CHAPTER 2
Key issues
2.1
Submitters and witnesses supported increased protection for children communicating
online, including communications with persons above the age of 18 years who are
misrepresenting their age for unlawful reasons. However, the committee heard
that the Bill is problematic as it does not sufficiently target persons
committing unlawful behaviour. Some submitters also questioned the need for the
Bill on the basis of existing provisions within the Criminal Code.
Persons targeted by the Bill
2.2
Proposed section 474.40 creates three offences involving online misrepresentation
of age to a minor, and there was considerable comment on this provision's omission
of an element of intent.
2.3
Bravehearts, a not‑for‑profit organisation dealing
specifically with child sexual assault, told the committee that 'it is always
about the intention of the person who is making contact with the child'.[1]
In noting the omission, Civil Liberties Australia remarked on the breadth of
the provision which, it argued, then captures otherwise innocent
misrepresentations:
Under the current draft, you could use the legislation to
throw the Wiggles (or any adult actor dressing up on children's TV) into prison
for three (3) years. This Bill could close Playschool![2]
2.4
Several other submissions made similar comments. For example, South
Australia Police pointed out that the Bill does not contain any defence for 'humorous,
innocent or erroneous transmissions'.[3]
Bravehearts suggested that, 'there probably just needs to be some sort of out
in the legislation to cover [such situations]'.[4]
2.5
In its submission, Bravehearts argued specifically that the terminology
within the Bill needs to more adequately define the concerning behaviour:
...the proposed amendment [section 474.40] needs to more
specifically target individuals who misrepresent their age to a minor where the
intention is to groom a child in order to commit an offence or to commit an
offence against a child. Defining aspects of this might include:
- A person over 18 years of age is misrepresenting his true
identity and age, specifically targeting an individual child under the age of
18 years of age; the communication is occurring directly and specifically
between the individual adult and the individual child/young person rather than
the adult misrepresenting themselves on a general scale to a broad audience.
- On-line communication is occurring on a one-to-one basis over a
period of time; that is – the communication that is occurring between the adult
and the young person is ongoing.
- The person over 18 years of age is otherwise unknown to the
child or has not disclosed that they are known to the child; that is, the adult
does not know the child outside of the contact established on‑line or
where the identity of the adult is, or otherwise would be, known to a child,
but is deliberately withheld.[5]
2.6
In spite of the breadth of proposed section 474.40, witnesses agreed
that the Bill would provide an important tool for law enforcement agencies.[6]
Ms Susan McLean, an expert in cyber safety gave evidence that:
...this sort of law will be really important because a lot of
people who are on the borderline of criminal offending do it if they think they
can get away with it or if there is not much chance of them being caught, but
having robust legislation in place can in fact prevent some of those peripheral
types of people. And of course it is an extra piece of legislation for law
enforcement...[7]
2.7
The Australian Federal Police (AFP) concurred with the latter comment,
stating that:
...from the AFP's perspective, any legislation that is provided
to us that assists us in the work that we do is greatly appreciated.[8]
The need for the Bill
2.8
The second issue raised in some submissions was the necessity for the Bill.[9]
Among these submitters, the Law Society of South Australia referred particularly
to sections 474.26‑474.28 within the Criminal Code, stating that these provisions
arguably provide a 'reasonable measure of protection for minors in respect of
the activities of adults seeking sexual relationships with them'.[10]
2.9
Sections 474.26-474.27 of the Criminal Code currently make it an offence
for a sender to use a carriage service to transmit a communication to a
recipient with the intention of procuring, or making it easier to procure, the
recipient to engage in, or submit to, sexual activity with the sender.
2.10
'Sexual activity' is defined in section 474.28 of the Criminal Code as:
(a) sexual intercourse as defined in section 50AC of the Crimes Act 1914;
or
(b) an act of indecency as defined in section 50AB of that Act; or
(c) any other activity of a sexual or indecent nature that involves the
human body, or bodily actions or functions.
The activity referred to in
paragraph (c) need not involve physical contact between people.
2.11
At the public hearing, several questions were directed toward the
requirement for intent in sections 474.26 (procurement) and 474.27 (grooming).
Witnesses were asked whether the grooming provision covers situations where an
adult is misrepresenting his or her age to a minor for the purpose of gaining
the child's trust and where there is, as yet, no question of sexual or prurient
intent.
2.12
The representative from Bravehearts considered this a 'really critical
issue',[11]
indicating that the Criminal Code does not cover an intention to groom:
...that is where the legislation is failing, at least from our
point of view. Offenders are able to run rings around law enforcement somewhat.
