Chapter 2
Key issues
2.1
A number of issues were raised about the Criminal Code Amendment
(Protecting Minors Online) Bill 2017 (the bill) during the inquiry. This
chapter will outline issues raised by submitters and witnesses and provide the
committee's views and recommendation on the bill.
Support for the intention of the bill
2.2
Most submitters noted their overall support for the intention of bill. The
Carly Ryan Foundation provided its 'full support to the amendments proposed'.[1]
The Sexual Assault Support Service noted that it 'strongly supports the
intention and content of the Bill'[2]
and the Queensland Family and Child Commission stated:
The QFCC supports the intent of the amendments to protect
children under the age of 16 from online predators by allowing intervention by
law enforcement agencies prior to harm taking place.
We also support the amendments which make it an offence for a
person to misrepresent their age online as part of a plan to cause harm to
another person under 16 years of age.[3]
2.3
While submitters expressed their support for the broad intent of the bill—to
protect children from online predators—concerns were raised that the bill may
not be effective. The Australian Lawyers Alliance (ALA) noted that the bill
relates to one of the most serious crimes under Australian law and emphasised
the importance of protecting children and adequately punishing people who seek
to harm children.[4]
However, the ALA considered that the bill 'is not sufficiently targeted to
prevent harm to children'.[5]
2.4
The Law Council of Australia (Law Council) similarly expressed its
support for the intent of the bill, however was concerned with a number of
aspects of the bill and ultimately arrived at the view that the bill should not
be passed in its current form.[6]
Previous bills
2.5
The committee has considered and reported on three previous bills with a
similar policy intent as the current bill:
-
Criminal Code Amendment (Misrepresentation of Age to a Minor)
Bill 2010, introduced in February 2010 and reported on 30 June 2010;
-
Criminal Code Amendment (Misrepresentation of Age to a Minor)
Bill 2013, introduced in February 2013 and reported on 27 June 2013; and
-
Criminal Code Amendment (Misrepresentation of Age to a Minor)
Bill 2013, introduced in December 2013 and reported on 13 August 2015.
2.6
All three bills were private senator's bills introduced by
Senator Nick Xenophon and proposed a number of offences relating to a
person over the age of 18 who intentionally misrepresents their age in online
communications to a person who is, or whom the sender reasonably believes to be
under 18 or 16 years of age.[7]
Other offences proposed in the bills introduced in February 2013 and
December 2013 related to using a carriage service with the intention of
misrepresenting the sender's age and for a number of purposes including, making
it easier to meet with the recipient, encouraging a physical meeting, or with
the intention of committing an offence with a minor.[8]
2.7
In previous inquiries the committee noted its support for the bills'
objectives but recommended that the Senate not pass the first two bills. In
arriving at that recommendation, the committee noted that the bill introduced
in February 2010 failed to incorporate an element of intent and that the bill
'duplicates and does not improve on the existing procurement and grooming
provisions relevant to carriage service communications'.[9]
2.8
The committee's reasons for recommending that the Senate not pass the
bill introduced in February 2013 was that the bill 'is not necessary and is too
broad'.[10]
In relation to the breadth of the proposed offence, the committee stated:
The committee agrees that, as a general principle, criminal
offences must be precisely defined, and should avoid capturing non-criminal
conduct unless there is a clear nexus between that conduct and the criminal
conduct which is the subject of the offence. The committee agrees that the
proposed offences, while potentially criminalising a broader range of conduct
than that already covered in the Criminal Code, capture conduct that goes
beyond reasonable and accepted limits of criminal responsibility.[11]
2.9
The committee noted the same concerns in relation to the bill introduced
in December 2013—that it may not be necessary in light of the existing offences
in the Criminal Code and that the bill may be too broad.[12]
The committee concluded that further consultation should be undertaken to
determine the best way of implementing the policy intent of the bill, and
recommended 'that further consultation is conducted on the Bill prior to its
consideration by the Senate'.[13]
2.10
The Law Council noted that it had made submissions to the previous bill inquiries,
and had opposed all three bills. The Law Council expressed the view that the
proposed offence in the current bill, 'only exacerbates its concerns' with the
previous three bills.[14]
These concerns will be discussed below.
