CRIMES LEGISLATION AMENDMENT (SEXUAL OFFENCES AGAINST CHILDREN) BILL 2010

i Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. ,

2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments relating to sexual offences against

children

Part 1--Amendments relating to child sex offences outside

Australia

Crimes Act 1914

Criminal Code Act 1995

Part 2--Amendments relating to child sex offences involving

postal or similar services, or carriage services

Criminal Code Act 1995

Part 3--Consequential amendments

Australian Crime Commission Act 2002

Crimes Act 1914

Surveillance Devices Act 2004

Telecommunications (Interception and Access) Act 1979

Schedule 2--Forfeiture of child sex material

Crimes Act 1914

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

A Bill for an Act to amend the criminal law, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Sexual Offences Against Children) Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

The 28th day after this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments relating to sexual offences against children Schedule 1

Amendments relating to child sex offences outside Australia Part 1

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Schedule 1--Amendments relating to sexual

offences against children

Part 1--Amendments relating to child sex offences

outside Australia

Crimes Act 1914

1 Part IIIA

Repeal the Part.

Criminal Code Act 1995

2 Subsection 7.3(8) of the Criminal Code

Omit "section", substitute "Code".

3 Paragraph 102.1(1A)(c) of the Criminal Code

Omit "(within the meaning of section 7.3)".

4 After Division 271 of the Criminal Code

Insert:

Division 272--Child sex offences outside Australia

Subdivision A--Preliminary

272.1 Definitions

In this Division:

cause a person to engage in sexual intercourse or other sexual

activity has the meaning given by section 272.2.

offence, in the case of a reference to an offence against this

Division or against a particular provision of it, has a meaning

affected by section 272.5.

position of trust or authority has the meaning given by subsection

272.3(1).

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sexual intercourse has the meaning given by section 272.4.

272.2 When conduct causes a person to engage in sexual intercourse

or other sexual activity

For the purposes of this Division, a person's conduct causes

another person to engage in sexual intercourse or other sexual

activity if it substantially contributes to the other person engaging

in sexual intercourse or other sexual activity.

272.3 Meaning of position of trust or authority

(1) For the purposes of this Code, a person is in a position of trust or

authority in relation to another person if:

(a) the person is the other person's parent, step-parent, or

grandparent; or

(b) the person is the other person's foster parent, guardian or

carer; or

person; or

(d) the person is a religious official or spiritual leader (however

described) providing pastoral care or religious instruction to

the other person; or

(e) the person is the other person's sports coach; or

(f) the person is a medical practitioner, nurse, psychologist,

other health professional (however described), counsellor or

social worker providing professional services to the other

person; or

(g) the person is a member of a police force or police service, or

a person employed or providing services in a correctional

institution (however described), performing duties in relation

to the other person; or

(h)

the

person:

(i) is an employer of the other person; or

(ii) has the authority to determine significant aspects of the

other person's terms and conditions of employment; or

(iii) has the authority to terminate the other person's

employment (whether the other person is being paid in

respect of that employment or is working in a voluntary

capacity).

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(2) Without limiting who is a parent, step-parent or grandparent of a

person for the purposes of this section:

(a) a person is the parent of another person if the other person is

a child of the person within the meaning of the Family Law

Act 1975; and

(b) a de facto partner of a person's parent is the step-parent of

the person if the de facto partner would be the person's

step-parent except that he or she is not legally married to the

person's parent; and

person if the first person is a parent or step-parent of a parent

or step-parent of the other person.

(3) In this section:

de facto partner of a person has the meaning given by the Acts

Interpretation Act 1901.

272.4 Meaning of sexual intercourse

(1) In this Code, sexual intercourse means:

(a) the penetration, to any extent, of the vagina or anus of a

person by any part of the body of another person; or

(b) the penetration, to any extent, of the vagina or anus of a

person, by an object, carried out by another person; or

(c)

fellatio;

(d)

cunnilingus;

(e) the continuation of any activity mentioned in paragraph (a),

(b), (c) or (d).

(2) In this Code, sexual intercourse does not include an act of

penetration that:

(a) is carried out for a proper medical or hygienic purpose; or

(b) is carried out for a proper law enforcement purpose.

(3) For the purposes of this section, vagina includes:

(a) any part of a female person's genitalia; and

(b) a surgically constructed vagina.

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272.5 Meaning of offence against this Division and extension of

criminal responsibility

(1) A reference in this Division (except section 272.19, which deals

with encouraging an offence against this Division) to an offence

against this Division, or against a particular provision of it,

includes:

(a) a reference to:

(i) an offence against section 6 of the Crimes Act 1914

(accessory after the fact); or

(ii) an offence against section 11.1 (attempt), 11.5

(conspiracy) or 272.19 of this Code;

that relates to an offence against this Division or against that

provision of it; and

(b) a reference to an offence against this Division, or against that

provision of it, because of section 11.2 (complicity and

common purpose), 11.2A (joint commission) or 11.3

(commission by proxy).

(2) A reference in section 272.19 (encouraging offence against this

Division) to an offence against this Division or against a particular

provision of it does not include a reference to such an offence

because of section 11.2 (complicity and common purpose) or

11.2A (joint commission).

(3) Section 11.1 (attempt) does not apply to an offence against:

(a) section 272.14 (procuring child to engage in sexual activity

outside Australia); or

(b) section 272.15 ("grooming" child to engage in sexual activity

outside Australia); or

Division).

(4) Section 11.4 (incitement) does not apply to an offence against this

Division.

(5) Section 11.5 (conspiracy) does not apply to an offence against

section 272.19 (encouraging offence against this Division).

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272.6 Who can be prosecuted for an offence committed outside

Australia

A person must not be charged with an offence against this Division

that the person allegedly committed wholly outside Australia

unless, at the time of the offence, the person was:

(a) an Australian citizen; or

(b) a resident of Australia; or

Commonwealth or of a State or Territory; or

(d) any other body corporate that carries on its activities

principally in Australia.

272.7 Saving of other laws

This Division is not intended to exclude or limit the operation of

any other law of the Commonwealth or any law of a State or

Territory.

Subdivision B--Sexual offences against children outside

Australia

272.8 Sexual intercourse with child outside Australia

Engaging in sexual intercourse with child

(1) A person commits an offence if:

(a) the person engages in sexual intercourse with another person

(the child); and

(b) the child is under 16; and

Penalty: Imprisonment for 20 years.

Causing child to engage in sexual intercourse in presence of

defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

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(b) that conduct causes the child to engage in sexual intercourse

in the presence of the person; and

in; and

(d) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 20 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c)

and (d).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.16.

272.9 Sexual activity (other than sexual intercourse) with child

outside Australia

Engaging in sexual activity with child

(1) A person commits an offence if:

(a) the person engages in sexual activity (other than sexual

intercourse) with another person (the child); and

(b) the child is under 16; and

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

(b) that conduct causes the child to engage in sexual activity

(other than sexual intercourse) in the presence of the person;

and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 15 years.

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(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(c)

and (d).

Note:

For absolute liability, see section 6.2.

Defence--child present but defendant does not intend to derive

gratification

(5) It is a defence to a prosecution for an offence against subsection (1)

or (2) if:

(a) the conduct constituting the offence consists only of the child

being in the presence of the defendant while sexual activity is

engaged in; and

(b) the defendant proves that he or she did not intend to derive

gratification from the presence of the child during that

activity.

Note 1:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Note 2:

For a defence based on belief about age, see section 272.16.

272.10 Aggravated offence--child with mental impairment or under

care, supervision or authority of defendant

(1) A person commits an offence against this section (the aggravated

offence) if:

(a) the person commits an offence (the underlying offence)

against one of the following provisions in relation to another

person (the child):

(i) subsection 272.8(1) (engaging in sexual intercourse

with child outside Australia);

(ii) subsection 272.8(2) (causing child to engage in sexual

intercourse in presence of defendant outside Australia);

(iii) subsection 272.9(1) (engaging in sexual activity (other

than sexual intercourse) with child outside Australia);

(iv) subsection 272.9(2) (causing child to engage in sexual

activity (other than sexual intercourse) in presence of

defendant outside Australia); and

(b) either or both of the following apply at the time the person

commits the underlying offence:

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(i) the child has a mental impairment;

(ii) the person is in a position of trust or authority in relation

to the child, or the child is otherwise under the care,

supervision or authority of the person.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for the physical element described in

paragraph (1)(a) other than the fault elements (however described),

if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence

for the purposes of paragraph (1)(a) if the person has a defence to

the underlying offence.

(4) Absolute liability applies to subparagraph (1)(b)(i).

Note:

For absolute liability, see section 6.2.

(5) Strict liability applies to subparagraph (1)(b)(ii).

Note:

For strict liability, see section 6.1.

Defence--belief that child did not have mental impairment

(6) Subparagraph (1)(b)(i) does not apply if the defendant proves that,

at the time he or she committed the underlying offence, he or she

believed that the child did not have a mental impairment.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

(7) In determining whether the defendant had the belief mentioned in

subsection (6), the trier of fact may take into account whether the

alleged belief was reasonable in the circumstances.

272.11 Persistent sexual abuse of child outside Australia

(1) A person commits an offence against this section if the person

commits an offence (the underlying offence) against one or more

of the following provisions in relation to the same person (the

child) on 3 or more separate occasions during any period:

(a) subsection 272.8(1) (engaging in sexual intercourse with

child outside Australia);

(b) subsection 272.8(2) (causing child to engage in sexual

intercourse in presence of defendant outside Australia);

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sexual intercourse) with child outside Australia);

(d) subsection 272.9(2) (causing child to engage in sexual

activity (other than sexual intercourse) in presence of

defendant outside Australia).

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements

described in subsection (1) other than the fault elements (however

described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence

for the purposes of subsection (1) if the person has a defence to the

underlying offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the

underlying offence, or the conduct constituting the underlying

offence, is the same on each occasion.

Certain matters need not be proved

(5) In proceedings for an offence against this section, it is not

necessary to specify or to prove the dates or exact circumstances of

the occasions on which the conduct constituting the offence against

this section occurred.