The grooming process involves an initial contact with the child that is then
built upon. There is an ongoing communication between an adult purporting to be
a child and the child themselves. I think there has to be a point at which law
enforcement agencies can intervene right there.[12]
2.13
Ms McLean agreed that the offences created by the Bill would enable law
enforcement agencies to pre-empt unlawful behaviour[13]
and took issue with the requirement in the existing provisions – sections
474.26 and 474.27 – to show sexual intent:
...many people will engage with a young person perhaps to see
what happens or to see if they can or to see what comes out of it. It might not
start off as sexual, or vice versa.
...
When it comes to having to prove that it was for sexual procurement
and you have no evidence or you have not got to the point where they may be
exchanging images of child pornography or engaging in grooming behaviours that
are normalising this, but you clearly know the intention because you can tell
by the communication—it may be something like 'run away with me', 'play truant
from school' and things like that to try to get the child to do something that
is against his parent's wishes—this type of legislation will be a good addition
to what we already have.[14]
2.14
An AFP witness acknowledged that officers have encountered cases of
older persons pretending to be younger persons in communications with minors
and where there appears to be neither any innocent explanation nor any
suggestion of sexual intent. The witness told the committee that proving intent
is vital in the prosecution of an offence:
It will not be sufficient just to suggest to the court that
we have been able to show that there has been contact; we actually have to
prove the intention of the person that is actually grooming or involved with
the child at the time.[15]
2.15
The Bill will create offences of absolute liability.[16]
However, the AFP did not appear convinced that the Bill would overcome the present
difficulties of proving intent or that it would ultimately prove useful in the
prosecution of serious offences. The AFP representative did agree that the Bill
would give the agency scope for early investigation and intervention:
Any legislative tool that we have that is going to assist us
in these investigations is very useful, but the difficulty is in proving intention
and proving what the purpose might be for that engagement. That is where we are
probably going to have some difficulty for the prosecution. If it were simply
for an intervention or for a prevention, then the legislation would be
appropriate...the tools supporting the investigation of something far more serious
in nature might be a bit lacking.
...
If the offence was, strict and absolute, that the person was
lying about their age and we could prove that then obviously there would be
some scope for us to move in that realm. But if we are talking about grooming a
child for some kind of serious offence being committed against a child, lying
about their age is not going to move us along.[17]
2.16
The NSW Attorney‑General agreed with these comments. In his
submission, the NSW Attorney‑General stated that, 'in limited
circumstances, in order to give law enforcement the ability to intervene before
a criminal offence has been committed, it is appropriate for the preparatory
steps of an offence to be criminalised'.[18]
The submission cited examples of offences which were stated to be a justifiable
departure from the law of attempt. However, the NSW Attorney‑General went
on to describe the Bill as lacking the relevant nexus between preparatory steps
and an identifiable criminal intent:
...in each of [the cited] offences, the intent that the accused
had at the time of committing the relevant offence can be easily identified as
a preparatory step in the commission of a more serious, and identifiable,
offence or form of unlawful activity.
...
The offences proposed in the Bill however, lack this clear
connection between the preparatory step being undertaken with an identifiable
criminal intent.
...
It is therefore difficult to see how these offences could
assist law enforcement authorities with preventing the further commission of a
crime.[19]
2.17
The NSW Attorney‑General added, 'moreover, the preparatory step
that is to be criminalised, is not necessarily conduct that society regards as
deserving criminal sanction'.[20]
2.18
Although the language and structure of the Bill mirrors the existing procurement
and grooming offences, one submitter noted a significant difference: paragraph
(c) of the definition of 'sexual activity' within the Criminal Code is inconsistent
with paragraph 474.40(2)(c) of the Bill in that the latter captures physical
contact only.
