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Criminal Code Amendment
(Misrepresentation of Age to a Minor) Bill 2013
Sponsor: Senator
Xenophon
Introduced:
Senate, 12 December 2013
Summary of committee concerns
1.1
The committee notes that it has previously examined the measures
contained in this bill and, following this examination, sought clarification
from Senator Xenophon in relation to a number of concerns. The committee is yet
to receive a response and again seeks clarification on the matters raised.
Overview
1.2
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:
-
for the purpose of encouraging the recipient to physically meet with the
sender (or any other person); or
-
with the intention of committing an offence.
1.3
The bill re-introduces measures which were contained in an identical
bill introduced during the 43rd Parliament which lapsed due to the
proroguing of Parliament.[1]
Compatibility with human rights
Statement of compatibility
1.4
The bill is accompanied by a 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 the right to a fair trial,[2]
the right to privacy[3]
and the rights of the child.[4]
Committee view on
compatibility
1.5
The committee notes that our predecessor committee examined the measures
contained in this bill in the 43rd Parliament.[5]
The committee considered that the measures appeared to limit the right to
freedom of expression,[6]
the right to privacy,[7]
and possibly the right to freedom of association,[8]
but that these limitations were aimed at the legitimate objective of seeking to
protect children.
1.6
However, in order for limitations to be permissible, they must be
rationally related to achieving that objective and be a reasonable and
proportionate means of pursuing that goal. The committee wrote to Senator
Xenophon to seek further clarification as to why it was 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. The
committee also sought clarification as to how imposing an evidential burden on
the defendant under proposed section 474.41(2) of the bill was compatible with
the right to be presumed innocent.[9]
1.7
The committee is yet to receive a response from Senator Xenophon
addressing its concerns.
1.8
The committee intends to write to Senator Xenophon seeking
clarification on the matters raised by the committee following its previous
examination of the measures in the bill, including why it is necessary to have
a separate offence of misrepresenting one's age without an intention to commit
an offence and how the bill is compatible with the right to be presumed
innocent.
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