2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Crimes Legislation Amendment (Child Sex Tourism Offences and Related Measures) Bill 2007 No. , 2007 (Justice and Customs) A Bill for an Act to amend the law relating to sexual offences against children, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendments 3 Australian Crime Commission Act 2002 3 Crimes Act 1914 3 Criminal Code Act 1995 7 Surveillance Devices Act 2004 29 Telecommunications (Interception and Access) Act 1979 30 [Page Break] 2 sexual offences against children, and for related 3 purposes 4 The Parliament of Australia enacts: 5 1 Short title 6 This Act may be cited as the Crimes Legislation Amendment (Child 7 Sex Tourism Offences and Related Measures) Act 2007. 8 2 Commencement 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Crimes Legislation Amendment (Child Sex Tourism Offences and Related Measures) Bill 2007 No. , 2007 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, The day on which this Act receives the item 1 Royal Assent. 3. Schedule 1, The 28th day after the day on which this Act items 2 to 21 receives the Royal Assent. 4. Schedule 1, The later of: item 22 (a) the start of the 28th day after the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of item 7 of Schedule 2 to the Telecommunications (Interception and Access) Amendment Act 2007. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 5. Schedule 1, The 28th day after the day on which this Act item 23 receives the Royal Assent. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. [Page Break] 2 Schedule 1--Amendments 3 4 Australian Crime Commission Act 2002 5 1 Subsection 4(1) (paragraph (d) of the definition of serious 6 and organised crime) 7 After "Proceeds of Crime Act 2002,", insert "an offence against 8 section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of the 9 Criminal Code,". 10 Crimes Act 1914 11 2 After section 9B 12 Insert: 13 10 Forfeiture of child abuse or child pornography material used in 14 commission of sexual offences against children 15 (1) If a court: 16 (a) convicts a person of an offence referred to in subsection (4); 17 or 18 (b) makes an order under section 19B in relation to a person 19 charged with such an offence; 20 the court must order the forfeiture to the Commonwealth of any of 21 the following that were used or otherwise involved in the 22 commission of the offence: 23 (c) child abuse material or child pornography material (within 24 the meaning of Part 10.6 of the Criminal Code); 25 (d) an article that contains such material. 26 Note: See sections 473.1 and 473.4 of the Criminal Code for the meanings 27 of child abuse material and child pornography material. 28 (2) If: 29 (a) a forfeiture application is made to a court (see section 11); 30 and 31 (b) the court is satisfied, on the balance of probabilities, that an 32 offence referred to in subsection (4) has been committed by a 33 person; [Page Break] 2 the following that were used or otherwise involved in the 3 commission of the offence: 4 (c) child abuse material or child pornography material (within 5 the meaning of Part 10.6 of the Criminal Code); 6 (d) an article that contains such material. 7 (3) A finding of the court for the purposes of subsection (2): 8 (a) need not be based on a finding that a particular person 9 committed any offence; and 10 (b) need not be based on a finding as to the commission of a 11 particular offence, and can be based on a finding that some 12 offence or other of a kind referred to in subsection (4) was 13 committed. 14 (4) For the purposes of this section, the offences are: 15 (a) an offence against section 474.19, 474.20, 474.22, 474.23, 16 474.26 or 474.27 of the Criminal Code; and 17 (b) an offence against Division 272 or 273 of the Criminal Code. 18 11 Applications for an order for forfeiture under subsection 10(2) 19 (1) An application (a forfeiture application) for an order under 20 subsection 10(2) may be made by the Director of Public 21 Prosecutions or a constable to the Federal Court of Australia, the 22 Federal Magistrates Court or a court of a State or Territory. 23 (2) A forfeiture application must be accompanied by an affidavit 24 dealing with the matters referred to in subsection 10(2). 25 (3) A person who makes a forfeiture application must give written 26 notice of the application to: 27 (a) any person who claims ownership of, or a right of custody or 28 control over, material or an article covered by the 29 application; and 30 (b) any person whom the applicant reasonably believes may have 31 ownership of, or a right of custody or control over, material 32 or an article covered by the application. 33 (4) A court to which a forfeiture application is made: [Page Break] 2 entitled to be given notice of the application fails to appear at 3 the hearing of the application; and 4 (b) may, at any time after the making of the application, make 5 any interim orders that it considers appropriate and, in 6 particular, orders relating to the delivery or retention of 7 things pending the decision of the court on the application. 8 12 Effect of forfeiture under section 10 9 (1) Material or an article forfeited to the Commonwealth under 10 section 10 becomes the property of the Commonwealth. 11 (2) A constable may, without warrant, seize material or an article that 12 is forfeited to the Commonwealth under section 10. 