Content of charge

(6) A charge of an offence against this section:

(a) must specify with reasonable particularity the period during

which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to

have been committed by the person during that period.

Trier of fact to be satisfied of certain matters

(7) In order for the person to be found guilty of an offence against this

section:

(a) the trier of fact must be satisfied beyond reasonable doubt

that the evidence establishes at least 3 separate occasions

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during the period concerned on which the person engaged in

conduct constituting an offence against subsection 272.8(1)

or (2) or 272.9(1) or (2), of a nature described in the charge,

in relation to the child; and

(b) the trier of fact must be so satisfied about the material facts

of the 3 such occasions, although the trier of fact need not be

so satisfied about the dates or the order of those occasions;

and

relied on as evidence of the commission of an offence against

this section--all the members of the jury must be so satisfied

about the same 3 incidents.

(8) In proceedings for an offence against this section, the judge must

warn the jury (if any) of the requirements of subsection (7).

Double jeopardy etc.

(9) A person who has been convicted or acquitted of an offence

against this section may not be convicted of another offence

against section 272.8, 272.9 or 272.10 that is alleged to have been

committed in relation to the child in the period during which the

person was alleged to have committed the offence against this

section.

(10) However, subsection (9) does not prevent an alternative verdict

under section 272.28.

(11)

person who has been convicted or acquitted of an offence

against section 272.8, 272.9 or 272.10 in relation to a person (the

child) may not be convicted of an offence against this section in

relation to the child if any of the occasions relied on as evidence of

the commission of the offence against this section includes the

conduct that constituted the offence of which the person was

convicted or acquitted.

272.12 Sexual intercourse with young person outside Australia--

defendant in position of trust or authority

Engaging in sexual intercourse with young person

(1) A person commits an offence if:

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(a) the person engages in sexual intercourse with another person

(the young person); and

(b) the young person is at least 16 but under 18; and

the young person; and

(d) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 10 years.

Causing young person to engage in sexual intercourse in presence

of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the young person); and

(b) that conduct causes the young person to engage in sexual

intercourse in the presence of the person; and

intercourse is engaged in; and

(d) the person is in a position of trust or authority in relation to

the young person; and

(e) the sexual intercourse is engaged in outside Australia.

Penalty: Imprisonment for 10 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c)

and (e).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.16.

(5) Strict liability applies to paragraphs (1)(c) and (2)(d).

Note:

For strict liability, see section 6.1.

272.13 Sexual activity (other than sexual intercourse) with young

person outside Australia--defendant in position of trust

or authority

Engaging in sexual activity with young person

(1) A person commits an offence if:

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(a) the person engages in sexual activity (other than sexual

intercourse) with another person (the young person); and

(b) the young person is at least 16 but under 18; and

the young person; and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 7 years.

Causing young person to engage in sexual activity in presence of

defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the young person); and

(b) that conduct causes the young person to engage in sexual

activity (other than sexual intercourse) in the presence of the

person; and

activity is engaged in; and

(d) the person is in a position of trust or authority in relation to

the young person; and

(e) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 7 years.

(3) The fault element for paragraph (2)(b) is intention.

(4) Absolute liability applies to paragraphs (1)(b) and (d) and (2)(c)

and (e).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.16.

(5) Strict liability applies to paragraphs (1)(c) and (2)(d).

Note:

For strict liability, see section 6.1.

Defence--young person present but defendant does not intend to

derive gratification

(6) It is a defence to a prosecution for an offence against subsection (1)

or (2) if:

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(a) the conduct constituting the offence consists only of the

young person being in the presence of the defendant while

sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive

gratification from the presence of the young person during

that activity.

Note 1:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Note 2:

For a defence based on belief about age, see section 272.16.

272.14 Procuring child to engage in sexual activity outside Australia

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

(b) the person does so with the intention of procuring the child to

engage in sexual activity (whether or not with the person)

outside Australia; and

(i) who is under 16; or

(ii) who the person believes to be under 16; and

(d) one or more of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the child is outside Australia when the conduct referred

to in paragraph (a) occurs;

(iii) the conduct referred to in paragraph (a) occurs wholly in

Australia and the child is in Australia when that conduct

occurs.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to subparagraph (1)(c)(i) and

paragraph (1)(d).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.16.

(3) A person may be found guilty of an offence against subsection (1)

even if it is impossible for the sexual activity referred to in that

subsection to take place.

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(4) For the purposes of subsection (1), it does not matter that the child

is a fictitious person represented to the person as a real person.

272.15 "Grooming" child to engage in sexual activity outside

Australia

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person

(the child); and

(b) the person does so with the intention of making it easier to

procure the child to engage in sexual activity (whether or not

with the person) outside Australia; and

(i) who is under 16; or

(ii) who the person believes to be under 16; and

(d) one or more of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the child is outside Australia when the conduct referred

to in paragraph (a) occurs;

(iii) the conduct referred to in paragraph (a) occurs wholly in

Australia and the child is in Australia when that conduct

occurs.

Penalty: Imprisonment for 12 years.

(2) Absolute liability applies to subparagraph (1)(c)(i) and

paragraph (1)(d).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.16.

(3) A person may be found guilty of an offence against subsection (1)

even if it is impossible for the sexual activity referred to in that

subsection to take place.

(4) For the purposes of subsection (1), it does not matter that the child

is a fictitious person represented to the person as a real person.

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272.16 Defence based on belief about age

Offences involving sexual intercourse or other sexual activity with

a child--belief that child at least 16

(1) It is a defence to a prosecution for an offence against section 272.8

or 272.9 if the defendant proves that, at the time of the sexual

intercourse or sexual activity, he or she believed that the child was

at least 16.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving sexual intercourse or other sexual activity with

young person--belief that young person at least 18

(2) It is a defence to a prosecution for an offence against

section 272.12 or 272.13 if the defendant proves that, at the time of

the sexual intercourse or sexual activity, he or she believed that the

young person was at least 18.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving procuring or "grooming" child for sexual

activity--belief that child at least 16

(3) It is a defence to a prosecution for an offence against

section 272.14 or 272.15 if the defendant proves that, at the time

the defendant engaged in the conduct constituting the offence, he

or she believed that the child was at least 16.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Trier of fact may take into account whether belief reasonable

(4) In determining whether the defendant had the belief mentioned in

subsection (1), (2) or (3), the trier of fact may take into account

whether the alleged belief was reasonable in the circumstances.

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272.17 Defence based on valid and genuine marriage

Offences involving engaging in sexual intercourse or other sexual

activity with child or young person

(1) It is a defence to a prosecution for an offence against subsection

272.8(1), 272.9(1), 272.12(1) or 272.13(1) if the defendant proves

that:

(a) at the time of the sexual intercourse or sexual activity, there

existed between the defendant and the child or the young

person a marriage that was valid, or recognised as valid,

under the law of:

(i) the place where the marriage was solemnised; or

(ii) the place where the offence was committed; or

(iii) the place of the defendant's residence or domicile; and

(b) when it was solemnised, the marriage was genuine.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving procuring or "grooming" child for sexual

activity

(2) It is a defence to a prosecution for an offence against subsection

272.14(1) or 272.15(1) if the defendant proves that:

(a) at the time he or she committed the offence, there existed

between the defendant and the child a marriage that was

valid, or recognised as valid, under the law of:

(i) the place where the marriage was solemnised; or

(ii) the place where the offence was committed; or

(iii) the place of the defendant's residence or domicile; and

(b) when it was solemnised, the marriage was genuine.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

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Subdivision C--Offences of benefiting from, encouraging or

preparing for sexual offences against children outside

Australia

272.18 Benefiting from offence against this Division

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of benefiting from an

offence against this Division; and

benefiting from such an offence.

Penalty: Imprisonment for 20 years.

(2) Subsection (1) applies:

(a) whether the conduct is engaged in within or outside

Australia; and

(b) whether or not the person intends to benefit financially from

an offence against this Division; and

committed.

(3) Absolute liability applies to paragraph (1)(c).

Note:

For absolute liability, see section 6.2.

272.19 Encouraging offence against this Division

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of encouraging an

offence against this Division (other than this section or

section 272.20); and

offence.

Penalty: Imprisonment for 20 years.

(2) Subsection (1) applies:

(a) whether the conduct is engaged in within or outside

Australia; and

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(b) whether or not an offence against this Division is in fact

committed.

(3) Absolute liability applies to paragraph (1)(c).

Note:

For absolute liability, see section 6.2.

(4) In this section, encourage means:

(a) encourage, incite to, or urge, by any means whatever,

(including by a written, electronic or other form of

communication); or

(b) aid, facilitate, or contribute to, in any way whatever.

272.20 Preparing for or planning offence against this Division

Offences involving sexual intercourse or other sexual activity with

child, and benefiting offence

(1) A person commits an offence if:

(a) the person does an act; and

(b) the person does so with the intention of preparing for, or

planning, an offence against section 272.8, 272.9, 272.10,

272.11 or 272.18.

Penalty: Imprisonment for 10 years.

Offences involving sexual intercourse or other sexual activity with

young person

(2) A person commits an offence if:

(a) the person does an act; and

(b) the person does so with the intention of preparing for, or

planning, an offence against section 272.12 or 272.13.

Penalty: Imprisonment for 5 years.

(3) Subsections (1) and (2) apply:

(a) whether the act is done within or outside Australia; and

(b) whether or not an offence against a provision referred to in

paragraph (1)(b) or (2)(b) is in fact committed; and

a specific offence against a provision referred to in

paragraph (1)(b) or (2)(b); and

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(d) whether or not the act is done in preparation for, or planning,

more than one offence against a provision referred to in

paragraph (1)(b) or (2)(b).

