2008 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 (Senator Bernardi) A Bill for an Act to amend the law relating to sexual offences against children, and for related purposes [Page Break] Part 1--Preliminary 1 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 2 Schedule 1--Amendme nts 3 Australian Crime Commission Act 2002 3 Crimes Act 1914 3 Criminal Code Act 1995 7 Surveillance Devices Act 2004 30 Telecommunications (Interception and Access) Act 1979 30 i Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 2 sexual offences against children, and for related 3 purposes 4 The Parliament of Australia enacts: 5 Part 1--Preliminary 6 7 1 Short title 8 This Act may be cited as the Crimes Legislation Amendment 9 (Enhanced Child Protection from Predatory Tourism Offences) Act 10 2008. 11 2 Commence ment 12 (1) Each provision of this Act specified in column 1 of the table 13 commences, or is taken to have commenced, in accordance with 14 column 2 of the table. Any other statement in column 2 has effect 15 according to its terms. Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 1 [Page Break] Commencement informati on Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The day on which this Act receives the item 1 Royal Assent. 3. Schedule 1, The 28th day after the day on which this Act item 2 to 22 receives the Royal Assent. 2 Note: This table relates only to the provisions of this Act as originally 3 passed by both Houses of the Parliament and assented to. It will not be 4 expanded to deal with provisions inserted in this Act after assent. 5 (2) Column 3 of the table contains additional information that is not 6 part of this Act. Information in this column may be added to or 7 edited in any published version of this Act. 8 3 Schedule(s) 9 Each Act that is specified in a Schedule to this Act is amended or 10 repealed as set out in the applicable items in the Schedule 11 concerned, and any other item in a Schedule to this Act has effect 12 according to its terms. 13 2 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 2 Schedule 1--Amendments 3 4 Australian Crime Commission Act 2002 5 1 Subsection 4(1) (paragraph (d) of the definition of serious 6 and organised crime) 7 After "Proceeds of Crime Act 2002,", insert "an offence against 8 section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the 9 Criminal Code,". 10 Crimes Act 1914 11 2 After section 9B 12 Insert: 13 10 Forfeiture of child abuse or child pornography material used in 14 commission of sexual offences against children 15 (1) If a court: 16 (a) convicts a person of an offence referred to in subsection (4); 17 or 18 (b) makes an order under section 19B in relation to a person 19 charged with such an offence; 20 the court must order the forfeiture to the Commonwealth of any of 21 the following that were used or otherwise involved in the 22 commission of the offence: 23 (c) child abuse material or child pornography material (within 24 the meaning of Part 10.6 of the Criminal Code); 25 (d) an article that contains such material. 26 Note: See sections 473.1 and 473.4 of the Criminal Code for the meanings 27 of child abuse material and child pornography material. 28 (2) If: 29 (a) a forfeiture application is made to a court (see section 11); 30 and 31 (b) the court is satisfied, on the balance of probabilities, that an 32 offence referred to in subsection (4) has been committed by a 33 person; Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 3 [Page Break] 1 the court must order the forfeiture to the Commonwealth of any of 2 the following that were used or otherwise involved in the 3 commission of the offence: 4 (c) child abuse material or child pornography material (within 5 the meaning of Part 10.6 of the Criminal Code); 6 (d) an article that contains such material. 7 Note: See sections 473.1 and 473.4 of the Criminal Code for the meanings 8 of child abuse material and child pornography material. 9 (3) A finding of the court for the purposes of subsection (2): 10 (a) need not be based on a finding that a particular person 11 committed any offence; and 12 (b) need not be based on a finding as to the commission of a 13 particular offence, and can be based on a finding that some 14 offence of a kind referred to in subsection (4) was committed. 15 (4) For the purposes of this section, the offences are: 16 (a) an offence against section 474.19, 474.20, 474.22, 474.23, 17 474.26 or 474.27 of the Criminal Code; and 18 (b) an offence against Division 272 or 273 of the Criminal Code. 19 11 Applications for an order for forfeiture under subsection 10(2) 20 (1) An application (a forfeiture application) for an order under 21 subsection 10(2) may be made by the Director of Public 22 Prosecutions or a constable to the Federal Court of Australia, the 23 Federal Magistrates Court or a court of a State or Territory. 24 (2) A forfeiture application must be accompanied by an affidavit 25 dealing with the matters referred to in subsection 10(2). 26 (3) A person who makes a forfeiture application must give written 27 notice of the application to: 28 (a) any person who claims ownership of, or a right of custody or 29 control over, material or an article covered by the 30 application; and 31 (b) any person whom the applicant reasonably believes may have 32 ownership of, or a right of custody or control over, material 33 or an article covered by the application. 34 (4) A court to which a forfeiture application is made: 4 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (a) may still make an order under subsection 10(2) if a person 2 entitled to be given notice of the application fails to appear at 3 the hearing of the application; and 4 (b) may, at any time after the making of the application, make 5 any interim orders that it considers appropriate and, in 6 particular, orders relating to the delivery or retention of 7 things pending the decision of the court on the application. 8 12 Effect of forfeiture under section 10 9 (1) Material or an article forfeited to the Commonwealth under 10 section 10 becomes the property of the Commonwealth. 11 (2) A constable may, without warrant, seize material or an article that 12 is forfeited to the Commonwealth under section 10. 