13 (3) If material or an article is forfeited to the Commonwealth under 14 section 10: 15 (a) the material or article must be retained until the later of the 16 following times: 17 (i) 3 months after the article is forfeited; 18 (ii) the time when the Commissioner is satisfied that the 19 material will not be required in an investigation or 20 proceedings under a law of the Commonwealth or of a 21 State or Territory; and 22 (b) after the later of the times referred to in paragraph (a), the 23 Commissioner may deal with the material or article in any 24 way the Commissioner considers appropriate, including, but 25 not limited to, by destroying the material or article. 26 12A Copies of articles forfeited under section 10 27 (1) This section applies to a person who is the owner of, or has a right 28 of custody or control over, an article that is forfeited to the 29 Commonwealth under section 10. 30 (2) If the article is in the custody, possession or control of a 31 Commonwealth officer, the officer must, on request by the person, 32 give the person a copy of so much of the article, or so much of the 33 information contained in the article, as: 34 (a) can readily be copied; and [Page Break] 2 material for the purposes of section 10. 3 (3) The Commonwealth officer need not comply with subsection (2) if 4 he or she believes on reasonable grounds that to do so might: 5 (a) endanger the safety of a person; or 6 (b) prejudice an investigation or prosecution. 7 12B Compensation for articles forfeited under section 10 8 (1) This section applies to a person: 9 (a) who is the owner of, or has a right of custody or control over, 10 an article that is forfeited to the Commonwealth under 11 section 10; and 12 (b) who is not: 13 (i) a person convicted of the offence to which the forfeiture 14 relates; or 15 (ii) a person in relation to whom an order was made under 16 section 19B in relation to the offence to which the 17 forfeiture relates. 18 (2) If the article is electronic equipment or a data storage device, the 19 Commonwealth is liable to pay a reasonable amount of 20 compensation to the person in relation to the replacement of the 21 article. 22 (3) If the Commonwealth and the person do not agree on the amount 23 of the compensation, the person may institute proceedings in a 24 court of competent jurisdiction for the recovery from the 25 Commonwealth of such reasonable amount of compensation as the 26 court determines. 27 (4) In this section: 28 data storage device means a thing containing, or designed to 29 contain, data for use by a computer. 30 3 Paragraph 15Y(1)(a) 31 Repeal the paragraph. 32 4 After paragraph 15Y(1)(caa) 33 Insert: [Page Break] 2 sex offences outside Australia); or 3 (cac) an offence against Division 273 of the Criminal Code 4 (offences involving child pornography material or child 5 abuse material outside Australia); or 6 5 Paragraph 15Y(1)(e) 7 Omit "paragraph (a), (b), (c), (caa) or (d)", substitute "paragraph (b), 8 (c), (caa), (cab), (cac) or (d)". 9 6 Paragraph 15Y(1)(f) 10 Omit "paragraph (a), (b), (c), (caa), (d) or (e)", substitute 11 "paragraph (b), (c), (caa), (cab), (cac), (d) or (e)". 12 7 Section 15YT 13 Repeal the section, substitute: 14 15YT Video link evidence provisions relating to child sex offences 15 outside Australia unaffected 16 Nothing in this Part affects the operation of: 17 (a) Subdivision D of Division 272 of the Criminal Code (child 18 sex offences outside Australia--video link evidence); or 19 (b) Subdivision D of Division 273 of the Criminal Code 20 (offences involving child pornography material or child 21 abuse material outside Australia--video link evidence). 22 8 Part IIIA 23 Repeal the Part. 24 Criminal Code Act 1995 25 9 At the end of Chapter 8 of the Criminal Code 26 Add: [Page Break] 2 Subdivision A--Preliminary 3 272.1 Definitions 4 In this Division: 5 act of indecency has the meaning given by section 272.2. 6 induce means induce by threats, promises or otherwise. 7 offence, in the case of a reference to an offence against this 8 Division or against a particular provision of it, has a meaning 9 affected by section 272.4. 10 sexual intercourse has the meaning given by section 272.3. 11 272.2 Meaning of act of indecency 12 (1) In this Code, act of indecency means an act that: 13 (a) is of a sexual nature; and 14 (b) involves the human body, or bodily actions or functions; and 15 (c) is so unbecoming or offensive that it amounts to a gross 16 breach of ordinary contemporary standards of decency and 17 propriety in the Australian community. 18 (2) To avoid doubt, act of indecency includes an indecent assault. 19 272.3 Meaning of sexual intercourse 20 (1) In this Code, sexual intercourse means: 21 (a) the penetration, to any extent, of the vagina or anus of a 22 person by any part of the body of another person; or 23 (b) the penetration, to any extent, of the vagina or anus of a 24 person, carried out by another person by an object; or 25 (c) fellatio; or 26 (d) cunnilingus; or 27 (e) the continuation of any activity mentioned in paragraph (a), 28 (b), (c) or (d). [Page Break] 2 penetration that: 3 (a) is carried out for a proper medical or hygienic purpose; or 4 (b) is carried out for a proper law enforcement purpose. 5 (3) For the purposes of this section, vagina includes: 6 (a) any part of a female person's genitalia; and 7 (b) a surgically constructed vagina. 8 272.4 Extension of criminal responsibility 9 (1) A reference in this Division (except section 272.16) to an offence 10 against this Division or against a particular provision of it includes: 11 (a) a reference to: 12 (i) an offence against section 6 of the Crimes Act 1914; or 13 (ii) an offence against section 11.1, 11.5 or 272.16 of this 14 Code; 15 that relates to an offence against this Division or against that 16 provision of it; and 17 (b) a reference to an offence against this Division, or against that 18 provision of it, because of section 11.2 or 11.3. 