Subdivision D--Video link evidence

272.21 When court may take evidence by video link

In a proceeding for an offence against this Division, the court may,

on application by a party to the proceeding, direct that a witness

give evidence by video link if:

(a) the witness will give the evidence from outside Australia; and

(b) the witness is not a defendant in the proceeding; and

reasonably be made available; and

(d) the court is satisfied that attendance of the witness at the

court to give the evidence would:

(i) cause unreasonable expense or inconvenience; or

(ii) cause the witness psychological harm or unreasonable

distress; or

(iii) cause the witness to become so intimidated or distressed

that his or her reliability as a witness would be

significantly reduced; and

(e) the court is satisfied that it is consistent with the interests of

justice that the evidence be taken by video link.

272.22 Technical requirements for video link

(1) A witness can give evidence under a direction only if:

(a) the courtroom or other place in Australia where the court is

sitting (the Australian location); and

(b) the place where the evidence is given (the overseas location);

are equipped with video facilities that:

and hear the witness give the evidence; and

(d) enable appropriate persons at the overseas location to see and

hear appropriate persons at the Australian location.

(2) In subsection (1):

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appropriate persons means such persons as the court considers

appropriate.

272.23 Application of laws about witnesses

A person who gives evidence under a direction is taken to give it at

the courtroom or other place in Australia where the court is sitting.

Note:

This section has effect, for example, for the purposes of laws relating

to evidence, procedure, contempt of court and perjury.

272.24 Administration of oaths and affirmations

An oath or affirmation to be sworn or made by a witness who is to

give evidence under a direction may be administered either:

(a) by means of the video link, in as nearly as practicable the

same way as if the witness were to give the evidence at the

courtroom or other place in Australia where the court is

sitting; or

(b)

follows:

(i) on behalf of the court and as directed by it;

(ii) by a person (whether an Australian official or not)

authorised by the court;

(iii) at the place where the witness is to give the evidence.

272.25 Expenses

A court may make such orders as are just for payment of expenses

incurred in connection with giving evidence under a direction by

the court under this Subdivision.

272.26 Other laws about foreign evidence not affected

This Subdivision does not prevent any other law about taking

evidence of a witness outside Australia from applying for the

purposes of a proceeding for an offence against this Division.

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Subdivision E--Other rules about conduct of trials

272.27 Evidence relating to a person's age

(1) For the purposes of this Division, evidence that a person was

represented to the defendant as being under or of a particular age

is, in the absence of evidence to the contrary, proof that the

defendant believed that person to be under or of that age.

(2) In determining for the purposes of this Division how old a person

is or was at a particular time, a jury or court may treat any of the

following as admissible evidence:

(a) the person's appearance;

(b) medical or other scientific opinion;

record from a country outside Australia;

(d) a document that is or appears to be a copy of such a record.

(3) Subsection (2) does not make any other kind of evidence

inadmissible, and does not affect a prosecutor's duty to do all he or

she can to adduce the best possible evidence for determining the

question.

(4) If, on a trial for an offence against this Division, evidence may be

treated as admissible because of subsection (2), the court must

warn the jury that it must be satisfied beyond reasonable doubt in

determining the question.

272.28 Alternative verdicts

If, on a trial for an offence (the column 1 offence) against a

provision referred to in column 1 of an item in the following table,

the trier of fact:

(a) is not satisfied that the defendant is guilty of the column 1

offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of

an offence (the column 2 offence) against a provision

referred to in column 2 of that item;

it may find the defendant not guilty of the column 1 offence but

guilty of the column 2 offence, so long as the defendant has been

accorded procedural fairness in relation to that finding of guilt.

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Alternative verdicts

Item

Column 1

Column 2

subsection 272.8(1)

subsection 272.9(1)

subsection 272.8(2)

subsection 272.9(2)

subsection 272.9(1)

subsection 272.8(1)

subsection 272.9(2)

subsection 272.8(2)

subsection 272.10(1)

subsection 272.8(1), 272.8(2),

272.9(1) or 272.9(2)

subsection 272.11(1)

subsection 272.8(1), 272.8(2),

272.9(1), 272.9(2) or 272.10(1)

subsection 272.12(1)

subsection 272.13(1)

subsection 272.12(2)

subsection 272.13(2)

subsection 272.13(1)

subsection 272.12(1)

subsection 272.13(2)

subsection 272.12(2)

272.29 Double jeopardy

If a person has been convicted or acquitted in a country outside

Australia of an offence against the law of that country in respect of

any conduct, the person cannot be convicted of an offence against

this Division in respect of that conduct.

272.30 Sentencing

(1) In determining the sentence to be passed, or the order to be made,

in respect of a person for an offence against Subdivision B of this

Division, the court must take into account the age and maturity of

the person in relation to whom the offence was committed, so far

as these matters are relevant and known to the court.

(2) The matters mentioned in subsection (1) are in addition to any

other matters the court must take into account (for example, the

matters mentioned in subsection 16A(2) of the Crimes Act 1914).

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272.31 Consent to commencement of proceedings where defendant

under 18

(1) Proceedings for an offence against this Division must not be

commenced without the consent of the Attorney-General if the

defendant was under 18 at the time he or she allegedly engaged in

the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded

in custody or on bail in connection with, such an offence before the

necessary consent has been given.

Division 273--Offences involving child pornography

material or child abuse material outside Australia

Subdivision A--Preliminary

273.1 Definitions

(1) Subject to subsections (2) and (3), an expression used in this

Division that is defined in Part 10.6 has the same meaning in this

Division as it has in that Part.

Note:

These expressions include child abuse material and child

pornography material.

(2) A reference in this Division to a person having possession or

control of material includes a reference to the person:

(a) having possession of a computer or data storage device that

holds or contains the material; or

(b) having possession of a document in which the material is

recorded; or

possession of another person (whether inside or outside

Australia).

(3) A reference in this Division to a person producing, distributing or

obtaining material includes a reference to the person:

(a) producing, distributing or obtaining material held or

contained in a computer or data storage device; or

(b) producing, distributing or obtaining a document in which the

material is recorded.

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(4) Section 473.4 applies in relation to this Division as if the reference

in that section to Part 10.6 were a reference to this Division.

Note:

Section 473.4 sets out matters that may be taken into account in

deciding whether particular material is offensive.

273.2 Who can be prosecuted for an offence committed outside

Australia

A person must not be charged with an offence against this Division

that the person allegedly committed outside Australia unless, at the

time of the offence, the person was:

(a) an Australian citizen; or

(b) a resident of Australia; or

Commonwealth or of a State or Territory; or

(d) any other body corporate that carries on its activities

principally in Australia.

273.3 Double jeopardy

If a person has been convicted or acquitted in a country outside

Australia of an offence against the law of that country in respect of

any conduct, the person cannot be convicted of an offence against

this Division in respect of that conduct.

273.4 Saving of other laws

This Division is not intended to exclude or limit the operation of

any other law of the Commonwealth or any law of a State or

Territory.

Subdivision B--Offences committed overseas involving child

pornography material or child abuse material

273.5 Possessing, controlling, producing, distributing or obtaining

child pornography material outside Australia

(1) A person commits an offence if:

(a)

the

person:

(i) has possession or control of material; or

(ii) produces, distributes or obtains material; or

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(iii) facilitates the production or distribution of material; and

(b) the material is child pornography material; and

Australia.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(c).

Note:

For absolute liability, see section 6.2.

273.6 Possessing, controlling, producing, distributing or obtaining

child abuse material outside Australia

(1) A person commits an offence if:

(a)

the

person:

(i) has possession or control of material; or

(ii) produces, distributes or obtains material; or

(iii) facilitates the production or distribution of material; and

(b) the material is child abuse material; and

Australia.

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to paragraph (1)(c).

Note:

For absolute liability, see section 6.2.

273.7 Aggravated offence--offence involving conduct on 3 or more

occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following

provisions on 3 or more separate occasions:

(i) section 273.5 (possessing etc. child pornography

material outside Australia);

(ii) section 273.6 (possessing etc. child abuse material

outside Australia); and

(b) the commission of each such offence involves 2 or more

people.

Penalty: Imprisonment for 25 years.

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(2) There is no fault element for any of the physical elements

described in paragraph (1)(a) other than the fault elements

(however described), if any, for the offence against section 273.5

or 273.6.

(3) To avoid doubt, a person does not commit an offence against

section 273.5 or 273.6 for the purposes of paragraph (1)(a) if the

person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the

offence, or the conduct constituting the offence, is the same on

each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the

aggravated offence) against this section may not be convicted of

an offence against section 273.5 or 273.6 in relation to the conduct

that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under

section 273.8.

(7) A person who has been convicted or acquitted of an offence (the

underlying offence) against section 273.5 or 273.6 may not be

convicted of an offence against this section in relation to the

conduct that constituted the underlying offence.

273.8 Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against

subsection 273.7(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated

offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of

an offence against section 273.5 or 273.6;

it may find the defendant not guilty of the aggravated offence but

guilty of the offence against section 273.5 or 273.6, so long as the

defendant has been accorded procedural fairness in relation to that

finding of guilt.

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Subdivision C--Defences

273.9 Defences to offences against this Division

(1) A person is not criminally responsible for an offence against

section 273.5 or 273.6 because of engaging in particular conduct if

the conduct:

(a) is of public benefit; and

(b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not

criminally responsible for the offence, the question whether the

conduct is of public benefit is a question of fact and the person's

motives in engaging in the conduct are irrelevant.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

(2) For the purposes of subsection (1), conduct is of public benefit if,

and only if, the conduct is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or Territory,

or a foreign country; or

(b) monitoring compliance with, or investigating a contravention

of, a law of the Commonwealth, a State or Territory or a

foreign country; or

Australia); or

(d) conducting scientific, medical or educational research.

(3) Paragraph (2)(d) only applies if the person's conduct was, in all the

circumstances, reasonable having regard to the purpose mentioned

in that paragraph.