13 (3) If material or an article is forfeited to the Commonwealth under 14 section 10: 15 (a) the material or article must be retained until the later of the 16 following times: 17 (i) 3 months after the article is forfeited; 18 (ii) the time when the Commissioner is satisfied that the 19 material will not be required in an investigation or 20 proceedings under a law of the Commonwealth or of a 21 State or Territory; and 22 (b) after the later of the times referred to in paragraph (a), the 23 Commissioner may deal with the material or article in any 24 way the Commissioner considers appropriate, including, but 25 not limited to, destroying the material or article. 26 12A Copies of articles forfeited unde r section 10 27 (1) This section applies to a person who is the owner of, or has a right 28 of custody or control over, an article that is forfeited to the 29 Commonwealth under section 10. 30 (2) If the article is in the custody, possession or control of a 31 Commonwealth officer, the officer must, on request by the person, 32 give the person a copy of so much of the article, or so much of the 33 information contained in the article, as: 34 (a) can readily be copied; and Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 5 [Page Break] 1 (b) does not constitute child abuse material or child pornography 2 material for the purposes of section 10. 3 (3) The Commonwealth officer need not comply with subsection (2) if 4 he or she believes on reasonable grounds that to do so might: 5 (a) endanger the safety of a person; or 6 (b) prejudice an investigation or prosecution. 7 12B Compensation for articles forfeited under section 10 8 (1) This section applies to a person: 9 (a) who is the owner of, or has a right of custody or control over, 10 an article that is forfeited to the Commonwealth under 11 section 10; and 12 (b) who is not: 13 (i) a person convicted of the offence to which the forfeiture 14 relates; or 15 (ii) a person in relation to whom an order was made under 16 section 19B in relation to the offence to which the 17 forfeiture relates. 18 (2) If the article is electronic equipment or a data storage device, the 19 Commonwealth is liable to pay a reasonable amount of 20 compensation to the person in relation to the replacement of the 21 article. 22 (3) If the Commonwealth and the person do not agree on the amount 23 of the compensation, the person may institute proceedings in a 24 court of competent jurisdiction for the recovery from the 25 Commonwealth of such reasonable amount of compensation as the 26 court determines. 27 (4) In this section: 28 data storage device means a thing containing, or designed to 29 contain, data for use by a computer. 30 3 Paragraph 15Y(1)(a) 31 Repeal the paragraph. 32 4 After paragraph 15Y(1)(caa) 6 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 Insert: 2 (cab) an offence against Division 272 of the Criminal Code (child 3 sex offences outside Australia); or 4 (cac) an offence against Division 273 of the Criminal Code 5 (offences involving child pornography material or child 6 abuse material outside Australia); or 7 5 Paragraph 15Y(1)(e) 8 Omit "paragraph (a), (b), (c), (caa) or (d)", substitute "paragraph (b), 9 (c), (caa), (cab), (cac) or (d)". 10 6 Paragraph 15Y(1)(f) 11 Omit "paragraph (a), (b), (c), (caa), (d) or (e)", substitute 12 "paragraph (b), (c), (caa), (cab), (cac), (d) or (e)". 13 7 Section 15YT 14 Repeal the section, substitute: 15 15YT Video link evidence provisions relating to child sex offences 16 outside Australia unaffected 17 Nothing in this Part affects the operation of: 18 (a) Subdivision D of Division 272 of the Criminal Code (child 19 sex offences outside Australia--video link evidence); or 20 (b) Subdivision D of Division 273 of the Criminal Code 21 (offences involving child pornography material or child 22 abuse material outside Australia--video link evidence). 23 8 Part IIIA 24 Repeal the Part. 25 Criminal Code Act 1995 26 9 At the end of Chapter 8 of the Criminal Code 27 Add: Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 7 [Page Break] 1 Division 272--Child sex offences outside Australia 2 Subdivision A--Preliminary 3 272.1 Definitions 4 In this Division: 5 act of indecency has the meaning given by section 272.2. 6 induce means induce by threats, promises or otherwise. 7 offence, in the case of a reference to an offence against this 8 Division or against a particular provision of it, has a meaning 9 affected by section 272.4. 10 sexual intercourse has the meaning given by section 272.3. 11 272.2 Meaning of act of indecency 12 (1) In this Code, act of indecency means an act that: 13 (a) is of a sexual nature; and 14 (b) involves the human body, or bodily actions or functions; and 15 (c) is so unbecoming or offensive that it amounts to a gross 16 breach of ordinary contemporary standards of decency and 17 propriety in the Australian community. 18 (2) To avoid doubt, act of indecency includes an indecent assault. 19 272.3 Meaning of sexual intercourse 20 (1) In this Code, sexual intercourse means: 21 (a) the penetration, to any extent, of the vagina or anus of a 22 person by any part of the body of another person; or 23 (b) the penetration, to any extent, of the vagina or anus of a 24 person, carried out by another person by an object; or 25 (c) fellatio; or 26 (d) cunnilingus; or 27 (e) the continuation of any activity mentioned in paragraph (a), 28 (b), (c) or (d). 8 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (2) In this Code, sexual intercourse does not include an act of 2 penetration that: 3 (a) is carried out for a proper medical or hygienic purpose; or 4 (b) is carried out for a proper law enforcement purpose. 5 (3) For the purposes of this section, vagina includes: 6 (a) any part of a female person's genitalia; and 7 (b) a surgically constructed vagina. 8 272.4 Extension of criminal responsibility 9 (1) A reference in this Division (except section 272.16) to an offence 10 against this Division or against a particular provision of it includes: 11 (a) a reference to: 12 (i) an offence against section 6 of the Crimes Act 1914; or 13 (ii) an offence against section 11.1, 11.5 or 272.16 of this 14 Code; 15 that relates to an offence against this Division or against that 16 provision of it; and 17 (b) a reference to an offence against this Division, or against that 18 provision of it, because of section 11.2 or 11.3. 