19 (2) A reference in section 272.16 to an offence against this Division or 20 against a particular provision of it does not include a reference to 21 such an offence because of section 11.2. 22 (3) Section 11.1 does not apply to an offence against section 272.11, 23 272.12 or 272.17. 24 (4) Section 11.4 does not apply to an offence against this Division. 25 (5) Section 11.5 does not apply to an offence against section 272.16. 26 272.5 Who can be prosecuted for an offence committed overseas 27 A person must not be charged with an offence against this Division 28 that the person allegedly committed outside Australia unless, at the 29 time of the offence, the person was: 30 (a) an Australian citizen; or 31 (b) a resident of Australia; or 32 (c) a body corporate incorporated by or under a law of the 33 Commonwealth or of a State or Territory; or [Page Break] 2 principally in Australia. 3 272.6 Saving of other laws 4 This Division is not intended to exclude or limit the operation of 5 any other law of the Commonwealth or any law of a State or 6 Territory. 7 Subdivision B--Sexual offences against children overseas 8 272.7 Sexual intercourse with person under 16 9 (1) A person commits an offence if: 10 (a) the person engages in sexual intercourse with another person; 11 and 12 (b) the other person is under 16; and 13 (c) the sexual intercourse is engaged in outside Australia. 14 Penalty: Imprisonment for 17 years. 15 (2) Absolute liability applies to paragraphs (1)(b) and (c). 16 Note 1: For absolute liability, see section 6.2. 17 Note 2: For a defence based on belief about age, see section 272.13. 18 272.8 Inducing person under 16 to engage in sexual intercourse 19 (1) A person (the first person) commits an offence if: 20 (a) the first person induces a second person to engage in sexual 21 intercourse with a third person in the presence of the first 22 person; and 23 (b) the second person is under 16; and 24 (c) the sexual intercourse is engaged in outside Australia. 25 Penalty: Imprisonment for 17 years. 26 (2) Absolute liability applies to paragraphs (1)(b) and (c). 27 Note 1: For absolute liability, see section 6.2. 28 Note 2: For a defence based on belief about age, see section 272.13. [Page Break] 2 (1) A person commits an offence if: 3 (a) the person commits an act of indecency on another person; 4 and 5 (b) the other person is under 16; and 6 (c) the act is committed outside Australia. 7 Penalty: Imprisonment for 15 years. 8 (2) A person commits an offence if: 9 (a) the person submits to an act of indecency committed by 10 another person; and 11 (b) the other person is under 16; and 12 (c) the act is committed outside Australia. 13 Penalty: Imprisonment for 15 years. 14 (3) A person (the first person) commits an offence if: 15 (a) the first person commits an act of indecency; and 16 (b) the act of indecency is committed in the presence of another 17 person; and 18 (c) the first person intends to derive gratification from the other 19 person's presence during the act; and 20 (d) the other person is under 16; and 21 (e) the act is committed outside Australia. 22 Penalty: Imprisonment for 15 years. 23 (4) A person (the first person) commits an offence if: 24 (a) the first person submits to an act of indecency committed by 25 a second person; and 26 (b) the act of indecency is committed in the presence of a third 27 person; and 28 (c) the first person intends to derive gratification from the third 29 person's presence during the act; and 30 (d) the third person is under 16; and 31 (e) the act is committed outside Australia. 32 Penalty: Imprisonment for 15 years. 33 (5) A person (the first person) commits an offence if: [Page Break] 2 person; and 3 (b) the sexual intercourse is engaged in in the presence of a third 4 person; and 5 (c) the first person intends to derive gratification from the third 6 person's presence during the sexual intercourse; and 7 (d) the third person is under 16; and 8 (e) the sexual intercourse is engaged in outside Australia. 9 Penalty: Imprisonment for 15 years. 10 (6) Absolute liability applies to paragraphs (1)(b) and (c), (2)(b) and 11 (c), (3)(d) and (e), (4)(d) and (e) and (5)(d) and (e). 12 Note 1: For absolute liability, see section 6.2. 13 Note 2: For a defence based on belief about age, see section 272.13. 14 (7) For the purposes of an offence against subsection (1), (2), (3) or 15 (4), absolute liability applies to the physical element of 16 circumstance that the act of indecency referred to in that subsection 17 is in fact an act of indecency. 18 Note: For absolute liability, see section 6.2. 19 272.10 Inducing person under 16 to be involved in sexual conduct 20 (1) A person (the first person) commits an offence if: 21 (a) the first person induces a second person to commit, to submit 22 to, or to be present while a third person commits, an act of 23 indecency in the presence of the first person; and 24 (b) the second person is under 16; and 25 (c) the act is committed: 26 (i) outside Australia; and 27 (ii) by or on a person other than the first person. 28 Penalty: Imprisonment for 15 years. 29 (2) A person (the first person) commits an offence if: 30 (a) the first person induces a second person to be present while a 31 third and fourth person engage in sexual intercourse in the 32 presence of the first and second persons; and 33 (b) the second person is under 16; and 34 (c) the sexual intercourse is engaged in outside Australia. [Page Break] 2 (3) Absolute liability applies to paragraph (1)(b), 3 subparagraph (1)(c)(i) and paragraphs (2)(b) and (c). 