(4) A person is not criminally responsible for an offence against

section 273.5 or 273.6 if:

(a) the person is, at the time of the offence:

(i) a law enforcement officer; or

(ii) an intelligence or security officer; or

(iii) an officer or employee of the government of a foreign

country performing similar duties to an intelligence or

security officer; and

(b) the person is acting in the course of his or her duties; and

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for the purpose of performing that duty.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

(5) A person is not criminally responsible for an offence against

section 273.5 or 273.6 if the person engages in the conduct in good

faith for the sole purpose of:

(a) assisting the Australian Communications and Media

Authority to detect:

(i) prohibited content (within the meaning of Schedule 7 to

the Broadcasting Services Act 1992); or

(ii) potential prohibited content (within the meaning of that

Schedule);

in the performance of the Authority's functions under

Schedule 5 or Schedule 7 to that Act; or

(b) manufacturing or developing, or updating, content filtering

technology (including software) in accordance with:

(i) a recognised alternative access-prevention arrangement

(within the meaning of clause 40 of Schedule 5 to the

Broadcasting Services Act 1992); or

(ii) a designated alternative access-prevention arrangement

(within the meaning of clause 60 of that Schedule).

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

Subdivision D--Video link evidence

273.10 When court may take evidence by video link

In a proceeding for an offence against this Division, the court may,

on application by a party to the proceeding, direct that a witness

give evidence by video link if:

(a) the witness will give the evidence from outside Australia; and

(b) the witness is not a defendant in the proceeding; and

reasonably be made available; and

(d) the court is satisfied that attendance of the witness at the

court to give the evidence would:

(i) cause unreasonable expense or inconvenience; or

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(ii) cause the witness psychological harm or unreasonable

distress; or

(iii) cause the witness to become so intimidated or distressed

that his or her reliability as a witness would be

significantly reduced; and

(e) the court is satisfied that it is consistent with the interests of

justice that the evidence be taken by video link.

273.11 Technical requirements for video link

(1) A witness can give evidence under a direction only if:

(a) the courtroom or other place in Australia where the court is

sitting (the Australian location); and

(b) the place where the evidence is given (the overseas location);

are equipped with video facilities that:

and hear the witness give the evidence; and

(d) enable appropriate persons at the overseas location to see and

hear appropriate persons at the Australian location.

(2) In subsection (1):

appropriate persons means such persons as the court considers

appropriate.

273.12 Application of laws about witnesses

A person who gives evidence under a direction is taken to give it at

the courtroom or other place in Australia where the court is sitting.

Note:

This section has effect, for example, for the purposes of laws relating

to evidence, procedure, contempt of court and perjury.

273.13 Administration of oaths and affirmations

An oath or affirmation to be sworn or made by a witness who is to

give evidence under a direction may be administered either:

(a) by means of the video link, in as nearly as practicable the

same way as if the witness were to give the evidence at the

courtroom or other place in Australia where the court is

sitting; or

(b)

follows:

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(i) on behalf of the court and as directed by it;

(ii) by a person (whether an Australian official or not)

authorised by the court;

(iii) at the place where the witness is to give the evidence.

273.14 Expenses

A court may make such orders as are just for payment of expenses

incurred in connection with giving evidence under a direction by

the court under this Subdivision.

273.15 Other laws about foreign evidence not affected

This Subdivision does not prevent any other law about taking

evidence of a witness outside Australia from applying for the

purposes of a proceeding for an offence against this Division.

5 Dictionary in the Criminal Code

Insert:

cause a person to engage in sexual intercourse or other sexual

activity has the meaning given by section 272.2.

6 Dictionary in the Criminal Code

Insert:

engage in sexual activity: without limiting when a person engages

in sexual activity, a person is taken to engage in sexual activity if

the person is in the presence of another person (including by a

means of communication that allows the person to see or hear the

other person) while the other person engages in sexual activity.

7 Dictionary in the Criminal Code

Insert:

mental impairment has the meaning given by subsection 7.3(8).

8 Dictionary in the Criminal Code

Insert:

position of trust or authority has the meaning given by subsection

272.3(1).

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9 Dictionary in the Criminal Code

Insert:

procure a person to engage in sexual activity includes:

(a) encourage, entice or recruit the person to engage in that

activity; or

(b) induce the person (whether by threats, promises or otherwise)

to engage in that activity.

10 Dictionary in the Criminal Code

Insert:

sexual activity means:

(a) sexual intercourse; or

(b) any other activity of a sexual or indecent nature (including an

indecent assault) that involves the human body, or bodily

actions or functions (whether or not that activity involves

physical contact between people).

Note:

See also the definition of engage in sexual activity.

11 Dictionary in the Criminal Code

Insert:

sexual intercourse has the meaning given by section 272.4.

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Part 2--Amendments relating to child sex offences

involving postal or similar services, or

carriage services

Criminal Code Act 1995

12 At the end of Division 470 of the Criminal Code

Add:

470.4 Meaning of expressions used in Subdivisions B and C of

Division 471

(1) Subject to subsections (2) and (3), an expression used in

Subdivision B or C of Division 471 that is defined in Part 10.6 has

the same meaning in that Subdivision as it has in that Part.

Note:

These expressions include child abuse material and child

pornography material.

(2) A reference in Subdivision B or C of Division 471 to a person

having possession or control of material includes a reference to the

person:

(a) having possession of a computer or data storage device that

holds or contains the material; or

(b) having possession of a document in which the material is

recorded; or

possession of another person (whether inside or outside

Australia).

(3) A reference in Subdivision B or C of Division 471 to a person

producing, supplying or obtaining material includes a reference to

the person:

(a) producing, supplying or obtaining material held or contained

in a computer or data storage device; or

(b) producing, supplying or obtaining a document in which the

material is recorded.

(4) Section 473.4 applies in relation to Subdivisions B and C of

Division 471 as if the reference in that section to Part 10.6 were a

reference to those Subdivisions.

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Note:

Section 473.4 sets out matters that may be taken into account in

deciding whether particular material is offensive.

13 Before section 471.1 of the Criminal Code

Insert:

Subdivision A--General postal offences

14 At the end of Division 471 of the Criminal Code

Add:

Subdivision B--Offences relating to use of postal or similar

service for child pornography material or child abuse

material

471.16 Using a postal or similar service for child pornography

material

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or

similar service; and

(b) the article is, or contains, child pornography material.

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person requests another person to cause an article to be

carried by a postal or similar service; and

(b) the article is, or contains, child pornography material.

Penalty: Imprisonment for 15 years.

471.17 Possessing, controlling, producing, supplying or obtaining

child pornography material for use through a postal or

similar service

(1) A person commits an offence if:

(a)

the

person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is child pornography material; and

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production, supply or obtaining, with the intention that the

material be used:

(i) by that person; or

(ii) by another person;

in committing an offence against section 471.16 (using a

postal or similar service for child pornography material).

Penalty: Imprisonment for 15 years.

(2) A person may be found guilty of an offence against subsection (1)

even if committing the offence against section 471.16 (using a

postal or similar service for child pornography material) is

impossible.

(3) It is not an offence to attempt to commit an offence against

subsection (1).

471.18 Defences in respect of child pornography material

(1) A person is not criminally responsible for an offence against

section 471.16 (using a postal or similar service for child

pornography material) or 471.17 (possessing etc. child

pornography material for use through a postal or similar service)

because of engaging in particular conduct if the conduct:

(a) is of public benefit; and

(b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not

criminally responsible for the offence, the question whether the

conduct is of public benefit is a question of fact and the person's

motives in engaging in the conduct are irrelevant.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

(2) For the purposes of subsection (1), conduct is of public benefit if,

and only if, the conduct is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or a Territory;

(b) monitoring compliance with, or investigating a contravention

of, a law of the Commonwealth, a State or a Territory; or

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(d) conducting scientific, medical or educational research that

has been approved by the Minister in writing for the purposes

of this section.

(3) A person is not criminally responsible for an offence against

section 471.16 (using a postal or similar service for child

pornography material) or 471.17 (possessing etc. child

pornography material for use through a postal or similar service) if:

(a) the person is, at the time of the offence, a law enforcement

officer, or an intelligence or security officer, acting in the

course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances

for the purpose of performing that duty.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

471.19 Using a postal or similar service for child abuse material

(1) A person commits an offence if:

(a) the person causes an article to be carried by a postal or

similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person requests another person to cause an article to be

carried by a postal or similar service; and

(b) the article is, or contains, child abuse material.

Penalty: Imprisonment for 15 years.

471.20 Possessing, controlling, producing, supplying or obtaining

child abuse material for use through a postal or similar

service

(1) A person commits an offence if:

(a)

the

person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is child abuse material; and

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production, supply or obtaining, with the intention that the

material be used:

(i) by that person; or

(ii) by another person;

in committing an offence against section 471.19 (using a

postal or similar service for child abuse material).

Penalty: Imprisonment for 15 years.

(2) A person may be found guilty of an offence against subsection (1)

even if committing the offence against section 471.19 (using a

postal or similar service for child abuse material) is impossible.

(3) It is not an offence to attempt to commit an offence against

subsection (1).

471.21 Defences in respect of child abuse material

(1) A person is not criminally responsible for an offence against

section 471.19 (using a postal or similar service for child abuse

material) or 471.20 (possessing etc. child abuse material for use

through a postal or similar service) because of engaging in

particular conduct if the conduct:

(a) is of public benefit; and

(b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not

criminally responsible for the offence, the question whether the

conduct is of public benefit is a question of fact and the person's

motives in engaging in the conduct are irrelevant.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

(2) For the purposes of subsection (1), conduct is of public benefit if,

and only if, the conduct is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or a Territory;

(b) monitoring compliance with, or investigating a contravention

of, a law of the Commonwealth, a State or a Territory; or

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(d) conducting scientific, medical or educational research that

has been approved by the Minister in writing for the purposes

of this section.

(3) A person is not criminally responsible for an offence against

section 471.19 (using a postal or similar service for child abuse

material) or 471.20 (possessing etc. child abuse material for use

through a postal or similar service) if:

(a) the person is, at the time of the offence, a law enforcement

officer, or an intelligence or security officer, acting in the

course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances

for the purpose of performing that duty.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection, see subsection 13.3(3).