19 (2) A reference in section 272.16 to an offence against this Division or 20 against a particular provision of it does not include a reference to 21 such an offence because of section 11.2. 22 (3) Section 11.1 does not apply to an offence against section 272.11, 23 272.12 or 272.17. 24 (4) Section 11.4 does not apply to an offence against this Division. 25 (5) Section 11.5 does not apply to an offence against section 272.16. 26 272.5 Who can be prosecuted for an offence committed overseas 27 A person must not be charged with an offence against this Division 28 that the person allegedly committed outside Australia unless, at the 29 time of the offence, the person was: 30 (a) an Australian citizen; or 31 (b) a resident of Australia; or 32 (c) a body corporate incorporated by or under a law of the 33 Commonwealth or of a State or Territory; or Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 9 [Page Break] 1 (d) any other body corporate that carries on its activities 2 principally in Australia. 3 272.6 Saving of other laws 4 This Division is not intended to exclude or limit the operation of 5 any other law of the Commonwealth or any law of a State or 6 Territory. 7 Subdivision B--Sexual offences against children overseas 8 272.7 Sexual intercourse with person under 16 9 (1) A person commits an offence if: 10 (a) the person engages in sexual intercourse with another person; 11 and 12 (b) the other person is under 16; and 13 (c) the sexual intercourse is engaged in outside Australia. 14 Penalty: Imprisonment for 17 years. 15 (2) Absolute liability applies to paragraphs (1)(b) and (c). 16 Note 1: For absolute liability, see section 6.2. 17 Note 2: For a defence based on belief about age, see section 272.13. 18 272.8 Inducing pe rson unde r 16 to engage in sexual intercourse 19 (1) A person (the first person) commits an offence if: 20 (a) the first person induces a second person to engage in sexual 21 intercourse with a third person in the presence of the first 22 person; and 23 (b) the second person is under 16; and 24 (c) the sexual intercourse is engaged in outside Australia. 25 Penalty: Imprisonment for 17 years. 26 (2) Absolute liability applies to paragraphs (1)(b) and (c). 27 Note 1: For absolute liability, see section 6.2. 28 Note 2: For a defence based on belief about age, see section 272.13. 10 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 272.9 Sexual conduct involving person under 16 2 (1) A person commits an offence if: 3 (a) the person commits an act of indecency on another person; 4 and 5 (b) the other person is under 16; and 6 (c) the act is committed outside Australia. 7 Penalty: Imprisonment for 15 years. 8 (2) A person commits an offence if: 9 (a) the person submits to an act of indecency committed by 10 another person; and 11 (b) the other person is under 16; and 12 (c) the act is committed outside Australia. 13 Penalty: Imprisonment for 15 years. 14 (3) A person (the first person) commits an offence if: 15 (a) the first person commits an act of indecency; and 16 (b) the act of indecency is committed in the presence of another 17 person; and 18 (c) the first person intends to derive gratification from the other 19 person's presence during the act; and 20 (d) the other person is under 16; and 21 (e) the act is committed outside Australia. 22 Penalty: Imprisonment for 15 years. 23 (4) A person (the first person) commits an offence if: 24 (a) the first person submits to an act of indecency committed by 25 a second person; and 26 (b) the act of indecency is committed in the presence of a third 27 person; and 28 (c) the first person intends to derive gratification from the third 29 person's presence during the act; and 30 (d) the third person is under 16; and 31 (e) the act is committed outside Australia. 32 Penalty: Imprisonment for 15 years. 33 (5) A person (the first person) commits an offence if: Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 11 [Page Break] 1 (a) the first person engages in sexual intercourse with a second 2 person; and 3 (b) the sexual intercourse is engaged in in the presence of a third 4 person; and 5 (c) the first person intends to derive gratification from the third 6 person's presence during the sexual intercourse; and 7 (d) the third person is under 16; and 8 (e) the sexual intercourse is engaged in outside Australia. 9 Penalty: Imprisonment for 15 years. 10 (6) Absolute liability applies to paragraphs (1)(b) and (c), (2)(b) and 11 (c), (3)(d) and (e), (4)(d) and (e) and (5)(d) and (e). 12 Note 1: For absolute liability, see section 6.2. 13 Note 2: For a defence based on belief about age, see section 272.13. 14 (7) For the purposes of an offence against subsection (1), (2), (3) or 15 (4), absolute liability applies to the physical element of 16 circumstance that the act of indecency referred to in that subsection 17 is in fact an act of indecency. 18 Note: For absolute liability, see section 6.2. 19 272.10 Inducing pe rson unde r 16 to be involved in sexual conduct 20 (1) A person (the first person) commits an offence if: 21 (a) the first person induces a second person to commit, to submit 22 to, or to be present while a third person commits, an act of 23 indecency in the presence of the first person; and 24 (b) the second person is under 16; and 25 (c) the act is committed: 26 (i) outside Australia; and 27 (ii) by or on a person other than the first person. 28 Penalty: Imprisonment for 15 years. 29 (2) A person (the first person) commits an offence if: 30 (a) the first person induces a second person to be present while a 31 third and fourth person engage in sexual intercourse in the 32 presence of the first and second persons; and 33 (b) the second person is under 16; and 12 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (c) the sexual intercourse is engaged in outside Australia. 2 Penalty: Imprisonment for 15 years. 3 (3) Absolute liability applies to paragraph (1)(b), 4 subparagraph (1)(c)(i) and paragraphs (2)(b) and (c). 5 Note 1: For absolute liability, see section 6.2. 6 Note 2: For a defence based on belief about age, see section 272.13. 