Last week the Federal Parliament passed two Bills to improve the protection of minors when they use the internet.  The Criminal Code Amendment (Protecting Minors Online) Bill 2017 (Cth) (the Criminal Code Amendment Bill) and the Enhancing Online Safety for Children Amendment Bill 2017 (Cth) (Enhancing Online Safety Bill) will respectively amend, the Criminal Code 1995 (Cth) and the Enhancing Online Safety for Children Act 2015 (Cth).  The Criminal Code Amendment Bill and the Enhancing Online Learning Bill will provide extra protection for all Australians when they use the internet and will also provide more education around online safety

Criminal Code Amendment Bill

The Criminal Code Amendment Bill inserts section 474.25C into the Criminal Code 1995 (Cth).  Section 474.25C will prohibit the use of a carriage service to prepare or plan to cause harm to, procure or engage in sexual activity with persons under 16.  Under the new section, a person who misrepresents their age, profession, or an event online as part of a plan to lure a child to cause harm to another person under 16 years of age, will be committing an indictable offence.  Examples of carriage services include social media, a messaging application or texting. The offence will carry a maximum penalty of 10 years imprisonment.

The Explanatory Memorandum identifies the increasing exploitation by predators of the anonymity of the internet to forge relationships with children as a first step to groom and lure them for sexual abuse or other forms of harm, as a reason for introducing the new offence.

The main aim of the Criminal Code Amendment Bill is to allow law enforcement to intervene, prior to the harm of or sexual activity taking place and protect persons under the age of 16.  This is consistent with the age of consent in most states and territories.

The Criminal Code only applies to Commonwealth offences, which exist in addition to state and territory criminal offences. This new preparatory Federal offence is similar to the new Victorian encouragement offences described in our previous School Governance article.

Enhancing Online Safety Bill

The Enhancing Online Safety Bill makes changes to the Enhancing Online Safety Act 2015 (Cth) which is the legislation that establishes the e-Safety Commissioner and gives the Commissioner the power to investigate complaints about serious cyber-bullying material targeted at an Australian child.  Under the Bill, the Commissioner's powers will be broadened to help protect the safety of all Australians, not just children.

Consequently:

• the name of the Enhancing Online Safety for Children Act 2015 (Cth) will become the Enhancing Online Safety Act 2015 (Cth); and
• the Children’s e-Safety Commissioner will be renamed the e-Safety Commissioner to reflect the broader role for online safety that the Commissioner will be undertaking.

As explained in this Government press release, 'the e-Safety Commissioner will be tasked with delivering the Government's commitments to improve the digital confidence and skills of senior Australians, and establish a national online complaints mechanism where victims can report cases of intimate photos or videos being posted without consent (i.e. “image-based abuse”) and access support.'

The Enhancing Online Safety Bill expands the functions of the e-Safety Commissioner to include:

• promoting online safety for Australians;
• administering a complaints system for cyber-bullying material targeted at an Australian child;
• coordinating activities of Commonwealth Departments, authorities and agencies relating to online safety for child; and
• administering the online content scheme under the Broadcasting Services Act 1992 (Cth).

The amendments will allow the e-Safety Commissioner to act to protect a broader range of vulnerable Australians including victims of domestic and family violence and people who have intimate images shared without their consent.

The e-Safety Commissioner will be responsible for administering a cyber-bullying complaints system, but it will remain confined to material targeting Australian children.  While the Federal Government recognises that cyber-bullying applies to both adults and children, there are existing avenues, including criminal laws, to deal with the people who use the internet to menace, intimidate or harass.  The Federal Government, at this time, does not consider the need to create any new powers to investigate cyber-bullying between adults, as they view child victims of bullying to be the priority.

Relevance to schools

Both the Criminal Code Amendment Bill and the Enhancing Online Safety Bill will amend their corresponding Acts and provide extra protection for children.  There is also a relationship between the two sets of legislation as the e-Safety Commissioner works to help victims prosecute offenders who commit cyber-bullying offences under the Criminal Code.

Cyber-bullying is a growing problem in schools and especially amongst children, which can result in drastic and unfortunate outcomes.  With one in 10 children being exposed to cyber-bullying, schools and parents need know how to appropriately deal with the problem.  Currently, the Office of The Children’s e-Safety Commissioner provides some general guidance as to what cyber-bullying is and how it can be dealt with.

The Criminal Code Amendment Bill and the Enhancing Online Safety Bill will allow school staff to remain vigilant of any suspicious conduct of other staff while also educating the school community of the dangers and the dark side of the internet.