4 Note 1: For absolute liability, see section 6.2. 5 Note 2: For a defence based on belief about age, see section 272.13. 6 (4) For the purposes of an offence against subsection (1), absolute 7 liability applies to the physical element of circumstance of the 8 offence that the act of indecency referred to in that subsection is in 9 fact an act of indecency. 10 Note: For absolute liability, see section 6.2. 11 272.11 Engaging in conduct to procure persons under 16 years of 12 age 13 (1) A person (the first person) commits an offence if: 14 (a) the first person engages in conduct in relation to a second 15 person; and 16 (b) the first person does so with the intention of procuring the 17 second person: 18 (i) to engage in, or submit to, sexual activity with the first 19 person outside Australia; or 20 (ii) to be present while the first person engages in, or 21 submits to, sexual activity outside Australia; and 22 (c) the second person is someone: 23 (i) who is under 16; or 24 (ii) who the first person believes to be under 16; and 25 (d) any of the following apply: 26 (i) the conduct referred to in paragraph (a) occurs wholly or 27 partly outside Australia; 28 (ii) the second person is outside Australia when the conduct 29 referred to in paragraph (a) occurs; 30 (iii) the conduct referred to in paragraph (a) occurs wholly in 31 Australia and the second person is in Australia when 32 that conduct occurs. 33 Penalty: Imprisonment for 15 years. 34 (2) A person (the first person) commits an offence if: [Page Break] 2 person; and 3 (b) the first person does so with the intention of procuring the 4 second person: 5 (i) to engage in, or submit to, sexual activity with a third 6 person outside Australia; or 7 (ii) to be present with the first person while a third person 8 engages in, or submits to, sexual activity (other than 9 with the first or second person) outside Australia; and 10 (c) the second person is someone: 11 (i) who is under 16; or 12 (ii) who the first person believes to be under 16; and 13 (d) any of the following apply: 14 (i) the conduct referred to in paragraph (a) occurs wholly or 15 partly outside Australia; 16 (ii) the second person is outside Australia when the conduct 17 referred to in paragraph (a) occurs; 18 (iii) the conduct referred to in paragraph (a) occurs wholly in 19 Australia and the second person is in Australia when 20 that conduct occurs. 21 Penalty: Imprisonment for 15 years. 22 (3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) 23 and paragraphs (1)(d) and (2)(d). 24 Note 1: For absolute liability, see section 6.2. 25 Note 2: For a defence based on belief about age, see section 272.13. 26 (4) A person may be found guilty of an offence against subsection (1) 27 or (2) even if it is impossible for the sexual activity referred to in 28 that subsection to take place. 29 (5) For the purposes of subsection (1) or (2), it does not matter that the 30 second person is a fictitious person represented to the first person 31 as a real person. 32 272.12 Engaging in conduct to "groom" persons under 16 years of 33 age 34 (1) A person (the first person) commits an offence if: [Page Break] 2 person; and 3 (b) the first person does so with the intention of making it easier 4 to procure the second person: 5 (i) to engage in, or submit to, sexual activity with the first 6 person outside Australia; or 7 (ii) to be present while the first person engages in, or 8 submits to, sexual activity outside Australia; and 9 (c) the second person is someone: 10 (i) who is under 16; or 11 (ii) who the first person believes to be under 16; and 12 (d) any of the following apply: 13 (i) the conduct referred to in paragraph (a) occurs wholly or 14 partly outside Australia; 15 (ii) the second person is outside Australia when the conduct 16 referred to in paragraph (a) occurs; 17 (iii) the conduct referred to in paragraph (a) occurs wholly in 18 Australia and the second person is in Australia when 19 that conduct occurs. 20 Penalty: Imprisonment for 12 years. 21 (2) A person (the first person) commits an offence if: 22 (a) the first person engages in conduct in relation to a second 23 person; and 24 (b) the first person does so with the intention of making it easier 25 to procure the second person: 26 (i) to engage in, or submit to, sexual activity with a third 27 person outside Australia; or 28 (ii) to be present with the first person while a third person 29 engages in, or submits to, sexual activity (other than 30 with the first or second person) outside Australia; and 31 (c) the second person is someone: 32 (i) who is under 16; or 33 (ii) who the first person believes to be under 16; and 34 (d) any of the following apply: 35 (i) the conduct referred to in paragraph (a) occurs wholly or 36 partly outside Australia; [Page Break] 2 referred to in paragraph (a) occurs; 3 (iii) the conduct referred to in paragraph (a) occurs wholly in 4 Australia and the second person is in Australia when 5 that conduct occurs. 6 Penalty: Imprisonment for 12 years. 7 (3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) 8 and paragraphs (1)(d) and (2)(d). 9 Note 1: For absolute liability, see section 6.2. 10 Note 2: For a defence based on belief about age, see section 272.13. 11 (4) A person may be found guilty of an offence against subsection (1) 12 or (2) even if it is impossible for the sexual activity referred to in 13 that subsection to take place. 14 (5) For the purposes of subsection (1) or (2), it does not matter that the 15 second person is a fictitious person represented to the first person 16 as a real person. 