7 (4) For the purposes of an offence against subsection (1), absolute 8 liability applies to the physical element of circumstance of the 9 offence that the act of indecency referred to in that subsection is in 10 fact an act of indecency. 11 Note: For absolute liability, see section 6.2. 12 272.11 Engaging in conduct to procure persons unde r 16 years of 13 age 14 (1) A person (the first person) commits an offence if: 15 (a) the first person engages in conduct in relation to a second 16 person; and 17 (b) the first person does so with the intention of procuring the 18 second person: 19 (i) to engage in, or submit to, sexual activity with the first 20 person outside Australia; or 21 (ii) to be present while the first person engages in, or 22 submits to, sexual activity outside Australia; and 23 (c) the second person is someone: 24 (i) who is under 16; or 25 (ii) who the first person believes to be under 16; and 26 (d) any of the following apply: 27 (i) the conduct referred to in paragraph (a) occurs wholly or 28 partly outside Australia; 29 (ii) the second person is outside Australia when the conduct 30 referred to in paragraph (a) occurs; 31 (iii) the conduct referred to in paragraph (a) occurs wholly in 32 Australia and the second person is in Australia when 33 that conduct occurs. 34 Penalty: Imprisonment for 15 years. Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 13 [Page Break] 1 (2) A person (the first person) commits an offence if: 2 (a) the first person engages in conduct in relation to a second 3 person; and 4 (b) the first person does so with the intention of procuring the 5 second person: 6 (i) to engage in, or submit to, sexual activity with a third 7 person outside Australia; or 8 (ii) to be present with the first person while a third person 9 engages in, or submits to, sexual activity (other than 10 with the first or second person) outside Australia; and 11 (c) the second person is someone: 12 (i) who is under 16; or 13 (ii) who the first person believes to be under 16; and 14 (d) any of the following apply: 15 (i) the conduct referred to in paragraph (a) occurs wholly or 16 partly outside Australia; 17 (ii) the second person is outside Australia when the conduct 18 referred to in paragraph (a) occurs; 19 (iii) the conduct referred to in paragraph (a) occurs wholly in 20 Australia and the second person is in Australia when 21 that conduct occurs. 22 Penalty: Imprisonment for 15 years. 23 (3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) 24 and paragraphs (1)(d) and (2)(d). 25 Note 1: For absolute liability, see section 6.2. 26 Note 2: For a defence based on belief about age, see section 272.13. 27 (4) A person may be found guilty of an offence against subsection (1) 28 or (2) even if it is impossible for the sexual activity referred to in 29 that subsection to take place. 30 (5) For the purposes of subsection (1) or (2), it does not matter that the 31 second person is a fictitious person represented to the first person 32 as a real person. 14 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 272.12 Engaging in conduct to "groom" persons under 16 years of 2 age 3 (1) A person (the first person) commits an offence if: 4 (a) the first person engages in conduct in relation to a second 5 person; and 6 (b) the first person does so with the intention of making it easier 7 to procure the second person: 8 (i) to engage in, or submit to, sexual activity with the first 9 person outside Australia; or 10 (ii) to be present while the first person engages in, or 11 submits to, sexual activity outside Australia; and 12 (c) the second person is someone: 13 (i) who is under 16; or 14 (ii) who the first person believes to be under 16; and 15 (d) any of the following apply: 16 (i) the conduct referred to in paragraph (a) occurs wholly or 17 partly outside Australia; 18 (ii) the second person is outside Australia when the conduct 19 referred to in paragraph (a) occurs; 20 (iii) the conduct referred to in paragraph (a) occurs wholly in 21 Australia and the second person is in Australia when 22 that conduct occurs. 23 Penalty: Imprisonment for 12 years. 24 (2) A person (the first person) commits an offence if: 25 (a) the first person engages in conduct in relation to a second 26 person; and 27 (b) the first person does so with the intention of making it easier 28 to procure the second person: 29 (i) to engage in, or submit to, sexual activity with a third 30 person outside Australia; or 31 (ii) to be present with the first person while a third person 32 engages in, or submits to, sexual activity (other than 33 with the first or second person) outside Australia; and 34 (c) the second person is someone: 35 (i) who is under 16; or 36 (ii) who the first person believes to be under 16; and 37 (d) any of the following apply: Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 15 [Page Break] 1 (i) the conduct referred to in paragraph (a) occurs wholly or 2 partly outside Australia; 3 (ii) the second person is outside Australia when the conduct 4 referred to in paragraph (a) occurs; 5 (iii) the conduct referred to in paragraph (a) occurs wholly in 6 Australia and the second person is in Australia when 7 that conduct occurs. 8 Penalty: Imprisonment for 12 years. 9 (3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) 10 and paragraphs (1)(d) and (2)(d). 11 Note 1: For absolute liability, see section 6.2. 12 Note 2: For a defence based on belief about age, see section 272.13. 13 (4) A person may be found guilty of an offence against subsection (1) 14 or (2) even if it is impossible for the sexual activity referred to in 15 that subsection to take place. 16 (5) For the purposes of subsection (1) or (2), it does not matter that the 17 second person is a fictitious person represented to the first person 18 as a real person. 19 272.13 Defence based on belief about age 20 (1) Section 272.7, 272.8, 272.9 or 272.10 does not apply if, at the time 21 of the sexual intercourse or act of indecency, the defendant 22 believed that the person referred to in that section as being under 23 16 was 16 or over. 24 Note: A defendant bears an evidential burden in relation to the matter in this 25 subsection (see subsection 13.3(3)). 26 (2) Section 272.11 or 272.12 does not apply if: 27 (a) at the time the defendant engaged in the conduct constituting 28 the offence, he or she believed that the person referred to in 29 that section as being under 16 was 16 or over; and 30 (b) the conduct constituting the offence was consensual. 