471.22 Aggravated offence--offence involving conduct on 3 or more

occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against one or more of the

following provisions on 3 or more separate occasions:

(i) section 471.16 (using a postal or similar service for

child pornography material);

(ii) section 471.17 (possessing etc. child pornography

material for use through a postal or similar service);

(iii) section 471.19 (using a postal or similar service for

child abuse material);

(iv) section 471.20 (possessing etc. child abuse material for

use through a postal or similar service); and

(b) the commission of each such offence involves 2 or more

people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements

described in paragraph (1)(a) other than the fault elements

(however described), if any, for the offence against section 471.16,

471.17, 471.19 or 471.20.

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(3) To avoid doubt, a person does not commit an offence against

section 471.16, 471.17, 471.19 or 471.20 for the purposes of

paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the

offence, or the conduct constituting the offence, is the same on

each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the

aggravated offence) against this section may not be convicted of

an offence against section 471.16, 471.17, 471.19 or 471.20 in

relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under

section 471.23.

(7) A person who has been convicted or acquitted of an offence (the

underlying offence) against section 471.16, 471.17, 471.19 or

471.20 may not be convicted of an offence against this section in

relation to the conduct that constituted the underlying offence.

471.23 Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against

subsection 471.22(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated

offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of

an offence (the underlying offence) against section 471.16,

471.17, 471.19 or 471.20;

it may find the defendant not guilty of the aggravated offence but

guilty of the underlying offence, so long as the defendant has been

accorded procedural fairness in relation to that finding of guilt.

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Subdivision C--Offences relating to use of postal or similar

service involving sexual activity with person under 16

471.24 Using a postal or similar service to procure persons under 16

(1) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the

recipient to engage in sexual activity with the sender; and

to be, under 16; and

(d) the sender is at least 18.

Penalty: Imprisonment for 15 years.

(2) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the

recipient to engage in sexual activity with another person (the

participant); and

to be, under 16; and

(d) the participant is someone who is, or who the sender believes

to be, at least 18.

Penalty: Imprisonment for 15 years.

(3) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of procuring the

recipient to engage in sexual activity with another person;

and

to be, under 16; and

(d) the other person referred to in paragraph (b) is someone who

is, or who the sender believes to be, under 18; and

(e) the sender intends that the sexual activity referred to in

paragraph (b) will take place in the presence of:

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(i) the sender; or

(ii) another person (the participant) who is, or who the

sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.25 Using a postal or similar service to "groom" persons under

(1) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to

procure the recipient to engage in sexual activity with the

sender; and

to be, under 16; and

(d) the sender is at least 18.

Penalty: Imprisonment for 12 years.

(2) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to

procure the recipient to engage in sexual activity with another

person (the participant); and

to be, under 16; and

(d) the participant is someone who is, or who the sender believes

to be, at least 18.

Penalty: Imprisonment for 12 years.

(3) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the sender does this with the intention of making it easier to

procure the recipient to engage in sexual activity with another

person; and

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to be, under 16; and

(d) the other person referred to in paragraph (b) is someone who

is, or who the sender believes to be, under 18; and

(e) the sender intends that the sexual activity referred to in

paragraph (b) will take place in the presence of:

(i) the sender; or

(ii) another person (the participant) who is, or who the

sender believes to be, at least 18.

Penalty: Imprisonment for 15 years.

471.26 Using a postal or similar service to send indecent material to

person under 16

(1) A person (the sender) commits an offence if:

(a) the sender causes an article to be carried by a postal or

similar service to another person (the recipient); and

(b) the article is, or contains, material that is indecent; and

to be, under 16; and

(d) the sender is at least 18.

Penalty: Imprisonment for 7 years.

(2) In a prosecution for an offence against subsection (1), whether

material is indecent is a matter for the trier of fact.

(3) In this section:

indecent means indecent according to the standards of ordinary

people.

471.27 Age-related provisions relating to offences against this

Subdivision

Application of absolute liability

(1) For the purposes of an offence against this Subdivision, absolute

liability applies to the physical element of circumstance of the

offence that the recipient is someone who is under 16.

Note 1:

For absolute liability, see section 6.2.

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Note 2:

For a defence based on belief about age, see section 471.29.

(2) For the purposes of an offence against subsection 471.24(2) or (3)

or 471.25(2) or (3), absolute liability applies to the physical

element of circumstance of the offence that the participant is at

least 18.

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 471.29.

Proof of belief about age--evidence of representation

(3) For the purposes of this Subdivision, evidence that the recipient

was represented to the sender as being under or of a particular age

is, in the absence of evidence to the contrary, proof that the sender

believed the recipient to be under or of that age.

(4) For the purposes of sections 471.24 and 471.25, evidence that the

participant was represented to the sender as being:

(a) at least 18; or

(b) over or of a particular age;

is, in the absence of evidence to the contrary, proof that the sender

believed the participant to be at least 18 or over or of that particular

age.

Determining age--admissible evidence

(5) In determining for the purposes of this Subdivision how old a

person is or was at a particular time, a jury or court may treat any

of the following as admissible evidence:

(a) the person's appearance;

(b) medical or other scientific opinion;

record from a country outside Australia;

(d) a document that is or appears to be a copy of such a record.

(6) Subsection (5) does not make any other kind of evidence

inadmissible, and does not affect a prosecutor's duty to do all he or

she can to adduce the best possible evidence for determining the

question.

(7) If, on a trial for an offence against this Subdivision, evidence may

be treated as admissible because of subsection (5), the court must

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warn the jury that it must be satisfied beyond reasonable doubt in

determining the question.

471.28 Other provisions relating to offences against this Subdivision

Impossibility of sexual activity taking place

(1) A person may be found guilty of an offence against section 471.24

or 471.25 even if it is impossible for the sexual activity referred to

in that section to take place.

Fictitious recipient

(2) For the purposes of an offence against this Subdivision, it does not

matter that the recipient to whom the sender believes the sender is

causing an article to be carried is a fictitious person represented to

the sender as a real person.

Attempt not offence

(3) It is not an offence to attempt to commit an offence against

section 471.24 or 471.25.

471.29 Defences to offences against this Subdivision

Belief that recipient at least 16

(1) It is a defence to a prosecution for an offence against this

Subdivision if the defendant proves that, at the time he or she

caused the article to be carried, the defendant believed that the

recipient was at least 16.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving procuring or "grooming" child for sexual

activity with other participant--belief that participant under 18

(2) It is a defence to a prosecution for an offence against subsection

471.24(2) or (3) or 471.25(2) or (3) if the defendant proves that, at

the time he or she caused the article to be carried, the defendant

believed that the participant was under 18.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

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Trier of fact may take into account whether belief reasonable

(3) In determining whether the defendant had the belief mentioned in

subsection (1) or (2), the trier of fact may take into account

whether the alleged belief was reasonable in the circumstances.

Subdivision D--Miscellaneous

471.30 Geographical jurisdiction

Section 15.1 (extended geographical jurisdiction--category A)

applies to an offence against Subdivision B or C of this Division.

471.31 Definition of carry by post does not apply

To avoid doubt, the definition of carry by post in section 470.1

does not apply in relation to Subdivision B or C of this Division.

15 Section 473.1 of the Criminal Code

Insert:

use, a carriage service, has a meaning affected by section 473.5.

16 At the end of Division 473 of the Criminal Code

Add:

473.5 Use of a carriage service

For the purposes of this Part, a person is taken not to use a carriage

service by engaging in particular conduct if:

(a) the person is a carrier and, in engaging in that conduct, is

acting solely in the person's capacity as a carrier; or

(b) the person is a carriage service provider and, in engaging in

that conduct, is acting solely in the person's capacity as a

carriage service provider; or

that conduct, is acting solely in the person's capacity as an

internet service provider; or

(d) the person is an internet content host and, in engaging in that

conduct, is acting solely in the person's capacity as an

internet content host.

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17 Subdivision C of Division 474 of the Criminal Code

(heading)

Repeal the heading, substitute:

Subdivision C--General offences relating to use of

telecommunications

18 Section 474.13 of the Criminal Code

Repeal the section.

19 After section 474.18 of the Criminal Code

Insert:

Subdivision D--Offences relating to use of carriage service for

child pornography material or child abuse material

20 Paragraph 474.19(1)(a) of the Criminal Code

Repeal the paragraph, substitute:

(a)

the

person:

(i) accesses material; or

(ii) causes material to be transmitted to himself or herself;

(iii) transmits, makes available, publishes, distributes,

advertises or promotes material; or

(iv) solicits material; and

(aa) the person does so using a carriage service; and

21 Subsection 474.19(1) of the Criminal Code (penalty)

Omit "10", substitute "15".

22 After subsection 474.19(2) of the Criminal Code

Insert:

(2A) Absolute liability applies to paragraph (1)(aa).

Note:

For absolute liability, see section 6.2.

23 Subsection 474.20(1) of the Criminal Code (penalty)

Omit "10", substitute "15".

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24 Paragraph 474.22(1)(a) of the Criminal Code

Repeal the paragraph, substitute:

(a)

the

person:

(i) accesses material; or

(ii) causes material to be transmitted to himself or herself;

(iii) transmits, makes available, publishes, distributes,

advertises or promotes material; or

(iv) solicits material; and

(aa) the person does so using a carriage service; and

25 Subsection 474.22(1) of the Criminal Code (penalty)

Omit "10", substitute "15".

26 After subsection 474.22(2) of the Criminal Code

Insert:

(2A) Absolute liability applies to paragraph (1)(aa).

Note:

For absolute liability, see section 6.2.

27 Subsection 474.23(1) of the Criminal Code (penalty)

Omit "10", substitute "15".

28 After section 474.24 of the Criminal Code

Insert:

474.24A Aggravated offence--offence involving conduct on 3 or

more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against one or more of the

following provisions on 3 or more separate occasions:

(i) section 474.19 (using a carriage service for child

pornography material);

(ii) section 474.20 (possessing etc. child pornography

material for use through a carriage service);

(iii) section 474.22 (using a carriage service for child abuse

material);

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(iv) section 474.23 (possessing etc. child abuse material for

use through a carriage service); and

(b) the commission of each such offence involves 2 or more

people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements

described in paragraph (1)(a) other than the fault elements

(however described), if any, for the offence against section 474.19,

474.20, 474.22 or 474.23.