2.11
The Attorney-General's Department (AGD) noted that the proposed offence
is narrower in its application than the previous three bills as it includes an
intention to cause harm as opposed to an intention of merely misrepresenting
the sender's age.[15]
It is noted that the bill introduced in February 2010 had a fault element of an
intention of misrepresenting age. The bill introduced in February 2013 similarly
had a fault element of an intention of misrepresenting age as well as the
intention of encouraging the recipient to meet with the offender.[16]
Duplication of existing offences
2.12
A number of submitters noted that the Criminal Code has existing
offences which criminalises using a carriage service to procure or groom
persons under 16 years of age. In particular, submitters outlined that it is an
offence under sections 474.26 and 474.27 of the Criminal Code to transmit a
communication to another person with the intention of procuring, or making it
easier to procure, the recipient to engage in sexual activity with the sender.[17]
2.13
The ALA noted that these existing offences already 'constitute a
significant expansion of the traditional scope of criminal law' where criminal
penalties usually apply only after harm to people or property has occurred.[18]
The ALA explained that a child does not need to have been harmed for these
offences to apply as the test is the use of a carriage service to transmit a
communication to a person whom the sender believes is under the age of 16.[19]
According to the ALA, the current provisions strike the right balance between
keeping children safe and ensuring that individuals who pose a genuine risk are
captured by legislation.[20]
It noted that '[i]t is unclear what the provision proposed in the Bill would
add to the existing offences under the Criminal Code in terms of protecting
children'.[21]
2.14
The AGD acknowledged that other provisions within the Criminal Code
currently capture online child sex offences, however, explained how the
proposed offence differs to current offences:
The proposed offence in the bill captures acts that do not
amount to direct communication with a specific child. This reflects the
evolving nature of the internet and social media use, where direct messaging or
communication between two people no longer represents the scope of online
predatory activity. Online communication involves individuals broadcasting
information to a large audience with no one particular recipient in mind. The
creation of an online profile, membership of an online group or posting to the
online world at large do not fall within the existing offences. The proposed
offence also captures acts that prepare or plan to cause harm to a child,
including harm that is not limited to sexual activity.[22]
2.15
In relation to offences that capture conduct relating to the use of a
carriage service to cause harm to a child, which is not limited to sexual
activity, both Dr Gregor Urbas and the Law Council noted that a number of
existing offences would capture such activity.[23]
This includes section 474.14 of the Criminal Code which relates to the use of a
telecommunications network with the intention to commit a serious offence, and
section 474.17 relating to the use of a telecommunications network to menace,
harass or engage in conduct that is offensive.[24]
The Law Council concluded 'there are a number of provisions which would catch
conduct involving the use of a telecommunications network where there was an
intention to engage in serious misconduct other than sexual activity'.[25]
2.16
The proposed offence would apply to online conduct such as 'trolling'
which could also be captured by section 474.17 of the Criminal Code.[26]
However, a significant difference between section 474.17 of the Criminal Code
and the proposed offence is that section 474.17 carries a maximum penalty of
three years imprisonment and the proposed offence carries a maximum penalty of
10 years imprisonment.[27]
2.17
Despite what appears to be a level of duplication to some of the
existing offences within the Criminal Code, Dr Urbas expressed a degree of
support for the proposed offence. Dr Urbas noted that the existing offences are
used 'reasonably frequently to prosecute online offenders seeking to exploit or
harm children',[28]
and that the introduction of the proposed offence may close existing gaps:
[The existing offences] are relatively recent and their
precise scope is not always clear in the absence of judicial consideration, so
that it may be that there are still gaps in the coverage of the Code in
relation to online abuse.[29]
Breadth of the offence
2.18
One of the substantive differences between the proposed offence and
existing offences is that the proposed offence captures preparatory conduct,
that is, 'any act in preparation for doing, or planning to do' any of the
listed acts in proposed section 474.25C. The Explanatory Memorandum explains:
New section 474.25C criminalises a broader range of conduct
preparatory to causing harm to a child than the existing procurement and
grooming offences...In particular, the offence targets preparatory conduct where
the offender has not proceeded far enough for the conduct to be captured by
existing offences such as the existing grooming and procuring offences.[30]
2.19
The AGD explained that the proposed offence does not require online
communication between two individuals and would capture conduct such as, '...creation
of an online profile, membership of an online group or posting to the online
world at large'.[31]
The proposed offence also captures acts done in preparation of causing harm to
a child, other than engaging in sexual activity.[32]
2.20
The proposed scope of the offence was of concern to a number of
submitters, particularly in relation to the capture of preparatory conduct when
combined with the broad definition of 'harm'.[33]
Some submitters also raised that the fault element for the proposed offence was
not clear[34]
and one submitter noted that it was not clear how the proposed provision would
operate with state and territory legislation.[35]
Preparatory acts
2.21
The Law Council raised concerns that the proposed provision was framed
too broadly and would capture conduct prior to 'any criminal intent [having]
crystallised into any attempt to cause harm, procure, or engage in sexual
activity with a person under 16 years of age'.[36]
2.22
At the public hearing, the Law Council elaborated on this point and
noted that principles established in the Criminal Code at section 11.1 relating
to extensions of criminal liability should be applied to the proposed offence.[37]
The Law Council noted that section 11.1 is the 'attempt' provision, and
provides that a person who attempts to commit an offence is punishable as if
the person committed the offence, provided two requirements are met:
-
firstly, that the person's conduct must be more than merely
preparatory (section 11.1(2) of the Criminal Code);
-
secondly, that the fault elements for the offence are intention
and knowledge (section 11.1(3) of the Criminal Code).[38]
2.23
The Law Council explained the rationale behind these principles:
The rationale behind subsection (2), the more than merely
preparatory aspect of the attempt requirement, is essentially that thought
crimes should not be enacted and that a criminal intention should be manifested
by conduct that demonstrates that the person has moved from thinking about
committing a crime to actually perpetrating it...