2.19
The Law Society of South Australia submitted that the Criminal Code recognises
that an unlawful relationship can occur between parties that does not involve a
physical meeting or physical contact.[21]
This view was supported by Bravehearts who told the committee:
...quite often [legislation] is pretty much targeted at
physical contact with the child after a grooming process, whereas our
experience tells us that probably more often, or at least as often, offenders
are engaging young people over the net to provide them with photos or perform
acts in front of cameras and whatnot. That is not about meeting a child, but it
is still about sexually assaulting a child via exploitation...[22]
2.20
The Law Society of South Australia suggested that the word 'physically'
be removed from paragraph 474.40(2)(c)[23]
and was prepared to support the Bill (with amendments). On the other hand, the South
Australia Police supported the existing procurement and grooming provisions,
which were to be amended by the Crimes Legislation Amendment (Sexual Offences
Against Children) Bill 2010.[24]
The South Australia Police considered that those amendments would simplify and
expand the existing procurement and grooming offences.[25]
2.21
A representative from the Attorney‑General's Department (Department)
also commented:
...we already have offences in Commonwealth legislation both
for with an intention to procure someone under 16 for sexual activity as well
as for a broader grooming offence where the intention is just to make it easier
to procure. That covers situations that are broader than just misrepresentation
of age. It can cover any communication for any purpose as long as the ultimate
outcome is to make it easier to procure.[26]
Empirical data regarding online misrepresentation of age
2.22
Statistics provided to the committee indicate that the incidence of
Australian children communicating online is extremely high. In 2009, the
Australian Bureau of Statistics reported that, in the 12 months prior to April
that year:
...an estimated 2.2 million (79%) children accessed the Internet
either during school hours or outside of school hours. The proportion of males
(80%) accessing the Internet was not significantly different from females
(79%). The proportion of children accessing the Internet increased by age, with
60% of 5 to 8 year olds accessing the Internet compared with 96% of 12 to 14
year olds...A higher proportion of children used the Internet at home (92%) than
at school (86%).[27]
2.23
In the United States of America, the Polly Klaas Foundation has inquired
further into the Internet habits of teens (ages 13 to 18) and tweens (ages 8 to
12). Its 2005 survey included the following findings:
- online teens frequently communicate virtually with someone they
have never met: 54% have done so using instant messaging, 50% via email, and
45% in a chat room;
- nearly one third of online teens (30%) said they have talked
about meeting someone whom they have only met through the Internet;
- one in four (27%) said they have talked online about sex with
someone they never met in person, and nearly one in five (19%) reported knowing
a friend who has been harassed or asked about sex online by a stranger; and
- nearly one in eight (12%) found that someone online was an adult
pretending to be much younger.[28]
2.24
In relation to the Internet habits of Australian teens and tweens, Ms McLean
advised that there is no Australian data comparable to that compiled by the
Polly Klaas Foundation:
There is really good data coming out of Australia now in
relation to cyber bullying. There is not really good data coming out of
Australia in relation to online sexual solicitation and grooming of children...[W]e
have a smaller population, so we are not going to see the same numbers of kids.[29]
2.25
Ms McLean also alluded to a popular misconception that grooming occurs
in America, or elsewhere, but not in Australia:
Certainly whilst cyberbullying itself is the major online
safety consideration for young people here in Australia, by virtue of the fact
of the way kids use technology, there is still going to be a percentage of
young Australian children who are groomed. We know they are groomed by people
within Australia. We certainly know of cases where Australian kids have been
groomed by people in other parts of the world.[30]
Committee view
2.26
The committee strongly supports the protection of Australian children who
communicate online, whether that protection is required due to cyberbullying or
to sexual predators. The Bill therefore highlights and attempts to address an
important and potentially far‑ranging issue affecting families, and the
Australian community as a whole.
2.27
However, the committee heard from most contributors to the inquiry that
the Bill is problematic. Some contributors were critical of the Bill for its
failure to incorporate an element of intent, a problem complicated by the
omission of any allowance for 'innocent' online communications. Others argued
that, essentially, the Bill duplicates and does not improve on the existing procurement
and grooming provisions relevant to carriage service communications (sections
474.26 and 474.27 of the Criminal Code, respectively). In relation to the
latter argument, the fundamental point of contention was the existing intent
requirement.
2.28
Some submissions and witnesses considered the requirement to prove
sexual intent as not very helpful in cases where persons misrepresenting their
age to minors online are doing so in order to establish and develop the trust
of the minor. These contributors considered that the Bill covers pre-grooming
behaviour, providing law enforcement agencies with an opportunity for early
intervention and prevention.
2.29
In contrast, others told the committee that the requirement to prove
intent continues to exist for the more serious offences (such as procurement
and/or grooming, as opposed to misrepresentation of age). While the Bill could
assist with early intervention or prevention, it would have this limited effect
only.
2.30
The committee notes that few submissions were received for this inquiry,
none of which were lengthy. While the committee therefore commends the broad
objective of the Bill, insufficient information was received during the inquiry
to allow the committee to make a fully informed decision to recommend the passage
of the Bill (with or without amendments). In particular, the committee has
reservations as to how precisely the Bill would interact with or complement
existing provisions in the Criminal Code, and considers that more
information is required in this regard.
2.31
In accordance with its views expressed above, the committee endorses the
creation of the Joint Select Committee on Cyber Safety on 25 February 2010, the
terms of reference for which include: the nature, prevalence, implications of
and level of risk associated with cyber safety threats (such as abuse of
children online – cyber‑bullying, cyber‑stalking and sexual
grooming); exposure to illegal and inappropriate content; and the analysis of information
on achieving and continuing world's best practice safeguards.[31]
The committee anticipates that a detailed and focussed examination of these
issues will ultimately achieve similar objectives to the Bill, and awaits with
interest the outcomes of that inquiry.
Recommendation 1
2.32 The committee recommends that the Senate should not pass the Bill.
Senator Trish Crossin
Chair
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