Explanatory Memorandum
(Circulated by the authority of the Minister for Justice, the Hon Michael Keenan MP)NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Criminal Code Amendment (Protecting Minors Online) Act 2017.
Clause 2 - Commencement
2. Clause 2 provides for the commencement of each provision, as set out in the table. Item 1 in the table provides that the provisions will commence on the day on which the Bill receives Royal Assent.
Clause 3 - Schedules
3. Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in the relevant Schedule, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1 - Amendments
4. Schedule 1 amends the Criminal Code to insert a new offence for the preparation or planning to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under the age of 16, using a carriage service.
Item 1
5. This item will repeal the existing heading and substitute a new heading to the subdivision. The new heading will reflect the broadened scope of the subdivision from offences relating to the use of a carriage service involving sexual activity with persons under 16 to also include references to preparing or planning to cause harm to persons under 16 in the new offence.
Item 2
6. This item will insert a new offence criminalising acts to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16. The Bill inserts new section 474.25C into the Criminal Code to create an offence of using a carriage service to prepare or plan to cause harm, procure, or engage in sexual activity with a person under the age of 16 years. For example, a preparatory act may include a person using social media to lie about their age, profession or an event in an attempt to lure a child to a meeting for the purposes of causing a child harm or procuring or engaging in sexual activity with a child.
7. New section 474.25C criminalises a broader range of conduct preparatory to causing harm to a child than the existing procurement and grooming offences set out in sections 474.26 and 474.27 of the Criminal Code. 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.
8. The offence will capture preparatory conduct, irrespective of whether a recipient child is communicated with or identified. An example of conduct that does not involve communication with an identified child is the creation of a social media profile by a predatory adult with the intention of using that profile to establish an online relationship with a child as a preparatory step to harming or engaging in sexual activity with a child. Because the offence does not require a specific recipient to be identified or communicated with, technical provisions that set out liability and evidentiary requirements in section 474.28 of the Criminal Code are not applicable to this offence. Neither are defences of mistake of age set out in section 474.29 of the Criminal Code.
9. The focus on the conduct of the adult will ensure the offence applies where a law enforcement officer assumes the identity of a fictitious child to interact with predatory adults over the internet and social media. The predatory adult will be engaging in criminal conduct where he or she has an intention to cause harm to, procure or engage in sexual activity with the fictitious child.
10. Section 474.25C will cover a broad range of preparatory activities that make use of telecommunications or carriage services (such as social media and the internet), undertaken to plan or prepare to cause harm to, procure, or engage in sexual activity with a person under 16 years of age.
11. The legislative example in section 474.25C, of a person misrepresenting their age online as part of a plan to harm a child, provides an illustration of the type of conduct targeted by the offence. The example in no way limits the type of conduct that can be a preparatory act, whether or not that preparatory act involves any kind of misrepresentation.
12. The reference to 'harm' in paragraph (a)(i) has the same meaning as that set out in the Dictionary in the Schedule of the Criminal Code, and covers both physical and mental harm.
'harm' means physical harm or harm to a person's mental health, whether temporary or permanent. However, it does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.
'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.
13. The inclusion of acts done in preparation for causing or planning to cause harm to a child include circumstances where there is an intent to harm the child but no evidence of an intent to engage in sexual activity. The offence captures conduct preparatory to a broader range of harm than currently exists and recognises that not all preparatory conduct is linked with an intention to engage in sexual activity with the child. The offence is not meant to capture trivial physical contact or ordinary emotional reactions and allows for judgements to be made about what conduct is acceptable or incidental to social interaction or life in the community.
14. The reference to 'engaging in sexual activity' in paragraph (a)(ii) is not limited to sexual activity engaged in in 'real life' but also includes preparing or planning to engage in online sexual activity with a child. 'Engaging in sexual activity' includes a person in the presence of another person (including by means of communication that allows the first person to see or hear the other person) while the other person engages in sexual activity. This definition extends to an act that does not necessarily require physical contact. An example of preparing or planning online sexual activity with a child would be an offender who creates an online gaming profile as part of a plan to masturbate in front of a web cam while a child watches through the online game.
15. The reference to 'procuring' in paragraph (a)(iii) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. 'Procure' is defined in the Criminal Code to cover a range of activity reflecting the fact that a sender may encourage a recipient to engage in 'consensual' sexual activity, but may also coerce a person into engaging in 'non-consensual' activity.
16. Paragraph 474.25C(b) makes it clear that the offence only targets adult offenders (that is, persons who are at least 18 years of age). It is not proposed to capture conduct engaged in by persons under 18 years of age.
17. The offence under section 474.25C will be punishable by a maximum penalty of 10 years imprisonment. The maximum penalty level proposed is less than the maximum penalty for other preparatory child sex offences of procurement (imprisonment for 15 years) and 'grooming' (imprisonment for 12 years) in Part 10.6 of the Criminal Code. The proposed maximum penalty of 10 years is consistent with the serious nature of offending behaviour, given the requirement for the commission of an act preparing or planning to cause harm, procure, or engage in sexual activity with, a child.
18. The requirement that a carriage service was used to engage in the criminalised conduct in subsection 474.25C(c) provides the relevant connection to the Commonwealth's telecommunications power under the Australian Constitution. As the offence will be inserted into Subdivision F of Division 474 of the Criminal Code, the presumption set out in section 475.1B of the Criminal Code that conduct is engaged in using a carriage service will apply. This presumption provides that, in relation to the element of the offences that a carriage service was used, if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
19. As a telecommunications offence, Category A geographical jurisdiction, as set out in section 15.1 of the Criminal Code, will apply to the proposed offence. The application of Category A jurisdiction means that regardless of where conduct constituting an offence occurs, if the results of that conduct affect Australia the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction also covers an Australian citizen in another country who engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.
Schedule 2 - Consequential Amendments
20. Schedule 2 amends the Crimes Act and TIA Act to ensure existing law enforcement powers available to Commonwealth child sex-related offences are available for the new offence.
Item 1
21. Item 1 amends subparagraph 3(1)(a)(iv) of the Crimes Act to specify the inclusion of the new offence in the definition of Commonwealth child sex offence.
Item 2
22. Item 2 amends paragraph 15Y(1)(cba) of the Crimes Act to specify that existing protections for child complainants in criminal proceedings are also available with respect to the new offence.
Item 3
23. 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.