The rationale behind subsection (3) in 11.1 is that, since
the attempt offence is criminalising conduct that does not itself cause harm
but is antecedent to the causing of harm, cases deserving punishment require
the most culpable mental state—that is, intention.[39]
2.24
The Law Council went on to explain that the fault element to be proved
for the proposed provision is not well articulated. According to the Law
Council the proposed provision would require 'intention' to be the fault
element pursuant to section 5.6 of the Criminal Code.[40]
However, the way the proposed provision has been drafted would only require an
intention to, for example, post a profile on the internet or a
misrepresentation on a post of some kind.[41]
The Law Council argues that the proposed offence does not make clear that the
fault element is that the person intended to prepare or planned to cause harm
to, engage in sexual activity with, or procure a person under the age of 16
years to engage in sexual activity.[42]
2.25
The ALA agreed, noting that the proposed offence could potentially
capture conduct such as the act of connecting to a mobile phone or internet service,
or purchasing a computer, provided an intention existed.[43]
It concluded that:
Criminalising such acts with no further evidence that
offences against ss474.26 or 474.27 have been committed would be excessive, and
unlikely to protect children in practice. It would, however, be likely to leave
people liable to arrest or prosecution for activities that did not and would
not pose any genuine risk to children.[44]
2.26
The Law Council reflected on the terms of section 272.20 of the Criminal
Code and suggested that the proposed provision should be drafted in similar
terms. In a supplementary submission, the Law Council outlined that the
proposed offence could be worded the following way:
- A person commits an offence if:
- the person does an act;
- the act is done using a carriage service;
- the person is at least 18 years of age; and
- the person intends to facilitate any of the
following:
- causing serious harm to a
person under 16 years of age;
- engaging in sexual activity
with a person under 16 years of age;
- procuring a person under 16
years of age to engage in sexual activity.
- Absolute liability applies to paragraph (1)(b) and
paragraph (1)(c) of the offence.[45]
2.27
According to the Law Council, the above drafting would make clear that
the fault element applies to the 'act' (that is, causing serious harm, engaging
in sexual activity, procuring), as well as the 'facilitation' (that is, the
preparation or planning).
2.28
However, according to the AGD, the proposed offence already clearly
articulates the intention—'You do need to have intention to do an act to
prepare for causing harm, engaging in sexual activity or procuring sexual
activity'.[46]
2.29
In relation to the Law Council's argument that extensions of criminal
liability relating to the 'attempt' provisions of the Criminal Code should be
adopted for the proposed offence, the AGD noted that this would not achieve the
policy objective of the new offence:
Liability for attempt arises from conduct that is more than
merely preparatory. The proposed offence targets conduct that would occur
before liability for attempt would arise.[47]
2.30
The significance of the proposed offence to capture preparatory acts was
explained by the Australian Federal Police:
Whilst the current offences are adequate to provide prosecutorial
avenues... where offenders have made contact and what have you with potential
victims, the additional offences would assist us in preventing and deterring
such contact being made. Essentially, it will assist as far as going down the
path of allowing us to undertake activities or intervene prior to an offence
occurring, as far as contact-type offences occurring, which is the case with
the current offences.[48]
2.31
The Carly Ryan Foundation was also of the view that 'the most powerful
part of this legislation is the fact that we are going to prevent harm against
children. It is going to give police more power to be able to intervene
sooner'.[49]
Definition of 'harm'
2.32
The proposed offence prohibits a person from doing any act in
preparation for, or planning to cause harm to a person under 16 years of age.