17 272.13 Defence based on belief about age 18 (1) Section 272.7, 272.8, 272.9 or 272.10 does not apply if, at the time 19 of the sexual intercourse or act of indecency, the defendant 20 believed that the person referred to in that section as being under 21 16 was 16 or over. 22 Note: A defendant bears an evidential burden in relation to the matter in this 23 subsection (see subsection 13.3(3)). 24 (2) Section 272.11 or 272.12 does not apply if, at the time the 25 defendant engaged in the conduct constituting the offence, he or 26 she believed that the person referred to in that subsection as being 27 under 16 was 16 or over. 28 Note: A defendant bears an evidential burden in relation to the matter in this 29 subsection (see subsection 13.3(3)). 30 (3) In determining whether the defendant had the belief mentioned in 31 subsection (1) or (2), the jury may take into account whether the 32 alleged belief was reasonable in the circumstances. [Page Break] 2 (1) Section 272.7 or 272.9 does not apply if the defendant proves that: 3 (a) at the time of the sexual intercourse or act of indecency, there 4 existed between the defendant and the person referred to in 5 that section as being under 16 a marriage that was valid, or 6 recognised as valid, under the law of: 7 (i) the place where the marriage was solemnised; or 8 (ii) the place where the offence was allegedly committed; or 9 (iii) the place of the defendant's residence or domicile; and 10 (b) when it was solemnised, the marriage was genuine. 11 Note: A defendant bears a legal burden in relation to the matters in this 12 subsection (see section 13.4). 13 (2) Subsection 272.11(1) or 272.12(1) does not apply if the defendant 14 proves that: 15 (a) at the time he or she allegedly engaged in the conduct 16 constituting the offence against that subsection, there existed 17 between the defendant and the person referred to in that 18 subsection as being under 16 a marriage that was valid, or 19 recognised as valid, under the law of: 20 (i) the place where the marriage was solemnised; or 21 (ii) the place where the offence was allegedly committed; or 22 (iii) the place of the defendant's residence or domicile; and 23 (b) when it was solemnised, the marriage was genuine. 24 Note: A defendant bears a legal burden in relation to the matters in this 25 subsection (see section 13.4). 26 Subdivision C--Offences of benefiting from, encouraging or 27 preparing to commit sexual offences against children 28 overseas 29 272.15 Benefiting from offence against this Division 30 (1) A person commits an offence if: 31 (a) the person engages in conduct; and 32 (b) the person does so with the intention of benefiting from 33 conduct of a kind that would constitute an offence against 34 this Division; and [Page Break] 2 benefiting from conduct of a kind that would constitute an 3 offence against this Division. 4 Penalty: Imprisonment for 17 years. 5 (2) Subsection (1) applies: 6 (a) whether the conduct is engaged in within or outside 7 Australia; and 8 (b) whether or not the person intends to benefit financially from 9 conduct of a kind that would constitute an offence against 10 this Division; and 11 (c) whether or not conduct of a kind that would constitute an 12 offence against this Division in fact occurs or has occurred. 13 (3) Absolute liability applies to paragraph (1)(c). 14 Note: For absolute liability, see section 6.2. 15 272.16 Encouraging offence against this Division 16 (1) A person commits an offence if: 17 (a) the person engages in conduct; and 18 (b) the person does so with the intention of encouraging conduct 19 of a kind that would constitute an offence against this 20 Division (other than this section or section 272.17); and 21 (c) the conduct is reasonably capable of encouraging conduct of 22 a kind that would constitute an offence against this Division 23 (other than this section or section 272.17). 24 Penalty: Imprisonment for 17 years. 25 Note: These are examples of conduct covered by paragraph (1)(c): 26 (a) assisting a person to travel outside Australia in order to commit 27 an act that would constitute an offence against Subdivision B; 28 (b) advertising an offer to assist a person, or an arrangement for 29 assisting a person, as mentioned in paragraph (a). 30 (2) Subsection (1) applies: 31 (a) whether the conduct is engaged in within or outside 32 Australia; and 33 (b) whether or not conduct of a kind that would constitute an 34 offence against this Division in fact occurs or has occurred. [Page Break] 2 Note: For absolute liability, see section 6.2. 3 (4) In this section encourage means: 4 (a) encourage, incite to, or urge, by any means whatever, 5 (including by a written, electronic or other form of 6 communication); or 7 (b) aid, facilitate, or contribute to, in any way whatever. 8 272.17 Preparing to commit offence against this Division 9 (1) A person commits an offence if the person does any act in 10 preparation for, or planning, conduct of a kind that would 11 constitute an offence against section 272.7, 272.8, or 272.15. 12 Penalty: Imprisonment for 17 years. 13 Note: An example of an act that would constitute an offence against 14 subsection (1) is booking an airline ticket to travel outside Australia in 15 preparation for engaging in sexual intercourse with a person who is 16 under 16 while outside Australia. 17 (2) A person commits an offence if the person does any act in 18 preparation for, or planning, conduct of a kind that would 19 constitute an offence against section 272.9 or 272.10. 