31 Note: A defendant bears an evidential burden in relation to the matter in this 32 subsection (see subsection 13.3(3)). 16 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (3) In determining whether the defendant had the belief mentioned in 2 subsection (1) or (2), the jury may take into account whether the 3 alleged belief was reasonable in the circumstances. 4 272.14 Defence based on valid and genuine marriage 5 (1) Section 272.7 or 272.9 does not apply if the defendant proves that: 6 (a) at the time of the sexual intercourse or act of indecency, there 7 existed between the defendant and the person referred to in 8 that section as being under 16 a marriage that was valid, or 9 recognised as valid, under the law of: 10 (i) the place where the marriage was solemnised; or 11 (ii) the place where the offence was allegedly committed; or 12 (iii) the place of the defendant's residence or domicile; and 13 (b) when it was solemnised, the marriage was genuine; and 14 (c) the conduct constituting the offence was consensual. 15 Note: A defendant bears a legal burden in relation to the matters in this 16 subsection (see section 13.4). 17 (2) Subsection 272.11(1) or 272.12(1) does not apply if the defendant 18 proves that: 19 (a) at the time he or she allegedly engaged in the conduct 20 constituting the offence against that subsection, there existed 21 between the defendant and the person referred to in that 22 subsection as being under 16 a marriage that was valid, or 23 recognised as valid, under the law of: 24 (i) the place where the marriage was solemnised; or 25 (ii) the place where the offence was allegedly committed; or 26 (iii) the place of the defendant's residence or domicile; and 27 (b) when it was solemnised, the marriage was genuine. 28 Note: A defendant bears a legal burden in relation to the matters in this 29 subsection (see section 13.4). 30 Subdivision C--Offences of benefiting from, encouraging or 31 preparing to commit sexual offences against children 32 overseas 33 272.15 Benefiting from offence against this Division 34 (1) A person commits an offence if: Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 17 [Page Break] 1 (a) the person engages in conduct; and 2 (b) the person does so with the intention of benefiting from 3 conduct of a kind that would constitute an offence against 4 this Division; and 5 (c) the conduct is reasonably capable of resulting in the person 6 benefiting from conduct of a kind that would constitute an 7 offence against this Division. 8 Penalty: Imprisonment for 17 years. 9 (2) Subsection (1) applies: 10 (a) whether the conduct is engaged in within or outside 11 Australia; and 12 (b) whether or not the person intends to benefit financially from 13 conduct of a kind that would constitute an offence against 14 this Division; and 15 (c) whether or not conduct of a kind that would constitute an 16 offence against this Division in fact occurs or has occurred. 17 (3) Absolute liability applies to paragraph (1)(c). 18 Note: For absolute liability, see section 6.2. 19 272.16 Encouraging offence against this Division 20 (1) A person commits an offence if: 21 (a) the person engages in conduct; and 22 (b) the person does so with the intention of encouraging conduct 23 of a kind that would constitute an offence against this 24 Division (other than this section or section 272.17); and 25 (c) the conduct is reasonably capable of encouraging conduct of 26 a kind that would constitute an offence against this Division 27 (other than this section or section 272.17). 28 Penalty: Imprisonment for 17 years. 29 Note: These are examples of conduct covered by paragraph (1)(c): 30 (a) assisting a person to travel outside Australia in order to commit 31 an act that would constitute an offence against Subdivision B; 32 (b) advertising an offer to assist a person, or an arrangement for 33 assisting a person, as mentioned in paragraph (a). 34 (2) Subsection (1) applies: 18 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (a) whether the conduct is engaged in within or outside 2 Australia; and 3 (b) whether or not conduct of a kind that would constitute an 4 offence against this Division in fact occurs or has occurred. 5 (3) Absolute liability applies to paragraph (1)(c). 6 Note: For absolute liability, see section 6.2. 7 (4) In this section, encourage means: 8 (a) encourage, incite to or urge, by any means whatever, 9 (including by a written, electronic or other form of 10 communication); or 11 (b) aid, facilitate or contribute to, in any way whatever. 12 272.17 Preparing to commit offence against this Division 13 (1) A person commits an offence if the person does any act in 14 preparation for, or planning, conduct of a kind that would 15 constitute an offence against section 272.7, 272.8, or 272.15. 16 Penalty: Imprisonment for 17 years. 17 Note: An example of an act that would constitute an offence against 18 subsection (1) is booking an airline ticket to travel outside Australia in 19 preparation for engaging in sexual intercourse with a person who is 20 under 16 while outside Australia. 21 (2) A person commits an offence if the person does any act in 22 preparation for, or planning, conduct of a kind that would 23 constitute an offence against section 272.9 or 272.10. 24 Penalty: Imprisonment for 15 years. 25 Note: An example of an act that would constitute an offence against 26 subsection (2) is booking an airline ticket to travel outside Australia in 27 planning to commit an act of indecency on a person who is under 16 28 while outside Australia. 29 (3) A person commits an offence under subsection (1) or (2) even if: 30 (a) conduct of a kind that would constitute the offence referred 31 to in that subsection does not occur; or 32 (b) the person's act is not done in preparation for, or planning, 33 specific conduct of a kind that would constitute the offence 34 referred to in that subsection; or Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 19 [Page Break] 1 (c) the person's act is done in preparation for, or planning, more 2 than one course of conduct of a kind that would constitute the 3 offence referred to in that subsection. 