'Harm' is defined in the dictionary in the Schedule of the Criminal Code to
include physical harm and harm to a person's mental health, which is further
defined:
'physical harm' includes unconsciousness, pain,
disfigurement, infection with a disease and any physical contact with a person
that the person might reasonably object to in the circumstances (whether or not
the person was aware of it at the time).
'harm to a person's mental health' includes
significant psychological harm, but does not include mere ordinary emotional
reactions such as those of only distress, grief, fear or anger.[50]
2.33
The Law Council noted the broad definition of 'harm' as outlined in the
Criminal Code and explained that causing harm to a person under the age of 16
is not a criminal offence.
Of course, insofar as 'harm' includes 'physical harm', there
are a number of state and territory offences of personal violence to which a
connection could be drawn. However, with one exception relating to causing harm
from unlawful manufacturing of drugs, the substantive offences in the Criminal
Code that criminalise 'causing harm' do not relate to causing harm to a person
under 16 and, in any event, there is no general offence of causing harm to the
mental health of a person under 16 in any jurisdiction in Australia.[51]
2.34
The Law Council explained that the effect of the proposed provision
would be to criminalise conduct which would not, of itself, constitute a
criminal offence.
2.35
The Law Council suggest that the proposed provision be redrafted, with 'harm'
replaced by 'serious harm', which is defined in the Criminal Code in the
following way:
harm (including the cumulative effect of any harm):
(a) that endangers, or is likely to endanger, a person's
life; or
(b) that is or is likely to be significant and longstanding.[52]
2.36
The Law Council raised concerns that the terms 'harm' and 'serious
harm' were too nebulous, particularly in light of it applying to a preparatory
offence, however conceded that if the bill proceeds, the term 'serious harm' is
preferable arguing that '[a]n intention to facilitate the causing of harm that
is not serious harm should not be subject to a penalty of 10 years
imprisonment'.[53]
2.37
Concerns were also raised that the broad definition of harm could
potentially lead to police exercising discretion that conduct was more than
merely 'trivial physical contact' or 'ordinary emotional reactions'.[54]
This could result in a high number of persons being charged with the proposed
offence.[55]
2.38
In response to the Law Council's concerns, the AGD explained that
offences against a person are generally the jurisdiction of states and
territories and that it is an offence in each state and territory to assault a
person, including persons under the age of 16.[56]
Consequently, this would capture conduct which would cause 'physical harm'.[57]
The AGD noted that in a number of states and territories it is also an offence
to cause 'harm to a person's mental health' and that the common law recognises that
actual bodily harm is capable of including psychiatric injury.[58]
The AGD reiterated and elaborated on this point at hearing:
There are a number of state and territory offences that go
directly to causing harm, and the way that is defined includes mental harm.
There are also some states, in their definition of 'assault', where courts have
interpreted 'causing bodily harm' to include psychiatric injury. I guess to
bring that back to this offence and the way that this is structured, the issue
that the Law Council raised in their submission is that if the ultimate offence
of causing harm is not a criminal offence, then is it appropriate to
criminalise the preparatory steps. In large part it is a criminal offence in
states and territories to cause mental harm.