20 Penalty: Imprisonment for 15 years. 21 Note: An example of an act that would constitute an offence against 22 subsection (3) is booking an airline ticket to travel outside Australia in 23 planning to commit an act of indecency on a person who is under 16 24 while outside Australia. 25 (3) A person commits an offence under subsection (1) or (2) even if: 26 (a) conduct of a kind that would constitute the offence referred 27 to in that subsection does not occur; or 28 (b) the person's act is not done in preparation for, or planning, 29 specific conduct of a kind that would constitute the offence 30 referred to in that subsection; or 31 (c) the person's act is done in preparation for, or planning, more 32 than one course of conduct of a kind that would constitute the 33 offence referred to in that subsection. [Page Break] 2 272.18 When court may take evidence by video link 3 In a proceeding for an offence against this Division, the court may, 4 on application by a party to the proceeding, direct that a witness 5 give evidence by video link if: 6 (a) the witness will give the evidence from outside Australia; and 7 (b) the witness is not a defendant in the proceeding; and 8 (c) the facilities required by section 272.19 are available or can 9 reasonably be made available; and 10 (d) the court is satisfied that attendance of the witness at the 11 court to give the evidence would: 12 (i) cause unreasonable expense or inconvenience; or 13 (ii) cause the witness psychological harm or unreasonable 14 distress; or 15 (iii) cause the witness to become so intimidated or distressed 16 that his or her reliability as a witness would be 17 significantly reduced; and 18 (e) the court is satisfied that it is consistent with the interests of 19 justice that the evidence be taken by video link. 20 272.19 Technical requirements for video link 21 (1) A witness can give evidence under a direction only if: 22 (a) the courtroom or other place in Australia where the court is 23 sitting (the Australian location); and 24 (b) the place where the evidence is given (the overseas location); 25 are equipped with video facilities that: 26 (c) enable appropriate persons at the Australian location to see 27 and hear the witness give the evidence; and 28 (d) enable appropriate persons at the overseas location to see and 29 hear appropriate persons at the Australian location. 30 (2) In subsection (1): 31 appropriate persons means such persons as the court considers 32 appropriate. [Page Break] 2 A person who gives evidence under a direction is taken to give it at 3 the courtroom or other place in Australia where the court is sitting. 4 Note: This section has effect, for example, for the purposes of laws relating 5 to evidence, procedure, contempt of court and perjury. 6 272.21 Administration of oaths and affirmations 7 An oath or affirmation to be sworn or made by a witness who is to 8 give evidence under a direction may be administered either: 9 (a) by means of the video link, in as nearly as practicable the 10 same way as if the witness were to give the evidence at the 11 courtroom or other place in Australia where the court is 12 sitting; or 13 (b) as follows: 14 (i) on behalf of the court and as directed by it; 15 (ii) by a person (whether an Australian official or not) 16 authorised by the court; 17 (iii) at the place where the witness is to give the evidence. 18 272.22 Expenses 19 A court may make such orders as are just for payment of expenses 20 incurred in connection with giving evidence under a direction by 21 the court under this Subdivision. 22 272.23 Other laws about foreign evidence not affected 23 This Subdivision does not prevent any other law about taking 24 evidence of a witness outside Australia from applying for the 25 purposes of a proceeding for an offence against this Division. 26 Subdivision E--Other rules about conduct of trials 27 272.24 Evidence relating to a person's age 28 (1) For the purposes of this Division, evidence that a person was 29 represented to the defendant as being under or of a particular age 30 is, in the absence of evidence to the contrary, proof that the 31 defendant believed that person to be under or of that age. [Page Break] 2 is under 16, or was under 16 at a particular time, or how old a 3 person is or was at a particular time, a jury or court may treat any 4 of the following as admissible evidence: 5 (a) the person's appearance; 6 (b) medical or other scientific opinion; 7 (c) a document that is or appears to be an official or medical 8 record from a country outside Australia; 9 (d) a document that is or appears to be a copy of such a record. 10 (3) Subsection (2) does not make any other kind of evidence 11 inadmissible, and does not affect a prosecutor's duty to do all he or 12 she can to adduce the best possible evidence for determining the 13 question. 14 (4) If, on a trial for an offence against this Division, evidence may be 15 treated as admissible because of subsection (2), the court must 16 warn the jury that it must be satisfied beyond reasonable doubt in 17 determining the question. 18 272.25 Alternative verdicts 19 (1) If, on a trial for an offence against section 272.7, the jury is not 20 satisfied that the defendant is guilty of the offence, but is satisfied 21 that he or she is guilty of an offence against section 272.9, it may 22 find the defendant not guilty of the offence against section 272.7 23 but guilty of the offence against section 272.9. 