4 Subdivision D--Video link evidence 5 272.18 When court may take evidence by video link 6 In a proceeding for an offence against this Division, the court may, 7 on application by a party to the proceeding, direct that a witness 8 give evidence by video link if: 9 (a) the witness will give the evidence from outside Australia; and 10 (b) the witness is not a defendant in the proceeding; and 11 (c) the facilities required by section 272.19 are available or can 12 reasonably be made available; and 13 (d) the court is satisfied that attendance of the witness at the 14 court to give the evidence would: 15 (i) cause unreasonable expense or inconvenience; or 16 (ii) cause the witness psychological harm or unreasonable 17 distress; or 18 (iii) cause the witness to become so intimidated or distressed 19 that his or her reliability as a witness would be 20 significantly reduced; and 21 (e) the court is satisfied that it is consistent with the interests of 22 justice that the evidence be taken by video link. 23 272.19 Technical require ments for video link 24 (1) A witness can give evidence under a direction only if: 25 (a) the courtroom or other place in Australia where the court is 26 sitting (the Australian location); and 27 (b) the place where the evidence is given (the overseas location); 28 are equipped with video facilities that: 29 (c) enable appropriate persons at the Australian location to see 30 and hear the witness give the evidence; and 31 (d) enable appropriate persons at the overseas location to see and 32 hear appropriate persons at the Australian location. 33 (2) In subsection (1): 20 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 appropriate persons means such persons as the court considers 2 appropriate. 3 272.20 Application of laws about witnesses 4 A person who gives evidence under a direction is taken to give it at 5 the courtroom or other place in Australia where the court is sitting. 6 Note: This section has effect, for example, for the purposes of laws relating 7 to evidence, procedure, contempt of court and perjury. 8 272.21 Administration of oaths and affirmations 9 An oath or affirmation to be sworn or made by a witness who is to 10 give evidence under a direction may be administered either: 11 (a) by means of the video link, in as nearly as practicable the 12 same way as if the witness were to give the evidence at the 13 courtroom or other place in Australia where the court is 14 sitting; or 15 (b) as follows: 16 (i) on behalf of the court and as directed by it; 17 (ii) by a person (whether an Australian official or not) 18 authorised by the court; 19 (iii) at the place where the witness is to give the evidence. 20 272.22 Expenses 21 A court may make such orders as are just for payment of expenses 22 incurred in connection with giving evidence under a direction by 23 the court under this Subdivision. 24 272.23 Other laws about foreign evidence not affected 25 This Subdivision does not prevent any other law about taking 26 evidence of a witness outside Australia from applying for the 27 purposes of a proceeding for an offence against this Division. Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 21 [Page Break] 1 Subdivision E--Other rules about conduct of trials 2 272.24 Evidence relating to a person's age 3 (1) For the purposes of this Division, evidence that a person was 4 represented to the defendant as being under or of a particular age 5 is, in the absence of evidence to the contrary, proof that the 6 defendant believed that person to be under or of that age. 7 (2) In determining for the purposes of this Division whether a person 8 is under 16, or was under 16 at a particular time, or how old a 9 person is or was at a particular time, a jury or court may treat any 10 of the following as admissible evidence: 11 (a) the person's appearance; 12 (b) medical or other scientific opinion; 13 (c) a document that is or appears to be an official or medical 14 record from a country outside Australia; 15 (d) a document that is or appears to be a copy of such a record. 16 (3) Subsection (2) does not make any other kind of evidence 17 inadmissible, and does not affect a prosecutor's duty to do all he or 18 she can to adduce the best possible evidence for determining the 19 question. 20 (4) If, on a trial for an offence against this Division, evidence may be 21 treated as admissible because of subsection (2), the court must 22 warn the jury that it must be satisfied beyond reasonable doubt in 23 determining the question. 24 272.25 Alte rnative verdicts 25 (1) If, on a trial for an offence against section 272.7, the jury is not 26 satisfied that the defendant is guilty of the offence, but is satisfied 27 that he or she is guilty of an offence against section 272.9, it may 28 find the defendant not guilty of the offence against section 272.7 29 but guilty of the offence against section 272.9. 30 (2) If, on a trial for an offence against section 272.8, the jury is not 31 satisfied that the defendant is guilty of the offence, but is satisfied 32 that he or she is guilty of an offence against subsection 272.10(1), 33 it may find the defendant not guilty of the offence against 22 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 section 272.8 but guilty of the offence against subsection 2 272.10(1). 3 272.26 Double jeopardy 4 If a person has been convicted or acquitted in a country outside 5 Australia of an offence against the law of that country in respect of 6 any conduct, the person cannot be convicted of an offence against 7 this Division in respect of that conduct. 8 272.27 Sentencing 9 (1) In determining the sentence to be passed, or the order to be made, 10 in respect of a person for an offence against Subdivision B, the 11 court must take into account the age and maturity of the person in 12 relation to whom the offence was committed, so far as these 13 matters are relevant and known to the court. 14 (2) The matters mentioned in subsection (1) are in addition to any 15 other matters the court must take into account (for example, the 16 matters mentioned in subsection 16A(2) of the Crimes Act 1914). 