House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Justice, the Hon Michael Keenan MP)

OUTLINE

CRIMINAL CODE AMENDMENT (PROTECTING MINORS ONLINE) BILL 2017

GENERAL OUTLINE

1. This Bill amends the Criminal Code Act 1995 (the Criminal Code), the Crimes Act 1914 (Crimes Act) and the Telecommunications (Interception and Access) Act 1979 (TIA Act).

2. The Bill introduces an offence to criminalise acts to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16.

3. The Bill promotes the protection of children under the age of 16 from online predators by allowing intervention by law enforcement prior to harm or sexual activity taking place. Under this Bill, if an adult uses a carriage service to prepare or plan to cause harm, procure, or engage in sexual activity with a person under the age of 16, that person will have committed an offence. This includes a person misrepresenting their age online as part of a plan to cause harm to another person under 16 years of age.

4. The offence focuses on the use predators make of online interactions, such as social media and messaging applications, to further their exploitative ends. Predators are increasingly exploiting the anonymity of the internet to forge relationships with children as a first step in luring them for sexual abuse and other forms of harm. The new offence targets a broader range of preparatory conduct than captured by existing offences.

5. The new offence will complement existing offences in the Criminal Code for using a carriage service to procure and groom persons under 16 years of age, criminalising preparatory stages of online conduct intended to cause harm to children.

6. The offence is directed at protecting persons under 16 years of age. This is consistent with the age of consent in the majority of Australian States and Territories. Setting the age of consent at 16 years of age strikes the appropriate balance between the need to protect vulnerable persons from sexual exploitation, and the need to allow for sexual autonomy.

7. Schedule 2 of the Bill will make consequential amendments to ensure existing law enforcement powers are available to combat all Commonwealth child sex-related offences. Schedule 2 will make consequential amendments to the Crimes Act and the TIA Act.

8. Further detail about the measures in the Bill and their human rights implications are provided below.

FINANCIAL IMPACT

9. The Bill will have no financial impact on Government revenue.

Abbreviations used in the Explanatory Memorandum

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (Protecting Minors Online) Bill 2017

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.

Overview of the Bill

2. This Bill amends the Criminal Code Act 1995 (the Criminal Code) to create a new offence criminalising acts done using a carriage service to prepare or plan to cause harm to, procure, or engage in sexual activity with, a person under the age of 16 (a child). The Bill protects children from internet predators by allowing intervention by law enforcement agencies prior to sexual activity taking place or other harm being done.

3. The Bill makes consequential amendments to ensure existing law enforcement powers are available to combat Commonwealth child sex-related offences. Schedule 2 will make consequential amendments to the Crimes Act 1914 (Crimes Act) and Telecommunications (Interception and Access) Act 1979 (TIA Act).

Human rights implications

4. The human rights engaged by the Bill are those set out in the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). The Bill promotes or engages the following human rights:

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rights of the child:

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the best interests of the child as a primary consideration

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the right of a child to be heard in judicial proceedings

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protection of the child from all forms of physical or mental violence, including sexual abuse

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protection of the child from all forms of sexual exploitation and abuse

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rights engaged by criminal offences and proceedings:

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the right to an effective remedy

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the right to freedom from arbitrary detention

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right to presumption of innocence

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minimum guarantees in criminal proceedings

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right to protection against arbitrary and unlawful interferences with privacy, and

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right to freedom of expression.

Rights of the Child

5. The Bill engages the rights of the child in the CRC by promoting those rights set out in Articles 3, 12(2), 19 and 34 of the CRC.

6. Article 3 of the CRC recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. The Bill promotes this right by protecting children from harm in person and online.

7. Article 12(2) of the CRC requires a child be provided the opportunity to be heard in any judicial proceeding affecting the child in a manner consistent with national procedural rules. The Bill promotes this right by ensuring child complainants are treated as vulnerable witnesses under Part IAD of the Crimes Act. Vulnerable witness protections include testimonial aids such as the ability to give evidence by means of closed-circuit television, video recording or video link, or the provision of an offence relating to the unauthorised publication of a witness' name or identifying characteristics. These measures will minimise the risk of additional trauma and promote the participation of child complainants in judicial proceedings for this offence.

