Additional comments by Senator Nick Xenophon

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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