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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMINAL CODE AMENDMENT
(MISREPRESENTATION OF AGE TO A MINOR)
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator N Xenophon)
CRIMINAL CODE AMENDMENT
(MISREPRESENTATION OF AGE TO A MINOR) BILL 2010
Background
The purpose of this Bill is to amend the Criminal Code Act 1995 to
make it a criminal offence for a person over 18 years of age to
intentionally misrepresent their age in communications with a person
they reasonably believe to be under 18 years of age.
It follows the case of 15 year old South Australian, Carly Ryan, who
was murdered in 2007 by a 50 year old Victorian man who had posed
online as a 20 year old.
It was discovered that the man (who cannot be named) misrepresented
his age on a number of internet chat websites, including one through
which he befriended Carly Ryan where he intentionally pretended to be
20 years of age.
This Bill is designed to protect those under the age of 18 years from
internet predators who intentionally lie about their age so to gain
the trust of minors.
Currently, in many Australian jurisdictions, police have to prove a
sexual predator has a prurient interest in misrepresenting their
identity. This can be a difficult task and can result in police being
unable to act, even when they believe there is a threat.
This Bill seeks to address this.
Under this Bill, if an adult intentionally lies to a minor about their
age via an online communication, they have broken the law.
There are three offences under this Bill, related to a person over 18
years of age misrepresenting their age to a person they believe to be
under 18 years of age, with three maximum penalties -
misrepresentation of one's age; misrepresentation of one's age to in
order to make it easier to meet minor physically; and
misrepresentation of one's age with the intention of committing an
offence. The maximum penalties are three, five and eight years
imprisonment, respectively.
Notes on clauses
1. Short Title
This clause is a formal provision and specifies that the short title
of Bill, once enacted, may be cited as the Criminal Code Amendment
(Misrepresentation of Age to a Minor) Act 2010.
2. Commencement
This Act will commence on the day on which it receives Royal Assent.
3. Object
The object of this Act is to make it a criminal offence for a person
over 18 years to intentionally misrepresent their age in
communications with a person they reasonably believe to be under 18
years of age, whether:
a) for the purpose of misrepresenting their age in and of
itself; or
b) to make it easier to meet the person physically; or
c) with the intention of committing an offence.
4. Schedule
Under this clause, each Act that is specified in a Schedule to this
Act is amended or repealed as per the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Schedule 1 - Amendment of the Criminal Code Act 1995
Schedule 1 adds the following sections at the end of Division 474 of
the Criminal Code to address the misrepresentation age by a person at
least 18 years of age to persons under 18 years of age.
Subsection (1) of section 474.40 provides that a person who is at
least 18 years of age commits an offence if they use a carriage
service to transmit a communication to another person who they believe
to be under 18 years of age, and in which they intentionally
misrepresent his or her age. This comes with a maximum penalty of
imprisonment for a period of 3 years.
Subsection 474.40 (2) sets out a more serious offence, where the adult
misrepresents their age in order to make it easier to meet the
recipient physically. This comes with a maximum penalty of
imprisonment for a period of 5 years.
Finally, subsection 474.40 (3) provides that a person who is at least
18 years of age commits an offence if they use a carriage service to
transmit a communication to another person who they believe to be
under 18 years of age, and misrepresents his or her age with the
intention of committing an offence, other than an offence under this
section. This offence comes with a maximum penalty of imprisonment for
a period of 8 years.
Section 474.41 deals with age-related issues, matters of belief and
evidentiary matters. The section is modelled on existing Criminal Code
provisions dealing with the use a carriage service to procure or to
'groom' a minor. In particular subsection (1) provides that absolute
liability applies to the physical element of circumstance of the
offence; that the recipient is under 18 years of age. Absolute
liability is applied to ensure that matters related to the age of the
recipient of material are treated in the same manner as offences under
sections 474.26 and 474.27.
Section 474.42 deals with defences, and is again modelled on existing
Criminal Code provisions dealing with the use a carriage service to
procure or to 'groom' a minor.