(3) To avoid doubt, a person does not commit an offence against

section 474.19, 474.20, 474.22 or 474.23 for the purposes of

paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the

offence, or the conduct constituting the offence, is the same on

each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the

aggravated offence) against this section may not be convicted of

an offence against section 474.19, 474.20, 474.22 or 474.23 in

relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under

section 474.24B.

(7) A person who has been convicted or acquitted of an offence (the

underlying offence) against section 474.19, 474.20, 474.22 or

474.23 may not be convicted of an offence against this section in

relation to the conduct that constituted the underlying offence.

474.24B Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence) against

subsection 474.24A(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated

offence; but

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(b) is satisfied beyond reasonable doubt that he or she is guilty of

an offence (the underlying offence) against section 474.19,

474.20, 474.22 or 474.23;

it may find the defendant not guilty of the aggravated offence but

guilty of the underlying offence, so long as the defendant has been

accorded procedural fairness in relation to that finding of guilt.

Subdivision E--Offence relating to obligations of internet

service providers and internet content hosts

29 After section 474.25 of the Criminal Code

Insert:

Subdivision F--Offences relating to use of carriage service

involving sexual activity with person under 16

474.25A Using a carriage service for sexual activity with person

under 16 years of age

Engaging in sexual activity with child using a carriage service

(1) A person commits an offence if:

(a) the person engages in sexual activity with another person (the

child) using a carriage service; and

(b) the child is under 16 years of age; and

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity with another person

(2) A person (the defendant) commits an offence if:

(a) the defendant engages in conduct in relation to another

person (the child); and

(b) that conduct causes the child to engage in sexual activity with

another person (the participant) using a carriage service; and

engaged in; and

(d) the participant is at least 18 years of age when the sexual

activity is engaged in.

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Penalty: Imprisonment for 15 years.

(3) The fault element for paragraph (2)(b) is intention.

Defence--child present but defendant does not intend to derive

gratification

(4) It is a defence to a prosecution for an offence against subsection (1)

or (2) if:

(a) the conduct constituting the offence consists only of the child

being in the presence of a person while sexual activity is

engaged in; and

(b) the defendant proves that he or she did not intend to derive

gratification from the presence of the child during that

activity.

Note 1:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Note 2:

For other defences relating to this offence, see section 474.29.

474.25B Aggravated offence--child with mental impairment or

under care, supervision or authority of defendant

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following

provisions in relation to another person (the child):

(i) subsection 474.25A(1) (engaging in sexual activity with

child using a carriage service);

(ii) subsection 474.25A(2) (causing child to engage in

sexual activity with another person); and

(b) either or both of the following apply at the time the person

commits the offence:

(i) the child has a mental impairment;

(ii) the person is in a position of trust or authority in relation

to the child, or the child is otherwise under the care,

supervision or authority of the person.

Penalty: Imprisonment for 25 years.

(2) To avoid doubt, a person does not commit the offence against

subsection 474.25A(1 or (2) for the purposes of paragraph (1)(a) if

the person has a defence to that offence.

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Alternative verdicts

(3) If, on a trial for an offence (the aggravated offence) against

subsection (1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated

offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of

an offence (the underlying offence) against subsection

474.25A(1) or (2);

it may find the defendant not guilty of the aggravated offence but

guilty of the underlying offence, so long as the defendant has been

accorded procedural fairness in relation to that finding of guilt.

30 Paragraph 474.26(1)(b) of the Criminal Code

Omit ", or submit to,".

31 Paragraph 474.26(2)(b) of the Criminal Code

Omit ", or submit to, sexual activity with another person", substitute

"sexual activity with another person (the participant)".

32 Paragraph 474.26(2)(d) of the Criminal Code

Omit "the other person referred to in paragraph (b)", substitute "the

participant".

33 Paragraph 474.26(3)(b) of the Criminal Code

Omit ", or submit to,".

34 Subparagraph 474.26(3)(e)(ii) of the Criminal Code

After "person", insert "(the participant)".

35 Paragraph 474.27(1)(b) of the Criminal Code

Repeal the paragraph.

36 Paragraph 474.27(1)(c) of the Criminal Code

Omit ", or submit to,".

37 Paragraph 474.27(2)(b) of the Criminal Code

Repeal the paragraph.

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38 Paragraph 474.27(2)(c) of the Criminal Code

Omit ", or submit to, sexual activity with another person", substitute

"sexual activity with another person (the participant)".

39 Paragraph 474.27(2)(e) of the Criminal Code

Omit "the other person referred to in paragraph (c)", substitute "the

participant".

40 Paragraph 474.27(3)(b) of the Criminal Code

Repeal the paragraph.

41 Paragraph 474.27(3)(c) of the Criminal Code

Omit ", or submit to,".

42 Subparagraph 474.27(3)(f)(ii) of the Criminal Code

After "person", insert "(the participant)".

43 Subsections 474.27(4) and (5) of the Criminal Code

Repeal the subsections.

44 After section 474.27 of the Criminal Code

Insert:

474.27A Using a carriage service to transmit indecent

communication to person under 16 years of age

(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a

communication to another person (the recipient); and

(b) the communication includes material that is indecent; and

to be, under 16 years of age; and

(d) the sender is at least 18 years of age.

Penalty: Imprisonment for 7 years.

(2) In a prosecution for an offence against subsection (1), whether

material is indecent is a matter for the trier of fact.

(3) In this section:

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indecent means indecent according to the standards of ordinary

people.

45 Subsection 474.28(1) of the Criminal Code

Repeal the subsection (not including the notes), substitute:

Age-related issues--application of absolute liability

(1) For the purposes of an offence against this Subdivision, absolute

liability applies to the physical element of circumstance of the

offence that:

(a) in the case of an offence against section 474.25A--the child

is under 16 years of age; and

(b) in the case of an offence against section 474.26, 474.27 or

474.27A--the recipient is someone who is under 16 years of

age.

Note:

The heading to section 474.28 of the Criminal Code is altered by omitting

"sections 474.26 and 474.27" and substituting "this Subdivision".

46 Subsection 474.28(2) of the Criminal Code

Before "474.26(2) or (3) or 474.27(2) or (3)", insert "474.25A(2),".

47 Subsection 474.28(2) of the Criminal Code

Omit "the other person referred to in paragraph 474.26(2)(b) or (3)(e) or

474.27(2)(c) or (3)(f)", substitute "the participant".

48 Subsection 474.28(3) of the Criminal Code

Omit "474.26 and 474.27", substitute "474.26, 474.27 and 474.27A".

Note:

The following heading to subsection 474.28(3) of the Criminal Code is inserted "Proof

of belief about age--evidence of representation".

49 Subsection 474.28(4) of the Criminal Code

Omit "sections 474.26 and 474.27, evidence that the other person

referred to in paragraph 474.26(2)(b) or (3)(e) or 474.27(2)(c) or (3)(f)",

substitute "sections 474.25A, 474.26 and 474.27, evidence that the

participant".

50 Subsection 474.28(4) of the Criminal Code

Omit "other person" (second occurring), substitute "participant".

Amendments relating to sexual offences against children Schedule 1

Amendments relating to child sex offences involving postal or similar services, or

carriage services Part 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

51 Subsection 474.28(5) of the Criminal Code

Omit "sections 474.26 and 474.27", substitute "this Subdivision".

Note:

The following heading to subsection 474.28(5) of the Criminal Code is inserted

"Determining age--admissible evidence".

52 Subsection 474.28(7) of the Criminal Code

Omit "sections 474.26 and 474.27", substitute "a provision of this

Subdivision".

53 After subsection 474.28(7) of the Criminal Code

Insert:

Issues relating to aggravated offence involving sexual activity

(7A) For the purposes of an offence against subsection 474.25B(1):

(a) there is no fault element for the physical element described in

paragraph (a) of that subsection other than the fault elements

(however described), if any, for the underlying offence; and

(b) absolute liability applies to the physical element of

circumstance of the offence that the child has a mental

impairment; and

of the offence that the defendant is in a position of trust or

authority in relation to the child, or the child is otherwise

under the care, supervision or authority of the defendant.

Note 1:

For absolute liability, see section 6.2.

Note 2:

For strict liability, see section 6.1.

Note 3:

For a defence based on belief that the child did not have a mental

impairment, see section 474.29.

54 Subsection 474.28(9) of the Criminal Code

Omit "474.26 and 474.27", substitute "474.26, 474.27 and 474.27A".

55 Subsection 474.28(11) of the Criminal Code

Repeal the subsection.

56 Section 474.29 of the Criminal Code

Repeal the section, substitute:

Schedule 1 Amendments relating to sexual offences against children

Part 2 Amendments relating to child sex offences involving postal or similar services,

or carriage services

56 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

474.29 Defences to offences against this Subdivision

Offences involving sexual activity--belief that child at least 16

years of age

(1) It is a defence to a prosecution for an offence against

section 474.25A if the defendant proves that, at the time the sexual

activity was engaged in, he or she believed that the child was at

least 16 years of age.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving sexual activity with other participant--belief

that participant under 18 years of age

(2) It is a defence to a prosecution for an offence against subsection

474.25A(2) if the defendant proves that, at the time the sexual

activity was engaged in, he or she believed that the participant was

under 18 years of age.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Aggravated offence involving sexual activity--belief that child did

not have mental impairment

(3) It is a defence to a prosecution for an offence against subsection

474.25B(1) (as that subsection applies because of subparagraph

474.25B(1)(b)(i)) if the defendant proves that, at the time the

defendant committed the offence, he or she believed that the child

did not have a mental impairment.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Offences involving procuring or "grooming" person for sexual

activity with other participant--belief that participant under 18

years of age

(4) It is a defence to a prosecution for an offence against subsection

474.26(2) or (3) or 474.27(2) or (3) if the defendant proves that, at

the time the communication was transmitted, he or she believed

that the participant was under 18 years of age.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Amendments relating to sexual offences against children Schedule 1

Amendments relating to child sex offences involving postal or similar services, or

carriage services Part 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

Offences involving transmission of communication--belief that

recipient at least 16 years of age

(5) It is a defence to a prosecution for an offence against

section 474.26, 474.27 or 474.27A if the defendant proves that, at

the time the communication was transmitted, he or she believed

that the recipient was at least 16 years of age.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Trier of fact may take into account whether belief reasonable

(6) In determining whether the defendant had the belief mentioned in

one of the preceding subsections of this section, the trier of fact

may take into account whether the alleged belief was reasonable in

the circumstances.