I guess the policy intention behind the bill is not to
specifically link this offence with a specific state offence. I think to do so
would really increase the complexity of the offence and, in doing so, likely
reduce its effectiveness. In referring in this offence to the Commonwealth code
definition of 'harm' ensures uniform operation of that law across Australia.[59]
Application with state criminal
legislation
2.39
The Sexual Assault Support Service expressed its strong support for the
intention and content of the bill, however raised that it was not clear how the
bill would operate with particular sections of the Tasmanian Criminal Code
Act (1924):
[Sections 125B and 125D of the Criminal Code Act]
allow for the consent of the person against whom a crime is alleged to have
been committed to be a defence, if at the time when the crime was alleged to
have been committed, the person was of or above the age of 15 years and the
accused person was not more than 5 years older. Under the Criminal Code Act,
this defence would therefore allow a 20 year old adult to communicate with
intent to procure a 15 year old young person, whereas under the Criminal Code
Amendment (Protecting Minors Online) Bill 2017 we understand that this would be
a chargeable offence.[60]
2.40
The AGD explained that the Criminal Code has provisions which allow
state and territory laws to operate without inconsistency with the Commonwealth's
Criminal Code.[61]
The AGD noted that:
This part of the code states specifically that it is not
intended to exclude or limit the operation of any of the law of the
Commonwealth or any law of a state or territory.[62]
Reversed burden of proof
2.41
The Senate Standing Committee for the Scrutiny of Bills noted that the
proposed offence reverses the burden of proof.[63]
The Scrutiny of Bills Committee explained that the proposed provision will be
inserted into Subdivision F of Division 474 of the Criminal Code which has the
result of the presumption in existing section 475.1B of the Criminal Code
applying.[64]
The Scrutiny of Bills Committee explained the effect of this provision applying
would be to reverse the burden of proof:
[Section 475.1B] provides that if a physical element of a
relevant offence consists of a person using a carriage service to engage in
particular conduct and the prosecution proves beyond reasonable doubt that the
person engaged in that conduct, it is presumed, unless the person proves to the
contrary, that the person used a carriage service to engage in that conduct. A
defendant bears a legal burden of proof in relation to this matter.[65]
2.42
The Scrutiny of Bills Committee explained that it is ordinarily the
prosecution who has a duty to prove all the elements of an offence and in cases
where the burden of proof has been reversed, it expects there to be a full
justification.[66]
It noted that the Explanatory Memorandum provides the following justification
for reversing the burden of proof:
The purpose of this presumption is to address problems
encountered by law enforcement agencies in proving beyond reasonable doubt that
a carriage service was used to engage in the relevant criminal conduct. Often evidence
that a carriage service was used to engage in the criminal conduct is entirely
circumstantial, consisting of evidence, for example, that the defendant's
computer had chat logs or social media profile information saved on the hard
drive, that the computer was connected to the internet, and that records show
the computer accessed particular websites that suggest an association with the
material saved on the hard drive.
The Bill relies on the Commonwealth's telecommunications
power under the Australian Constitution. Therefore, the requirement in the
offence that the relevant criminal conduct be engaged in using a carriage
service is a jurisdictional requirement. A jurisdictional element of the
offence is an element that does not relate to the substance of the offence, or
the defendant's culpability, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth than those
that do not.[67]
2.43
The Scrutiny of Bills Committee noted that while this appears to provide
an explanation as to why the burden of proof is required to be reversed, the
committee also noted that:
...this appears to provide a justification as to why the
evidential burden of proof needs to be reversed, but not necessarily why the
legal burden of proof needs to be reversed. However, the committee also notes
that the relevant requirement (that the conduct engaged in uses a carriage
service) is a jurisdictional requirement that does not relate to the substance
of the offence.[68]
2.44
The Scrutiny of Bills Committee concluded that it would leave the
question of the appropriateness of reversing the burden of proof to the Senate
as a whole.[69]
2.45
The committee notes the advice provided in the Legislation Handbook
relating to reversing the burden of proof:
6.26
The Attorney-General’s Department must be consulted on provisions which:
- reverse
the burden of proof in criminal proceedings (to put the onus on the defendant);
this
should be used only when the matters concerned are within the exclusive
knowledge of the defendant or proof of the matters by the Crown
would be difficult;
- empower
a person to certify conclusively that certain facts exist;
- create
criminal offences and impose pecuniary or imprisonment penalties; or
- empower
officials to enter premises or examine property or documents.[70]
2.46
The committee has considered the concerns raised by the Scrutiny of
Bills Committee and the advice provided in the Legislation Handbook and is of
the view that it is reasonable, in this case, for the burden of proof to be
reversed.
Issuing of telecommunication warrants
2.47
One of the consequential amendments proposed is the repeal of the
heading under subsection 5D(3B) of the TIA Act, which currently reads 'Sexual
offences against children and offences involving child pornography' and
substituting the heading with 'Sexual offences against children and offences
involving child pornography or harm to children'. The Explanatory
Memorandum explains the significance of including the proposed offence as a
serious offence for the purposes of the TIA Act, particularly as it applies to
law enforcement agencies:
Item 3 amends subsection 5D(3B) of the TIA Act to specify
that the new offence is included in the list of sexual offences against
children to be considered a serious offence for the purposes of the TIA Act.