8. Article 19 of the CRC requires legislative measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. Article 34 requires children be protected from all forms of sexual exploitation and sexual abuse, including the inducement or coercion of a child to engage in any unlawful sexual activity.

9. The Bill promotes the rights of the child to be protected from physical or mental violence, sexual exploitation and abuse. It increases the protection of children online from those who would do them harm. The Bill strengthens the ability of law enforcement to intervene during the planning or preparatory stage of child exploitation, prior to harm or sexual abuse occurring. The focus on prevention promotes the protection of children from harm or sexual activity before it has taken place.

Rights engaged by criminal offences and proceedings

(a)Right to an effective remedy - Article 2 of the ICCPR

10. The Bill promotes the right to an effective remedy set out in Article 2 of the ICCPR. In particular, the Bill improves the capacity of witnesses to give effective evidence. Schedule 2 of the Bill makes consequential amendments so that Part IAD of the Crimes Act - Protecting vulnerable persons - applies to the offence. These protections minimise the risk of additional trauma and promote the participation of child complainants in judicial proceedings for this offence.

(b) Right to security of the person and freedom from arbitrary detention - Article 9(1) of the ICCPR

11. The right to personal liberty set out in Article 9(1) of the ICCPR requires that persons not be subject to arrest and detention except as provided for by law, and provided that neither the arrest nor the detention is arbitrary. In addition to having a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought.

12. The Bill engages the right to freedom from arbitrary detention under Article 9(1) by creating an offence for which a court may lawfully prescribe a period of imprisonment for a person found guilty of the offence.

13. The maximum penalty of 10 years imprisonment is necessary to ensure that the serious offence of engaging in conduct to prepare or plan to cause harm to, procure, or engage in sexual activity with a child is matched by commensurate punishment. The penalty is reasonable to achieve the legitimate objective of ensuring that the courts are able to hand down sentences to online predators that reflect the seriousness of their offending. The penalty is reasonable given that the penalties will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures as established by law. Maximum penalties are set to adequately deter and punish a worst case offence, including repeat offences, while supporting judicial discretion and independence. The penalty will only be applied by a court if the prosecution has proved the elements of the offence beyond reasonable doubt. Further, the penalty will apply only to offences committed at or after the commencement of the amendments.

14. There are clear and serious social and systemic harms associated with online predators engaging in conduct aimed at harming children. The penalty is proportionate in that it supports the courts' discretion when sentencing offenders. It is the Australian Government's responsibility to enshrine maximum penalties for Commonwealth offences in legislation, and the penalty is sufficiently high to allow courts to impose appropriate punishments for the most serious offences.

(c) Right to presumption of innocence - Article 14(2) of the ICCPR

15. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

16. The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offence. The presumption in section 475.1B provides that if a physical element of the 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 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.

17. 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.

18. 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.

19. Given this purpose of the presumption, and that the offence is not unreasonable in the circumstances and maintains the rights of the defendant, the Bill does not violate the presumption of innocence.

(d) Minimum guarantees in criminal proceedings - Articles 14 and 15 of the ICCPR

20. Articles 14(2) to (7) and Article 15 of the ICCPR provide minimum guarantees which apply to criminal proceedings. Article 14 provides that, in the determination of any criminal charge against a person, that person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14 also contains a range of minimum guarantees in criminal proceedings.

21. The provisions of the Bill do not affect existing legislation relating to procedural fairness. The Bill engages the right to a fair trial and the right to minimum guarantees in criminal proceedings by the consequential amendment in Schedule 2 that includes the new offence in Part IAD of the Crimes Act. This part of the Crimes Act deals with protecting vulnerable persons in criminal proceedings.