57 After section 474.29 of the Criminal Code

Insert:

Subdivision G--Offences relating to use of carriage service for

suicide related material

58 Section 474.30 of the Criminal Code

Repeal the section.

59 Before section 475.1 of the Criminal Code

Insert:

475.1A Defences for NRS employees and emergency call persons

(1) A person is not criminally responsible for an offence against a

provision of Subdivision C, D, E, F or G of Division 474 in

relation to particular conduct if the person:

(a) is an employee of an NRS provider; and

(b) engages in the conduct in good faith in the course of the

person's duties as such an employee.

(2) A person is not criminally responsible for an offence against a

provision of Subdivision C, D, E, F or G of Division 474 in

relation to particular conduct if the person:

Schedule 1 Amendments relating to sexual offences against children

Part 2 Amendments relating to child sex offences involving postal or similar services,

or carriage services

58 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

(a) is an emergency call person; and

(b) engages in the conduct in good faith in the course of the

person's duties as such an emergency call person.

475.1B Provisions relating to element of offence that particular

conduct was engaged in using a carriage service

Presumption that conduct engaged in using carriage service

(1)

If:

(a) a physical element of an offence against Subdivision C, D, E

or F of Division 474 consists of a person using a carriage

service to engage in particular conduct; and

(b) the prosecution proves beyond reasonable doubt that the

person engaged in that particular conduct;

then it is presumed, unless the person proves to the contrary, that

the person used a carriage service to engage in that conduct.

Note:

A defendant bears a legal burden in relation to the matter in this

subsection, see section 13.4.

Absolute liability applies to physical element of offence that

carriage service was used

(2)

If:

(a) a physical element of an offence against Subdivision C, D, E

or F of Division 474 consists of a person using a carriage

service to engage in particular conduct; and

(b) the prosecution proves beyond reasonable doubt that the

person intended to engage in that particular conduct;

then absolute liability applies to the physical element of the offence

that a carriage service was used to engage in that particular

conduct.

Note:

For absolute liability, see section 6.2.

60 Dictionary in the Criminal Code

Insert:

make available, in relation to material, includes, but is not limited

to, describing how to obtain access, or describing methods that are

likely to facilitate access, to material (for example: by setting out

Schedule 1 Amendments relating to sexual offences against children

Part 3 Consequential amendments

60 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

Part 3--Consequential amendments

Australian Crime Commission Act 2002

61 Subsection 4(1) (paragraph (d) of the definition of serious

and organised crime)

After "Proceeds of Crime Act 2002,", insert "an offence against

Subdivision B or C of Division 471, or D or F of Division 474, of the

Criminal Code,".

Crimes Act 1914

62 Paragraph 15GE(2)(v)

Omit "child sex tourism", substitute "a sexual offence against a person

who is under 18 outside Australia".

63 Subsection 15GE(3)

Repeal the subsection, substitute:

(3) Without limiting subsections (1) and (2), an offence against one of

the following provisions of the Criminal Code is a serious

Commonwealth offence for the purposes of this Part:

(a) Part 5.3 (Terrorism);

(b) Subdivision B of Division 471 (Use of postal or similar

service for child pornography material or child abuse

material);

service involving sexual activity with person under 16);

(d) Subdivision D of Division 474 (Use of carriage service for

child pornography material or child abuse material);

(e) Subdivision F of Division 474 (Use of carriage service

involving sexual activity with person under 16).

64 Application

The amendments made by items 62 and 63 apply in relation to a

controlled operation authorised on or after the commencement of this

item, whether the offence was committed before, on or after that

commencement.

Amendments relating to sexual offences against children Schedule 1

Consequential amendments Part 3

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

65 Paragraph 15Y(1)(a)

Repeal the paragraph.

66 After paragraph 15Y(1)(caa)

Insert:

(cab) an offence against Division 272 of the Criminal Code (child

sex offences outside Australia); or

(cac) an offence against Division 273 of the Criminal Code

(offences involving child pornography material or child

abuse material outside Australia); or

67 Paragraph 15Y(1)(ca)

Repeal the paragraph, substitute:

(ca) an offence against Subdivision B or C of Division 471 of the

Criminal Code (offences relating to use of postal or similar

service involving sexual activity with person under 16); or

(cba) an offence against Subdivision D or F of Division 474 of the

Criminal Code (offences relating to use of carriage service

involving sexual activity with person under 16); or

68 Paragraph 15Y(1)(e)

Omit "paragraph (a), (b), (c), (caa) or (d)", substitute "one of the

preceding paragraphs of this subsection".

69 Paragraph 15Y(1)(f)

Omit "paragraph (a), (b), (c), (caa), (d) or (e)", substitute "one of the

preceding paragraphs of this subsection".

70 Section 15YT

Repeal the section, substitute:

15YT Video link evidence provisions relating to child sex offences

outside Australia unaffected

Nothing in this Part affects the operation of:

(a) Subdivision D of Division 272 of the Criminal Code (child

sex offences outside Australia--video link evidence); or

Schedule 1 Amendments relating to sexual offences against children

Part 3 Consequential amendments

62 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

(b) Subdivision D of Division 273 of the Criminal Code

(offences involving child pornography material or child

abuse material outside Australia--video link evidence).

71 Application

Despite the amendments made by items 65, 68, 69 and 70, sections 15Y

and 15YT of the Crimes Act 1914, as in force immediately before the

commencement of this item, continue to apply in relation to an offence

against Part IIIA of that Act, as in force before that commencement.

Surveillance Devices Act 2004

72 Subparagraph 30(1)(a)(iii)

Repeal the subparagraph.

73 Subparagraph 30(1)(a)(viii)

Omit "or 270", substitute ", 270, 272 or 273".

74 Application

Despite the amendment made by item 72, subparagraph 30(1)(a)(iii) of

the Surveillance Devices Act 2004, as in force immediately before the

commencement of this item, continues to apply in relation to an offence

against Part IIIA of the Crimes Act 1914, as in force at any time before

that commencement.

Telecommunications (Interception and Access) Act 1979

75 Subsection 5D(2A)

Repeal the subsection.

76 Subparagraph 5D(3)(d)(xi)

Omit "(including an offence against Part IIIA of the Crimes Act 1914)".

77 Subsection 5D(3B)

Repeal the subsection, substitute:

Sexual offences against children and offences involving child

pornography

(3B) An offence is also a serious offence if:

Amendments relating to sexual offences against children Schedule 1

Consequential amendments Part 3

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

(a) it is an offence against Division 272 or 273, Subdivision B or

C of Division 471, or Subdivision D or F of Division 474, of

the Criminal Code; or

(b) the particular conduct constituting the offence otherwise

involved, involves or would involve:

(i) the production, publication, possession, supply or sale

of, or other dealing in, child pornography; or

(ii) consenting to or procuring the employment of a child, or

employing a child, in connection with child

pornography.

78 Application

(1)

Subject to subitems (2) and (3), subsection 5D(3B) of the

Telecommunications (Interception and Access) Act 1979, as in force on

and after the commencement of this item, applies in relation to an

offence committed on or after that commencement.

(2)

Subsection 5D(3B) of the Telecommunications (Interception and

Access) Act 1979, as in force on and after the commencement of this

item, applies in relation to:

(a) an offence against section 474.19, 474.20, 474.22, 474.23,

474.26 or 474.27 of the Criminal Code; or

(b) an offence referred to in paragraph (b) of that subsection;

whether the offence was committed before, on or after that

commencement.

(3)

Paragraph 5D(3B)(a) of the Telecommunications (Interception and

Access) Act 1979, as in force on and after the commencement of this

item, is taken to include a reference to an offence against Part IIIA of

the Crimes Act 1914, as in force at any time before that commencement.

Schedule 2 Forfeiture of child sex material

64 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

Schedule 2--Forfeiture of child sex material

Crimes Act 1914

1 Subsection 3(1)

Insert:

child abuse material has the same meaning as in Part 10.6 of the

Criminal Code.

2 Subsection 3(1)

Insert:

child pornography material has the same meaning as in Part 10.6

of the Criminal Code.

3 Subsection 3(1)

Insert:

Commonwealth child sex offence means:

(a) an offence against any of the following provisions of the

Criminal Code:

(i) Division 272 (Child sex offences outside Australia);

(ii) Division 273 (Offences involving child pornography

material or child abuse material outside Australia);

(iii) Subdivisions B and C of Division 471 (which create

offences relating to use of postal or similar services in

connection with child pornography material, child abuse

material and sexual activity involving children);

(iv) Subdivisions D and F of Division 474 (which create

offences relating to use of telecommunications in

connection with child pornography material, child abuse

material and sexual activity involving children); or

(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal

Code that relates to an offence described in paragraph (a) of

this definition; or

this definition that is taken to have been committed because

of section 11.2, 11.2A or 11.3 of the Criminal Code.

Forfeiture of child sex material Schedule 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

Note:

Part IE also applies as if offences against certain other provisions in

force before the commencement of that Part were Commonwealth

child sex offences: see Schedule 2 to the Crimes Legislation

Amendment (Sexual Offences Against Children) Act 2010.

4 Subsection 3(1)

Insert:

data includes:

(a) information in any form; and

(b) any program (or part of a program).

5 Subsection 3(1)

Insert:

data storage device means a thing containing, or designed to

contain, data for use by a computer.

6 Subsection 3C(1) (definition of data)

Repeal the definition.

7 Subsection 3C(1) (definition of data storage device)

Repeal the definition.