17 Division 273--Offences involving child pornography 18 material or child abuse material outside Australia 19 Subdivision A--Preliminary 20 273.1 Definitions 21 (1) Subject to subsections (2) and (3), an expression used in this 22 Division that is defined in Part 10.6 has the same meaning in this 23 Division as it has in that Part. 24 Note: These expressions include child abuse material and child 25 pornography material. 26 (2) A reference in this Division to a person having possession or 27 control of material includes a reference to the person: 28 (a) having possession of a computer or data storage device that 29 holds or contains the material; or 30 (b) having possession of a document in which the material is 31 recorded; or Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 23 [Page Break] 1 (c) having control of material held in a computer that is in the 2 possession of another person (whether inside or outside 3 Australia). 4 (3) A reference in this Division to a person producing, distributing or 5 obtaining material includes a reference to the person: 6 (a) producing, distributing or obtaining material held or 7 contained in a computer or data storage device; or 8 (b) producing, distributing or obtaining a document in which the 9 material is recorded. 10 (4) Section 473.4 applies in relation to this Division as if the reference 11 in that section to Part 10.6 were a reference to this Division. 12 Note: Section 473.4 sets out matters that may be taken into account in 13 deciding whether particular material is offensive. 14 273.2 Who can be prosecuted for an offence committed overseas 15 A person must not be charged with an offence against this Division 16 that the person allegedly committed outside Australia unless, at the 17 time of the offence, the person was: 18 (a) an Australian citizen; or 19 (b) a resident of Australia; or 20 (c) a body corporate incorporated by or under a law of the 21 Commonwealth or of a State or Territory; or 22 (d) any other body corporate that carries on its activities 23 principally in Australia. 24 273.3 Double jeopardy 25 If a person has been convicted or acquitted in a country outside 26 Australia of an offence against the law of that country in respect of 27 any conduct, the person cannot be convicted of an offence against 28 this Division in respect of that conduct. 29 273.4 Saving of other laws 30 This Division is not intended to exclude or limit the operation of 31 any other law of the Commonwealth or any law of a State or 32 Territory. 24 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 Subdivision B--Offences committed overseas involving child 2 pornography material or child abuse material 3 273.5 Possessing, controlling, producing, distributing or obtaining 4 child pornography mate rial outside Australia 5 (1) A person commits an offence if: 6 (a) the person: 7 (i) has possession or control of material; or 8 (ii) produces, distributes or obtains material; or 9 (iii) facilitates the production or distribution of material; and 10 (b) the material is child pornography material; and 11 (c) the conduct referred to in paragraph (a) occurs outside 12 Australia. 13 Penalty: Imprisonment for 10 years. 14 (2) Absolute liability applies to paragraph (1)(c). 15 Note: For absolute liability, see section 6.2. 16 273.6 Possessing, controlling, producing, distributing or obtaining 17 child abuse material outside Australia 18 (1) A person commits an offence if: 19 (a) the person: 20 (i) has possession or control of material; or 21 (ii) produces, distributes or obtains material; or 22 (iii) facilitates the production or distribution of material; and 23 (b) the material is child abuse material; and 24 (c) the conduct referred to in paragraph (a) occurs outside 25 Australia. 26 Penalty: Imprisonment for 10 years. 27 (2) Absolute liability applies to paragraph (1)(c). 28 Note: For absolute liability, see section 6.2. Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 25 [Page Break] 1 Subdivision C--Defences 2 273.7 Defences to offences against this Division 3 (1) A person is not criminally responsible for an offence against 4 section 273.5 or 273.6 because of engaging in particular conduct if 5 the conduct: 6 (a) is of public benefit; and 7 (b) does not extend beyond what is of public benefit. 8 In determining whether the person is, under this subsection, not 9 criminally responsible for the offence, the question whether the 10 conduct is of public benefit is a question of fact and the person's 11 motives in engaging in the conduct are irrelevant. 12 Note: A defendant bears an evidential burden in relation to the matter in this 13 subsection (see subsection 13.3(3)). 14 (2) For the purposes of subsection (1), conduct is of public benefit if, 15 and only if, the conduct is necessary for or of assistance in: 16 (a) enforcing a law of the Commonwealth, a State or Territory, 17 or a foreign country; or 18 (b) monitoring compliance with, or investigating a contravention 19 of, a law of the Commonwealth, a State or Territory or a 20 foreign country; or 21 (c) the administration of justice (whether within or outside 22 Australia); or 23 (d) conducting scientific, medical or educational research. 24 (3) Paragraph (2)(d) only applies if the person's conduct was, in all the 25 circumstances, reasonable having regard to the purpose mentioned 26 in that paragraph. 27 (4) A person is not criminally responsible for an offence against 28 section 273.5 or 273.6 if: 29 (a) the person is, at the time of the offence: 30 (i) a law enforcement officer; or 31 (ii) an intelligence or security officer; or 32 (iii) an officer or employee of the government of a foreign 33 country performing similar duties to an intelligence or 34 security officer; and 35 (b) the person is acting in the course of his or her duties; and 26 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (c) the conduct of the person is reasonable in the circumstances 2 for the purpose of performing that duty. 3 Note: A defendant bears an evidential burden in relation to the matter in this 4 subsection (see subsection 13.3(3)). 