CRIMINAL LAW CONSOLIDATION (DISHONEST DEALINGS WITH CHILDREN) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 July 2013.)

The Hon. R.P. WORTLEY (23:45): The Hon. John Darley MLC introduced the Criminal Law Consolidation (Dishonest Dealings with Children) Amendment Bill on 15 May 2013. This private member's bill is based on a similar Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 introduced to the Senate by Senator Nick Xenophon. The 2013 Xenophon bill is itself based on an earlier bill that Senator Xenophon introduced to the Senate in 2010—the Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010. The common theme of all these bills is to promote child safety and to counter online predatory behaviour by adults towards children.

The government supports the objective behind this bill. The bills were all prompted by the tragic case of Carly Ryan, who was murdered by an online predator and child molester. What happened to Carly serves as a vivid but, sadly, not unique example of the dangers posed to children by adult sexual predators who use the internet to groom their victims.

The Carly Ryan Foundation, established by Carly's mother, Sonya, carries out valuable work, promoting online safety for children and educating children and parents on safe internet usage. Sonya Ryan was named South Australian of the Year in November 2012 in recognition of her important work to improve the safety of our children.

Predatory online conduct on the internet by adults aimed at children is an ever increasing problem. In South Australia, the relevant offences are found at section 63B of the Criminal Law Consolidation Act 1935. Section 63B of the act states that a person who makes a communication with a child with the intention of procuring that child to engage in or submit to a sexual activity is guilty of an offence. This offence is punishable by a sentence of up to 12 years.

Section 63B further states that a person who makes a communication with a prurient purpose and with the intention of making a child amenable to sexual activity is guilty of an offence punishable by a sentence of up to 12 years. These offences will capture the vast amount of online grooming activity.

The purpose of the Hon. John Darley's bill is to capture a different type of grooming activity. The first offence included in the Hon. John Darley's bill seeks to criminalise the act of a person lying about his or her age or identity to a child, then arranging to meet or actually meeting that child without the need to prove any intention to commit another offence. The second offence included in the Hon. John Darley's bill includes that additional element; namely, that the person intends to commit an offence when meeting with the child. A higher penalty applies to this second offence.

The government has filed an amendment to the Hon. John Darley's bill that removes the first offence and slightly changes the second offence. The most important changes are clarifying that the offender must have lied about his or her age by claiming to be younger, and removing the reference to identity from the offence, thereby limiting it to a lie about the age of the offender. The government considers that this amendment is better targeted at the behaviour the Hon. John Darley's second offence seeks to capture, being the type of behaviour Carly Ryan's murderer engaged in.

The government is sympathetic to the objective of the first offence, but is hoping to work on the drafting of this offence with the Hon. John Darley between the houses. The first offence represents a significant development in the criminal law. It will criminalise the act of lying about your age to a child and then attempting to meet with that child. The government agrees that it is extremely difficult to contemplate an innocent example of this sort of conduct but, given the concerns expressed in the past by the South Australian police and the Law Society of South Australia, wants to work with the Hon. John Darley further on this proposed offence.

Most importantly, work needs to be done on whether this offence ought to be included in the redraft of the current grooming offences of section 63B of the Criminal Law Consolidation Act, rather than with the dishonesty offences in part 5. The contribution of the commonwealth Attorney-General's Department to the Senate's committee inquiry into Senator Xenophon's bill noted that the conduct sought to be criminalised in this bill goes beyond the accepted limits of criminal responsibility. This is true. The conduct contained in the first offence in this bill goes beyond the current accepted limits of criminal responsibility, but that does not mean that these limits should not be questioned. The government is committed to working on this important issue and looks forward to further debate on these issues and the progression of this legislation or similar legislation during the next parliament.

I conclude by noting that the Victorian parliamentary inquiry into the handling of child abuse by religious and other non-government organisations only this month also highlighted the need to extend the criminal law to capture grooming activities, including the capture of the grooming of parents and carers of the intended victim. The government supports the second reading vote, but will move its amendment if the council is minded to proceed to the committee stage.

The Hon. S.G. WADE (23:50): As the Hon. Russell Wortley indicated, this bill is a response to the murder of 15-year-old Carly Ryan by Garry Newman. Newman constructed an alter ego through the internet which he used to lure Ms Ryan to meet up with him before he murdered her at Port Elliott. Investigations found that Newman was a serial predator with over 200 fake identities. He was sentenced to life imprisonment with a nonparole period of 29 years for the murder of Carly Ryan.

The commonwealth criminal code and the Criminal Law Consolidation Act of South Australia both already include offences in relation to grooming or procurement of children. For example, section 63B of the Criminal Law Consolidation Act makes it an offence for a person to procure an indecent act by a child. However, it is not an offence under the code or the CLCA for a person to lie about their age or identity to a child with the intention of meeting, or arranging to meet, with a child or lying about their age or identity, including the intention of committing an offence.

The Darley bill would make it an offence for a person to knowingly communicate with a child by electronic means—that is by the internet or other electronic means—and make a false statement about the person's age or identity and to meet or arrange to meet a child, the maximum penalties being five years where there is no intention to commit an offence and 10 years where there is an intention to commit an offence.