24 (2) If, on a trial for an offence against section 272.8, the jury is not 25 satisfied that the defendant is guilty of the offence, but is satisfied 26 that he or she is guilty of an offence against subsection 272.10(1), 27 it may find the defendant not guilty of the offence against 28 section 272.8 but guilty of the offence against subsection 29 272.10(1). 30 272.26 Double jeopardy 31 If a person has been convicted or acquitted in a country outside 32 Australia of an offence against the law of that country in respect of 33 any conduct, the person cannot be convicted of an offence against 34 this Division in respect of that conduct. [Page Break] 2 (1) In determining the sentence to be passed, or the order to be made, 3 in respect of a person for an offence against Subdivision B, the 4 court must take into account the age and maturity of the person in 5 relation to whom the offence was committed, so far as these 6 matters are relevant and known to the court. 7 (2) The matters mentioned in subsection (1) are in addition to any 8 other matters the court must take into account (for example, the 9 matters mentioned in subsection 16A(2) of the Crimes Act 1914). 10 Division 273--Offences involving child pornography 11 material or child abuse material outside Australia 12 Subdivision A--Preliminary 13 273.1 Definitions 14 (1) Subject to subsections (2) and (3), an expression used in this 15 Division that is defined in Part 10.6 has the same meaning in this 16 Division as it has in that Part. 17 Note: These expressions include child abuse material and child 18 pornography material. 19 (2) A reference in this Division to a person having possession or 20 control of material includes a reference to the person: 21 (a) having possession of a computer or data storage device that 22 holds or contains the material; or 23 (b) having possession of a document in which the material is 24 recorded; or 25 (c) having control of material held in a computer that is in the 26 possession of another person (whether inside or outside 27 Australia). 28 (3) A reference in this Division to a person producing, distributing, or 29 obtaining material includes a reference to the person: 30 (a) producing, distributing or obtaining material held or 31 contained in a computer or data storage device; or 32 (b) producing, distributing or obtaining a document in which the 33 material is recorded. [Page Break] 2 in that section to Part 10.6 were a reference to this Division. 3 Note: Section 473.4 sets out matters that may be taken into account in 4 deciding whether particular material is offensive. 5 273.2 Who can be prosecuted for an offence committed overseas 6 A person must not be charged with an offence against this Division 7 that the person allegedly committed outside Australia unless, at the 8 time of the offence, the person was: 9 (a) an Australian citizen; or 10 (b) a resident of Australia; or 11 (c) a body corporate incorporated by or under a law of the 12 Commonwealth or of a State or Territory; or 13 (d) any other body corporate that carries on its activities 14 principally in Australia. 15 273.3 Double jeopardy 16 If a person has been convicted or acquitted in a country outside 17 Australia of an offence against the law of that country in respect of 18 any conduct, the person cannot be convicted of an offence against 19 this Division in respect of that conduct. 20 273.4 Saving of other laws 21 This Division is not intended to exclude or limit the operation of 22 any other law of the Commonwealth or any law of a State or 23 Territory. 24 Subdivision B--Offences committed overseas involving child 25 pornography material or child abuse material 26 273.5 Possessing, controlling, producing, distributing or obtaining 27 child pornography material outside Australia 28 (1) A person commits an offence if: 29 (a) the person: 30 (i) has possession or control of material; or 31 (ii) produces, distributes or obtains material; or 32 (iii) facilitates the production or distribution of material; and [Page Break] 2 (c) the conduct referred to in paragraph (a) occurs outside 3 Australia. 4 Penalty: Imprisonment for 10 years. 5 (2) Absolute liability applies to paragraph (1)(c). 6 Note: For absolute liability, see section 6.2. 7 273.6 Possessing, controlling, producing, distributing or obtaining 8 child abuse material outside Australia 9 (1) A person commits an offence if: 10 (a) the person: 11 (i) has possession or control of material; or 12 (ii) produces, distributes or obtains material; or 13 (iii) facilitates the production or distribution of material; and 14 (b) the material is child abuse material; and 15 (c) the conduct referred to in paragraph (a) occurs outside 16 Australia. 17 Penalty: Imprisonment for 10 years. 18 (2) Absolute liability applies to paragraph (1)(c). 19 Note: For absolute liability, see section 6.2. 20 Subdivision C--Defences 21 273.7 Defences to offences against this Division 22 (1) A person is not criminally responsible for an offence against 23 section 273.5 or 273.6 because of engaging in particular conduct if 24 the conduct: 25 (a) is of public benefit; and 26 (b) does not extend beyond what is of public benefit. 27 In determining whether the person is, under this subsection, not 28 criminally responsible for the offence, the question whether the 29 conduct is of public benefit is a question of fact and the person's 30 motives in engaging in the conduct are irrelevant. 31 Note: A defendant bears an evidential burden in relation to the matter in this 32 subsection (see subsection 13.3(3)). [Page Break] 2 and only if, the conduct is necessary for or of assistance in: 3 (a) enforcing a law of the Commonwealth, a State or Territory, 4 or a foreign country; or 5 (b) monitoring compliance with, or investigating a contravention 6 of, a law of the Commonwealth, a State or Territory or a 7 foreign country; or 8 (c) the administration of justice (whether within or outside 9 Australia); or 10 (d) conducting scientific, medical or educational research. 