5 (5) A person is not criminally responsible for an offence against 6 section 273.5 or 273.6 if the person engages in the conduct in good 7 faith for the sole purpose of: 8 (a) assisting the Australian Communications and Media 9 Authority to detect: 10 (i) prohibited content (within the meaning of Schedule 7 to 11 the Broadcasting Services Act 1992); or 12 (ii) potential prohibited content (within the meaning of that 13 Schedule); 14 in the performance of the Authority's functions under 15 Schedule 5 or Schedule 7 to that Act; or 16 (b) manufacturing or developing, or updating, content filtering 17 technology (including software) in accordance with: 18 (i) a recognised alternative access-prevention arrangement 19 (within the meaning of clause 40 of Schedule 5 to the 20 Broadcasting Services Act 1992); or 21 (ii) a designated alternative access-prevention arrangement 22 (within the meaning of clause 60 of that Schedule). 23 Note: A defendant bears an evidential burden in relation to the matter in this 24 subsection (see subsection 13.3(3)). 25 Subdivision D--Video link evidence 26 273.8 When court may take evidence by video link 27 In a proceeding for an offence against this Division, the court may, 28 on application by a party to the proceeding, direct that a witness 29 give evidence by video link if: 30 (a) the witness will give the evidence from outside Australia; and 31 (b) the witness is not a defendant in the proceeding; and 32 (c) the facilities required by section 273.9 are available or can 33 reasonably be made available; and 34 (d) the court is satisfied that attendance of the witness at the 35 court to give the evidence would: 36 (i) cause unreasonable expense or inconvenience; or Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 27 [Page Break] 1 (ii) cause the witness psychological harm or unreasonable 2 distress; or 3 (iii) cause the witness to become so intimidated or distressed 4 that his or her reliability as a witness would be 5 significantly reduced; and 6 (e) the court is satisfied that it is consistent with the interests of 7 justice that the evidence be taken by video link. 8 273.9 Technical require ments for video link 9 (1) A witness can give evidence under a direction only if: 10 (a) the courtroom or other place in Australia where the court is 11 sitting (the Australian location); and 12 (b) the place where the evidence is given (the overseas location); 13 are equipped with video facilities that: 14 (c) enable appropriate persons at the Australian location to see 15 and hear the witness give the evidence; and 16 (d) enable appropriate persons at the overseas location to see and 17 hear appropriate persons at the Australian location. 18 (2) In subsection (1): 19 appropriate persons means such persons as the court considers 20 appropriate. 21 273.10 Application of laws about witnesses 22 A person who gives evidence under a direction is taken to give it at 23 the courtroom or other place in Australia where the court is sitting. 24 Note: This section has effect, for example, for the purposes of laws relating 25 to evidence, procedure, contempt of court and perjury. 26 273.11 Administration of oaths and affirmations 27 An oath or affirmation to be sworn or made by a witness who is to 28 give evidence under a direction may be administered either: 29 (a) by means of the video link, in as nearly as practicable the 30 same way as if the witness were to give the evidence at the 31 courtroom or other place in Australia where the court is 32 sitting; or 28 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 (b) as follows: 2 (i) on behalf of the court and as directed by it; 3 (ii) by a person (whether an Australian official or not) 4 authorised by the court; 5 (iii) at the place where the witness is to give the evidence. 6 273.12 Expenses 7 A court may make such orders as are just for payment of expenses 8 incurred in connection with giving evidence under a direction by 9 the court under this Subdivision. 10 273.13 Other laws about foreign evidence not affected 11 This Subdivision does not prevent any other law about taking 12 evidence of a witness outside Australia from applying for the 13 purposes of a proceeding for an offence against this Division. 14 10 Paragraphs 474.27(1)(b), (2)(b) and (3)(b) of the Criminal 15 Code 16 Repeal the paragraphs. 17 11 Subsections 474.27(4) and (5) of the Criminal Code 18 Repeal the subsections. 19 12 Subsection 474.28(11) of the Criminal Code 20 Repeal the subsection. 21 13 Dictionary in the Criminal Code 22 Insert: 23 act of indecency has the meaning given by section 272.2. 24 14 Dictionary in the Criminal Code 25 Insert: 26 procure a person, in relation to sexual activity, includes: 27 (a) encourage, entice or recruit the person in relation to that 28 activity; or Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 29 [Page Break] 1 (b) induce the person (whether by threats, promises or otherwise) 2 in relation to that activity. 3 15 Dictionary in the Criminal Code 4 Insert: 5 sexual activity means: 6 (a) sexual intercourse; or 7 (b) an act of indecency; or 8 (c) any other activity of a sexual or indecent nature that involves 9 the human body, or bodily actions or functions (whether or 10 not that activity involves physical contact between people). 11 16 Dictionary in the Criminal Code 12 Insert: 13 sexual intercourse has the meaning given by section 272.3. 14 Surveillance Devices Act 2004 15 17 Subparagraph 30(1)(a)(iii) 16 Repeal the subparagraph. 17 18 Subparagraph 30(1)(a)(viii) 18 Omit "or 270", substitute ", 270, 272 or 273". 19 Telecommunications (Interception and Access) Act 1979 20 19 Subsection 5D(2A) 21 Repeal the subsection. 22 20 Subparagraph 5D(3)(d)(xi) 23 Omit "(including an offence against Part IIIA of the Crimes Act 1914)". 24 21 Subsection 5D(3B) 25 Repeal the subsection. 26 22 Before subsection 5D(4) 30 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences) Bill 2008 No. , 2008 [Page Break] 1 Insert: 2 Sexual offences against children and offences involving child 3 pornography 4 (3C) An offence is also a serious offence if: 5 (a) it is an offence against Division 272 or 273, or 6 section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of 7 the Criminal Code; or 8 (b) the particular conduct constituting the offence otherwise 9 involved, involves or would involve: 10 (i) the production, publication, possession, supply or sale 11 of, or other dealing in, child pornography; or 12 (ii) consenting to or procuring the employment of a child, or 13 employing a child, in connection with child 14 pornography. 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