This proposed law is the gap between our law enforcement
agencies and the ability to make a difference before it’s too late. We have
comprehensive laws that protect us from those who seek to commit and act of
terror, apprehending the persons (involved) prior to the event. I believe we
also need to have laws that protect our children on the same basis, to prevent
an act of terror, terror that may or may not end in death, but may cause a
lifetime of trauma.[5]
1.9
The Committee has previously stated that the current laws are adequate
and that the changes proposed in this bill, which would allow law enforcement
to target predators before they demonstrate intent to cause harm, go too far.
However, during the committee's public hearing in relation to this bill in
March 2014, a former Victorian Police officer with 27 years' experience
identified that there are in fact deficiencies in the current laws:
Senator XENOPHON: ...the main distinction in what is
proposed in this bill is to remove the need to prove the intention of sexual
activity and make it an offence to communicate with a minor while lying about
your age and to attempt to meet them. In your experience as a police officer,
do you think there were circumstances when the police could not act because it
fell short of proving that element of sexual intent, even though an adult was –
Ms McLean: Yes, I do. Clearly there are deficiencies.
Not every law is going to cover every single circumstance, and clearly what you
have pointed out is a deficiency in law.[6]
1.10
Furthermore, in a submission to the previous inquiry, the Attorney-General's
Department stated:
It is possible that by requiring an intention to encourage a
physical meeting only, this offence may be easier to investigate and prosecute
than existing grooming and procuring offences which require evidence of sexual intent,
allowing law enforcement agencies to intervene during the preparatory stage of
an offence before proof of sexual or other illicit intention is apparent.[7]
Despite this, the Department declined to support the bill.
1.11
I believe there is a clear need for these provisions in our existing
law. In my view, an adult lying to a minor about their age, for the purposes of
encouraging that minor to meet, indicates an intent to deceive. It is a clear
precursor to more serious harm. As Sonya Ryan knows too well, this deception
can have devastating consequences.
1.12
Given the committee's failure to support this bill at this stage,
despite why I and many others consider a clear need for these provisions, I
respectfully challenge my colleagues as to what could achieve a similar outcome
in terms of reasonable community standards I believe overwhelmingly most
Australians would consider the law should sanction against an adult that lies
about their age to a minor with the ultimate intent of trying to meet that
minor. It is a matter of common sense that such conduct ought to be sanctioned
by the criminal law. Australia's criminal law is lagging far behind
technological advances, and innocent children should no longer pay the price
for our inaction.
1.13
Finally, I thank the committee's patience in considering this bill, in
particular the chair Senator the Hon Ian Macdonald. Notwithstanding the
committee's recommendation I will continue to argue the case for the need for
this bill with the Attorney-General and his office. I also wish to acknowledge
the incredible courage, tenacity and dignity of Carly Ryan's mother Sonya, who
has made it her life's mission to honour the memory of her child, and to
protect all Australian children from online predators.
Recommendation 1
1.14
That the bill be passed.
Senator Nick Xenophon
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