8 After Part ID

Insert:

Part IE--Forfeiture of child pornography material

and child abuse material

Division 1--Things this Part applies to

23ZA Application

This Part applies to a thing (the forfeitable thing) that is:

(a) child abuse material; or

(b) child pornography material; or

child pornography material:

(i)

computer;

Schedule 2 Forfeiture of child sex material

66 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

(ii) a data storage device;

(iii) another piece of electronic equipment.

Division 2--Forfeiture by operation of law after notice is

given

23ZB Forfeiture of material by operation of law

Application

(1) This section applies if a constable reasonably believes that the

forfeitable thing is derived from, or was used in connection with,

the commission of a Commonwealth child sex offence.

Power to give forfeiture notice

(2) The constable may give a notice (the forfeiture notice) described

in subsection (3) to:

(a) a person who owns the forfeitable thing (either alone or with

other persons); or

(b) if the constable is unable, after reasonable inquiry, to identify

such a person:

(i) the person who possesses the thing; or

(ii) if the thing has been seized under a law of the

Commonwealth, a State, a Territory or a foreign

country--the person who would possess it apart from

that seizure.

Content of forfeiture notice

(3) The forfeiture notice is a notice that:

(a) identifies the forfeitable thing; and

(b) states the constable's belief that the thing is derived from, or

was used in connection with, the commission of a

Commonwealth child sex offence; and

30 days after the notice is given, unless any of the following

persons object to the forfeiture by written notice given before

the end of that period to the head of the police force that

includes the constable:

Forfeiture of child sex material Schedule 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

(i) a person who owns the thing (either alone or with other

persons);

(ii) a person who has a right to possess the thing; and

(d) explains the circumstances in which, under section 23ZC, a

person may be given a copy of parts of the thing, or of data

contained in the thing, on request to the head of the police

force made within 30 days after the notice is given; and

(e) explains the effect of forfeiture of the thing; and

(f) explains the circumstances in which compensation is payable

in connection with forfeiture of the thing; and

(g) requests a person claiming compensation for forfeiture of the

thing to notify the head of the police force of the claim.

Giving copy of forfeiture notice to others affected

(4) If the constable gives the forfeiture notice to a person described in

subsection (2), the constable may also give a copy of the notice to

anyone whom the constable reasonably believes will be directly or

indirectly affected by the proposed forfeiture of the forfeitable

thing.

Effect of giving forfeiture notice

(5) If there is not an objection described in paragraph (3)(c), the

forfeitable thing is forfeited to the Commonwealth (by force of this

subsection) at the end of the period described in that paragraph.

(6) If there is an objection described in paragraph (3)(c) but the head

of the police force that includes the constable considers that the

forfeitable thing should be forfeited to the Commonwealth despite

the objection:

(a) the head of the police force must instruct the Director of

Public Prosecutions to apply for an order under section 23ZD

for the forfeiture of the thing; and

(b) the Director must make the application.

Objection or lack of one does not affect prosecution

(7) Evidence of the fact that a person described in paragraph (3)(c)

objected or did not object as described in that paragraph is not

admissible against the person in a prosecution of the person for a

Commonwealth child sex offence.

Schedule 2 Forfeiture of child sex material

68 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

23ZC Providing copies of innocuous parts of material to be forfeited

(1) This section applies if:

(a) the forfeitable thing is identified in a forfeiture notice given

by a constable; and

(b) less than 30 days after the notice is given, a person who was

given the notice or who would be directly or indirectly

affected by the proposed forfeiture of the thing gives a

written request to the head of the police force that includes

the constable; and

thing, or of data contained in the thing, that:

(i) are specified in the request clearly enough to enable the

parts or data to be identified readily; and

(ii) are not child abuse material or child pornography

material.

(2) The head of the police force must comply with the request if he or

she is satisfied that it is reasonably practicable to do so.

(3) However, the head of the police force need not comply with the

request if he or she reasonably believes:

(a) that to do so might endanger the safety of anyone or

prejudice an investigation or prosecution; or

(b) that possession by the person of the copy could constitute an

offence against a law of the Commonwealth, a State or a

Territory.

(4)

If:

(a) the head of the police force complies with the request; and

(b) a court convicts the person of a Commonwealth child sex

offence and is satisfied on the balance of probabilities that

the forfeitable thing is derived from, or was used in

connection with, the commission of the offence;

the court may order the person to pay the Commonwealth, State or

Territory whose police force incurred costs in complying with the

request those costs.

Forfeiture of child sex material Schedule 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

Division 3--Forfeiture by court order on application

23ZD Forfeiture of material by court order on application

Court to order forfeiture on application if offence committed

(1) If, on application by the Director of Public Prosecutions to a court

of a State or Territory, the court is satisfied that a Commonwealth

child sex offence has been committed or that a person is or has

been convicted of a Commonwealth child sex offence (by the court

or another court), the court must order the forfeiture to the

Commonwealth of all the things that the court is satisfied:

(a) are forfeitable things derived from, or used in connection

with, the commission of the offence; and

(b) have not already become property of the Commonwealth.

Note 1:

It does not matter whether the Director of Public Prosecutions makes

the application on his or her own initiative or because of

section 23ZB.

Note 2:

It does not matter whether the court is satisfied in the course of

criminal proceedings or civil proceedings that the Commonwealth

child sex offence has been committed.

Notice of application

(2) The Director of Public Prosecutions must give written notice of the

application to anyone:

(a) who claims to own, or have a right to possess, a thing

covered by the application; or

(b) whom the Director reasonably believes would be directly or

indirectly affected by the proposed forfeiture.

Interim orders

(3) At any time after the application is made to the court, it may make

any interim orders it considers appropriate (such as orders relating

to the delivery or retention of things pending the court's decision

on the application, and orders relating to the making and provision

of copies of things).

Circumstances that do not prevent court ordering forfeiture

(4) An order under subsection (1):

Schedule 2 Forfeiture of child sex material

70 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

(a) may be made even if a person entitled to be given notice of

the application fails to appear at the hearing of the

application; and

(b) need not be based on a finding as to the commission of a

particular Commonwealth child sex offence; and

committed; and

(d) need not be based on a finding that a particular person

committed a Commonwealth child sex offence.

Court may order compensation for forfeiture

(5) The court may order the Commonwealth to pay a specified

reasonable amount of compensation to a person who owns, has a

right to possess or has other property in a thing whose forfeiture

the court orders if the thing is a computer, data storage device or

other electronic equipment and the court is satisfied that:

(a) the person has appeared at the hearing of the application; and

(b) the person did not commit, is not and has not been convicted

(by the court or another court) of, and has not been found by

another court in civil proceedings to have committed, the

Commonwealth child sex offence; and

relating to the Commonwealth child sex offence and has not

been the subject of such proceedings in connection with

which an appeal may still be lodged as of right; and

(d) the person is not the subject of an investigation into a

Commonwealth child sex offence of which the thing provides

evidence.

Standard of proof for forfeiture and compensation orders

(6) The standard of proof for subsections (1) and (5) is the balance of

probabilities.

Forfeiture of child sex material Schedule 2

Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No. , 2010

Division 4--Provisions relating to forfeiture under this

Part generally

23ZE Effect of forfeiture under this Part

(1) This section applies if a thing is forfeited to the Commonwealth

under this Part.

(2) When the thing is forfeited it becomes the property of the

Commonwealth.

(3) A constable may, without warrant, seize the thing.

(4) The Commissioner may deal with the thing in any way he or she

considers appropriate (including by destroying the thing).

(5) However, if the thing is in the custody of a constable who is a

member of a police force of a State or Territory, the head of the

police force may deal with the thing in any way he or she considers

appropriate (including by destroying the thing).

(6) Subsections (3), (4) and (5) have effect despite section 9.

23ZF Compensation for forfeiture of electronic equipment etc.

(1) This section applies to a person if:

(a) a thing that is a computer, data storage device or other

electronic equipment is forfeited under this Part; and

(b) the person owned, had a right to possess or had other

property in the thing immediately before the forfeiture.

(2) The Commonwealth is liable to pay the person a reasonable

amount of compensation for the forfeiture.

(3) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

court of competent jurisdiction of a State or Territory for the

recovery from the Commonwealth of such reasonable amount of

compensation as the court determines.

(4) However, the court is not to determine an amount of compensation

for the person while:

Schedule 2 Forfeiture of child sex material

72 Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 No.

, 2010

(a) the person is the subject of an investigation into a

Commonwealth child sex offence of which the thing provides

evidence; or

(b) the person is the subject of proceedings (other than those

under subsection (3)) relating to a Commonwealth child sex

offence from which the thing was allegedly derived or in

connection with which the thing was allegedly used; or

covered by paragraph (b).

(5) Subsection (2) does not apply if the person is or has been convicted

of, or found by a court in civil proceedings (including proceedings

under subsection (3)) to have committed, a Commonwealth child

sex offence to which the forfeiture relates.

23ZG Delegation by head of police force

The head of a police force (including the Commissioner) may, by

writing, delegate to a constable who is a member of the force all or

any of the head's powers, functions and duties under this Part.

9 Application of Part IE of the Crimes Act 1914

(1)

Part IE of the Crimes Act 1914 applies in relation to Commonwealth

child sex offences, whether the conduct constituting the offences

occurred before, on or after the commencement of that Part.

(2)

Part IE of the Crimes Act 1914 also applies in relation to the following

offences constituted by conduct that occurred before the

commencement of that Part as if they were Commonwealth child sex

offences:

(a) an offence against former Part IIIA of the Crimes Act 1914

(which was about child sex tourism);

(b) an offence against section 474.19, 474.20, 474.22, 474.23,

474.26 or 474.27 of the Criminal Code as in force before the

commencement of Schedule 1 to this Act;

Code relating to an offence described in paragraph (a) or (b)

of this subitem;

(d) an offence against a provision described in paragraph (a) or

(b) of this subitem taken to have been committed because of

section 11.2, 11.2A or 11.3 of the Criminal Code;

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (SEXUAL OFFENCES AGAINST CHILDREN) BILL 2010