The inclusion of the offence in Subdivision F of Division 474 of the Criminal
Code means that law enforcement agencies that are interception agencies for the
purposes of the TIA Act, are able to apply to an independent issuing authority
for a warrant to intercept communications to support their investigations. As
this type of criminal conduct predominantly occurs online, it is appropriate
for law enforcement to have the tools available to them to detect, investigate
and prosecute offences.[71]
2.48
In its submission, the Law Council raised concerns that this relatively
low threshold, combined with the wide scope of the proposed offence, 'may
result in unwarranted intrusions on privacy'.[72]
2.49
The AGD explained that the TIA Act has a number of safeguards,
accountability and oversight mechanisms which include:
-
the grant or refusal of warrants are determined by an independent
issuing authority;
-
the TIA Act prescribes factors that the judicial authority must
have regard to when deciding whether or not to grant a warrant, including:
-
the level of a person's privacy that is likely to be interfered
with;
-
the gravity of the conduct constituting the offence or offences
being investigated; and
-
the extent of the investigating methods, that do not involve
intercepting communications, that have been used by or are available to the
agency.
-
the TIA Act prescribes a threshold of 'reasonably necessary' for
the authorisation for access to telecommunications data, which would not allow
access to data if it is merely helpful or expedient; and
-
the Commonwealth Ombudsman conducts inspections and reports
annually to Parliament on law enforcement agencies' exercise of interception
powers under the TIA Act.[73]
2.50
The AGD noted that these 'checks and balances' apply to investigations
for a range of criminal offences, including the proposed offence and argue that
the 'measures ensure that an individual's privacy is not unduly burdened'.[74]
Committee views and recommendations
2.51
The committee has reflected carefully on the issues raised by submitters
and witnesses to this inquiry, in particular, in relation to concerns that the
scope of the bill is too broad in capturing preparatory actions. The committee
made note of the evidence relating to the broad scope of the proposed offence.
It is clear that the bill's primary objective is to capture conduct which is
preparatory in nature. While the committee has noted the Law Council's views
that the principles relating to criminal liability for the 'attempt' provisions
of the Criminal Code should be adopted in this provision, the committee agrees
with the AGD that to do so would not achieve the policy objectives of this
bill.
2.52
The committee notes that the bill does not intend for the fault element
of the proposed offence to be open to uncertainty, and acknowledges the
persuasive evidence provided by the Law Council of Australia regarding
enhancements to clarity around the fault elements of the proposed offences. It
is, however, the view of the committee that the current formulation of the
elements of the offence provides a practicable and necessarily flexible solution.
2.53
The committee has considered the definition of 'harm' within the
Criminal Code and notes the Law Council's concerns that the term is too
nebulous, especially as it would apply to a preparatory offence. The committee
also considered the AGD's argument that 'harm', including causing mental harm,
is in fact a criminal offence in states and territories. The committee
considers that another important aspect of this bill is that the offence is not
limited to an intent to engage in sexual activity with a minor but also
encompasses an intent to cause harm to a minor.
2.54
The committee also considered the consequential amendment to the TIA
Act, which would categorise the proposed offence as a 'serious' offence. This
would provide law enforcement agencies with the discretion to apply for a
warrant to intercept communications to assist with investigations. It is the
committee's view that the TIA Act has the necessary checks and balances to
safeguard against unwarranted intrusions on privacy. These safeguards include
factors, as prescribed by the TIA, which an independent authority must take
into consideration when deciding whether or not to grant a warrant. It is the
committee's view that to not proceed with this consequential amendment would
hinder the effectiveness and ability of law enforcement agencies to prevent
harm to minors prior to it occurring.
2.55
The committee notes that previous bills were considered by this
committee which recommended that the bills not be passed or that further
consultation take place prior to its consideration by the Senate. The committee
notes that all previous inquiries have supported the policy intent of the bills
however had expressed the view that the appropriate balance of protecting minors
from online predators, and safeguarding the rights of all Australians, had not
been achieved by the previous bills. The committee considers that the current
bill is narrower in its application to previous bills and ultimately, achieves
the right balance.
2.56
The committee notes the concerns raised by the Scrutiny of Bills
Committee in relation to reversing the burden of proof. The committee
acknowledges that the burden of proof should only be reversed in limited
circumstances and with good justification. Having regard to the advice provided
in the Commonwealth Legislation Handbook, the committee is of the view that
there is reasonable justification for the burden of proof to be reversed.
2.57
The committee supports the objectives of this bill and makes the
following recommendation:
Recommendation 1
2.58
The committee recommends that the Senate pass the bill.
Senator the
Hon Ian Macdonald
Chair
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