As the Hon. Russell Wortley reminded the council, the bill before us is similar to the bill that the Hon. Senator Xenophon tabled in the Senate to amend the commonwealth criminal code. The Senate Legal and Constitutional Affairs Committee reviewed the bill and in mid-2013 recommended that the bill not be made law. The prevailing view of stakeholders is that the Xenophon bills duplicate grooming and procurement offences and are so broadly drafted that they will capture innocent conduct, such as acts by parents or persons in loco parentis.

Other comments were: criminal offences should attach to misrepresentation, not merely the intent to misrepresent; inappropriately the bills capture situations where the communicator reasonably believes that the person is not a child; and, lastly, they criminalise a misrepresentation of age to a person under 18 years of age, even if consensual sexual activity between the sender of the communication and its recipient would not otherwise be a crime.

The Carly Ryan Foundation and cyber safety expert, Ms Susan McLean, support the Xenophon bill on the basis that it is important to provide police with the ability to investigate and prosecute offenders prior to the commission of any procurement or grooming offences. I acknowledge that the Hon. John Darley has picked up a number of the learnings from the Senate Legal and Constitutional Affairs Committee in the drafting of this legislation. I note that only yesterday the government filed an amendment to this bill. It was little over 24 hours ago. Considering that this motion was moved on 15 May, it is disappointing that it has taken the government so long to engage in the bill, and disappointing that the amendment was not tabled earlier.

The government talks about working with the honourable member to develop the amendments. If the government had chosen to table the amendment in something more than the one day before the end of the scheduled parliamentary sittings for the year, their claim of commitment would carry more credibility. Nonetheless, the parliamentary Liberal Party supports the bill. We do believe that there is an opportunity to strengthen the law in this area so that we may provide better protection to children in South Australia.

The Hon. T.A. FRANKS (23:55): I rise incredibly briefly, given the late hour and the further debate that we have, to indicate that the Greens support further debate on this issue, and so we will support a second reading of this bill.

The Hon. J.A. DARLEY (23:56): I just want to make some comments before adjourning. I note the government's contribution on this bill and the fact that it says that some effort has been made to address this issue. There is no question that the proposed amendment signifies a shift from the original position that was put to me by the government some months ago. That said, in my view the government has not moved far enough, and the proposed amendment is wholly unsatisfactory.

Let me remind the government of the sort of person this bill is aimed at. On 20 February 2007, Carly Ryan, aged just 15 years, was brutally murdered at the hands of 50-year-old Garry Francis Newman, a perverted online predator who manipulated his way into Carly's life through deception. He did so by pretending to be 20-year-old 'Brandon Kane', a musician from Melbourne. At her 15^th birthday, Garry took on another identity, this time that of Brandon's father, 'Shane'.

Some time later, after rejecting his sexual advances, Garry convinced Carly to meet him through the use of his online identity. He took her to a secluded beach where he proceeded to bash her and suffocate her, before finally throwing her into the water to drown. Within 11 days of Carly's murder, detectives were able to locate Garry, only to discover him talking online with a 14-year-old girl from Western Australia. On 13 March 2010, Justice Trish Kelly ordered Garry Francis Newman to life imprisonment with a 29-year nonparole period for Carly's murder. During sentencing, she stated:

Garry Newman deserves a life behind bars for his grossly perverted plan to deceive, seduce and murder Carly. It was a terribly cruel thing you did to this beautiful, impressionable 15-year-old child. I say 'child' because that's what she was, a child that fell in love with the idea of the handsome, musically inclined and rather exotic Brandon Kane. The real man was in fact an overweight, balding, middle aged paedophile with sex and murder on his mind.

That is the sort of person this bill is aimed at. Each day, thousands of paedophiles go online with the single purpose of luring in young, unwitting victims. I would like the government to explain to me what part of this behaviour ought to be deemed acceptable: the fact that they have lied about their age, the fact that they have lied about their identity, or the fact that they have done either of these two things and are making an attempt of meeting up with their young and innocent victims in person?

I acknowledge only too well that this bill creates an offence where one did not exist before. That is the whole point. I would like someone to explain to Sonya Ryan why it is that this government does not consider it acceptable to create a new offence that would apply to these predators, because that is what they are, and their conduct deserves to be punished accordingly.

If the government wants to talk about degrees of penalties, if they want to suggest perhaps a fine and a criminal conviction for offences at the lower end of the spectrum and gaol terms at the higher end of the spectrum, that is something I am more willing to consider, but I will not accept the argument that the current law is wide enough to deal with these creeps, or that it is inappropriate to create a new offence where one does not exist before, or that it is too broad in scope. We create new offences in this parliament every day. We identify activities that are deemed unacceptable by community standards, and we make the perpetrators of such activities accountable for their actions. This should not be any different.

I appreciate that the Attorney's office has put a great deal of work into this issue in recent weeks, and my comments are not intended as a criticism of that. I agree with the Hon. Stephen Wade's comments that it is a pity that things did not occur before this. What I am critical of is the position the government has chosen to adopt with respect to this bill, and I do intend to pursue this matter further over the coming months and into the next election. With that, I seek leave to conclude my remarks.

Leave granted; debate adjourned.