22. Vulnerable witness protections may include testimonial aids such as the ability to give evidence by means of closed-circuit television, video recording or video link, or the provision of an offence relating to the unauthorised publication of a witness`s name or identifying characteristics. These protections ensure witnesses can present their testimony to the court, and minimise the risks of intimidation, additional trauma, fear for personal safety or public embarrassment. If a witness is unable to give reliable evidence, or is reluctant to give evidence at all, this may adversely affect the outcome of a trial.

23. The Bill serves the legitimate objective of improving the ability of victims to seek an effective remedy. These consequential amendments to the Crimes Act in Schedule 2 of the Bill also serve the objective of promoting the rights of the child.

Right to protection against arbitrary and unlawful interferences with privacy

24. Paragraph 1 of Article 17 of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence. Paragraph 2 of Article 17 of the ICCPR recognises the right of everyone to the protection of the law against such interference. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, for a reason consistent with the ICCPR, and reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case.

25. Consequential amendments in Schedule 2 of the Bill will include the new offence in the list of sexual offences against children to be considered a serious offence for the purposes of the TIA Act and will apply Part IE of the Crimes Act (Forfeiture of child pornography material and child abuse material) to the offence.

26. Consequential amendments categorise the new offence as a 'serious offence' under the TIA Act. The TIA Act sets out conditions that must be met before a law enforcement agency can intercept or access telecommunications for the purposes of investigating the new offence. Lawfully intercepted information or interception warrant information can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more. The TIA Act prohibits law enforcement agencies from intercepting telecommunications, or making historical or prospective authorisations to access stored communications, unless an appropriate warrant is in force. Requirements under the TIA Act ensure that interference with the privacy of any person or persons that may result from intercepting or accessing telecommunications data is one of a range of considerations taken into account when issuing a warrant. To the extent that the issuing of a warrant itself entails a limitation on the right to privacy that limitation is reasonable, necessary and proportionate.

27. Consequential amendments will include the new offence at 474.25C of the Criminal Code in the definition of Commonwealth child sex offence for the purposes of the Crimes Act. Part IE of the Crimes Act applies to Commonwealth child sex offences. Part IE contains a specific Commonwealth scheme for the forfeiture of child pornography and child abuse material. The scheme applies to an item that is either child pornography material or child abuse material, or a computer, data storage device or other electronic equipment that contains child abuse material or child pornography material. An item will become forfeitable if a law enforcement officer believes it was derived from, or used in connection with, the commission of a Commonwealth child sex offence.

28. In this case, the legitimate end is public safety, addressing crime and protecting the rights and freedoms of children. To the extent that the right to privacy is impinged, the interference corresponds to a pressing social need, that is, the need for law enforcement agencies to effectively investigate and prosecute crime.

Freedom of expression

29. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime) where such restrictions are provided by law and are necessary for attaining one of these purposes. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. Limitations on freedom of expression on the grounds of public order include limitations for the purpose of preventing crime. In order for the proposed laws to be considered a necessary restriction on freedom of expression on the grounds of public order, the restriction must be clearly defined.

30. The Bill engages the right to freedom of expression in Article 19 to the extent that it criminalises the use of a carriage service to perform acts preparatory to harming, procuring or engaging in sexual activity with a person under the age of 16, as this may have an impact on the use of carriage services to seek, receive and impart information.

31. The Bill aims to prevent criminal activity by targeting preparatory conduct for harming, procuring or engaging in sexual activity with a person under the age of 16. To the extent that the right to freedom of expression in Article 19 is restricted, these restrictions are provided by law and for the purpose of preventing online crimes against children.

32. The Bill also promotes the right to freedom of expression of children by further protecting their right to seek, receive and impart information using a carriage service, free from the threat of harm and sexual exploitation.

Summary

33. Any interference with human rights occasioned by this Bill is in pursuit of a legitimate aim - the prevention of harm and sexual exploitation of children. The Bill is compatible with human rights given it promotes the protection of human rights, specifically the rights of the child, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

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.