Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697640762739.pdf (Australia)
Page 5 Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 Introduced into the Senate on 26 February 2013 By: Senator Xenophon Summary of committee view The committee considers that the bill appears to limit the right to freedom of 1.17 expression, the right to privacy, and possibly freedom of association, but that these limitations are aimed at the legitimate objective of seeking to protect children.
However, the committee seeks clarification as to why it is necessary (in addition to the offence of misrepresenting one's age with the intent of committing an offence) to have a separate offence of misrepresenting one's age to encourage a child to meet the defendant with no intention to commit an offence 1.18 The committee seeks further clarification as to whether imposing an evidential burden on the defendant under proposed section 474.41(2) is compatible with the right to be presumed innocent.
Overview This bill seeks to amend the Criminal Code Act 1995 to make it a criminal 1.19 offence for a person over 18 years of age to intentionally misrepresent his or her age in online communications with a person they reasonably believe to be under 18 years of age: (a) for the purpose of encouraging the recipient to physically meet with the sender (or any other person); or (b) with the intention of committing an offence.
Compatibility with human rights 1.20 The bill is accompanied by a self-contained statement of compatibility that addresses a number of the human rights engaged by the bill.
The statement refers to the criminal procedure rights guaranteed by article 14 of the International Covenant on Civil and Political Rights (ICCPR) (in particular the right to be presumed innocent), the right to privacy guaranteed by article 17 of the ICCPR, and the rights of the child guaranteed by article 23 of the ICCPR and various provisions of the Convention on the Rights of the Child.
In addition to those rights, the bill also engages the rights to freedom of 1.21 expression (article 19, ICCPR) and possibly also freedom of association (article 21, ICCPR).

Page 6 1.22 The statement of compatibility states: The Bill creates a specific offence aimed at protecting minors from adults who deliberately misrepresent their age for the purpose of arranging a physical meeting or committing another offence.
The Bill aims to address situations where adults pretend to be close to the age of a minor with whom they are communicating, so that the minor is more open to communications with that adult.
This is a technique known to be used by adults seeking to physically harm minors, where minors have been deceived and become victims of violence and abuse.6 1.23 Insofar as it criminalises specific actions by which a person seeks to make contact with another person, the bill involves a limitation on the exercise of a person’s freedom of expression guaranteed by article 19 of the ICCPR, the right not to have one’s privacy unlawfully or arbitrarily interfered with guaranteed by article 17 of the ICCPR, and possibly also the freedom of association guaranteed by article 22 of the ICCPR.
1.24 Under each of these guarantees, limitations are permissible if they are adopted in pursuit of a legitimate objective, are rationally related to achieving that objective and are a reasonable and proportionate means of pursuing that goal.
1.25 The bill provides that it will be an offence if a person over 18 misrepresents his or her age in online communications either (a) for the purpose of encouraging the recipient to physically meet with the sender (or any other person); or (b) with the intention of committing an offence.

the misrepresentation be made to encourage the person to meet with the adult and that this be done with the intention of committing an offence.
It would thus be an offence for an 18-year old to represent that he was 17 in order to encourage a 17-year old girl to meet him; or indeed if he misrepresented himself as 21 for the same purpose, in either case without any intention to commit an offence.

is not a requirement that It 1.26 While the two offences would capture the types of serious cases the bill targets, the current formulation may be over-inclusive.
1.27 The committee considers that the bill appears to limit the right to freedom of expression, the right to privacy, and possibly freedom of association, but the committee is of the view that these limitations are permissible as they are aimed at the legitimate objective of seeking to protect children.
1.28 However, the committee intends to write to Senator Xenophon to seek clarification as to why it is necessary (in addition to the offence of misrepresenting one's age with the intent of committing an offence) to have a separate offence of 6 Statement of compatibility, p 5.

Page 7 misrepresenting one's age to encourage a child to physically meet the defendant, where there is no intention to commit an offence.
Right to privacy and access to records of online communications 1.29 The statement of compatibility refers to the possibility that a person’s privacy may be encroached on by law enforcement authorities gaining access to the person’s online communication records for the purpose of investigating or prosecuting an alleged offence.
The statement notes that this would engage article 17 of the ICCPR but that such information ‘is subject to existing protections and can only be accessed when it is suspected an offence has been committed.

This is in line with established legal protections, and as such is considered a permissible limitation.’ 1.30 The statement of compatibility does not refer to specific powers to intercept or gain access to online communications which might be applicable.
Without this information the committee notes that it is not possible to assess whether any limitations on the right to privacy provided for in other legislation can be concluded to be a reasonable and proportionate restriction on the enjoyment of that right.

Right to be presumed innocent Proposed new section 474.14(2) and section 474.42(1) impose an evidential 1.31 burden on the defendant in a prosecution for an offence under the proposed new section 474.40.
This engages the right to be presumed innocent under article 14 of the ICCPR.

The statement of compatibility does not explicitly justify this provision.
While proposed new section 474.42(1) relates to the defendant's own belief (which can be said to be peculiarly within the defendant's knowledge), section 474.41(2), which requires evidence to be adduced to contradict evidence that the online recipient was represented to be under 18 years of age, will not necessarily be within the defendant's own knowledge.

As such, it may be inappropriate to impose an evidential burden on the defendant in this manner.
1.32 The committee intends to write to Senator Xenophon to seek further clarification as to how imposing an evidential burden on the defendant under proposed section 474.41(2) is compatible with the right to be presumed innocent under article 14 of the ICCPR.