11 (3) Paragraph (2)(d) only applies if the person's conduct was, in all the 12 circumstances, reasonable having regard to the purpose mentioned 13 in that paragraph. 14 (4) A person is not criminally responsible for an offence against 15 section 273.5 or 273.6 if: 16 (a) the person is, at the time of the offence: 17 (i) a law enforcement officer; or 18 (ii) an intelligence or security officer; or 19 (iii) an officer or employee of the government of a foreign 20 country performing similar duties to an intelligence or 21 security officer; and 22 (b) the person is acting in the course of his or her duties; and 23 (c) the conduct of the person is reasonable in the circumstances 24 for the purpose of performing that duty. 25 Note: A defendant bears an evidential burden in relation to the matter in this 26 subsection (see subsection 13.3(3)). 27 (5) A person is not criminally responsible for an offence against 28 section 273.5 or 273.6 if the person engages in the conduct in good 29 faith for the sole purpose of: 30 (a) assisting the Australian Communications and Media 31 Authority to detect: 32 (i) prohibited content (within the meaning of Schedule 7 to 33 the Broadcasting Services Act 1992); or 34 (ii) potential prohibited content (within the meaning of that 35 Schedule); 36 in the performance of the Authority's functions under 37 Schedule 5 or Schedule 7 to that Act; or [Page Break] 2 technology (including software) in accordance with: 3 (i) a recognised alternative access-prevention arrangement 4 (within the meaning of clause 40 of Schedule 5 to the 5 Broadcasting Services Act 1992); or 6 (ii) a designated alternative access-prevention arrangement 7 (within the meaning of clause 60 of that Schedule). 8 Note: A defendant bears an evidential burden in relation to the matter in this 9 subsection (see subsection 13.3(3)). 10 Subdivision D--Video link evidence 11 273.8 When court may take evidence by video link 12 In a proceeding for an offence against this Division, the court may, 13 on application by a party to the proceeding, direct that a witness 14 give evidence by video link if: 15 (a) the witness will give the evidence from outside Australia; and 16 (b) the witness is not a defendant in the proceeding; and 17 (c) the facilities required by section 273.9 are available or can 18 reasonably be made available; and 19 (d) the court is satisfied that attendance of the witness at the 20 court to give the evidence would: 21 (i) cause unreasonable expense or inconvenience; or 22 (ii) cause the witness psychological harm or unreasonable 23 distress; or 24 (iii) cause the witness to become so intimidated or distressed 25 that his or her reliability as a witness would be 26 significantly reduced; and 27 (e) the court is satisfied that it is consistent with the interests of 28 justice that the evidence be taken by video link. 29 273.9 Technical requirements for video link 30 (1) A witness can give evidence under a direction only if: 31 (a) the courtroom or other place in Australia where the court is 32 sitting (the Australian location); and 33 (b) the place where the evidence is given (the overseas location); 34 are equipped with video facilities that: [Page Break] 2 and hear the witness give the evidence; and 3 (d) enable appropriate persons at the overseas location to see and 4 hear appropriate persons at the Australian location. 5 (2) In subsection (1): 6 appropriate persons means such persons as the court considers 7 appropriate. 8 273.10 Application of laws about witnesses 9 A person who gives evidence under a direction is taken to give it at 10 the courtroom or other place in Australia where the court is sitting. 11 Note: This section has effect, for example, for the purposes of laws relating 12 to evidence, procedure, contempt of court and perjury. 13 273.11 Administration of oaths and affirmations 14 An oath or affirmation to be sworn or made by a witness who is to 15 give evidence under a direction may be administered either: 16 (a) by means of the video link, in as nearly as practicable the 17 same way as if the witness were to give the evidence at the 18 courtroom or other place in Australia where the court is 19 sitting; or 20 (b) as follows: 21 (i) on behalf of the court and as directed by it; 22 (ii) by a person (whether an Australian official or not) 23 authorised by the court; 24 (iii) at the place where the witness is to give the evidence. 25 273.12 Expenses 26 A court may make such orders as are just for payment of expenses 27 incurred in connection with giving evidence under a direction by 28 the court under this Subdivision. 29 273.13 Other laws about foreign evidence not affected 30 This Subdivision does not prevent any other law about taking 31 evidence of a witness outside Australia from applying for the 32 purposes of a proceeding for an offence against this Division. [Page Break] 2 Code 3 Repeal the paragraphs. 4 11 Subsections 474.27(4) and (5) of the Criminal Code 5 Repeal the subsections. 6 12 Subsection 474.28(11) of the Criminal Code 7 Repeal the subsection. 8 13 Dictionary in the Criminal Code 9 Insert: 10 act of indecency has the meaning given by section 272.2. 11 14 Dictionary in the Criminal Code 12 Insert: 13 procure a person, in relation to sexual activity, includes: 14 (a) encourage, entice or recruit the person in relation to that 15 activity; or 16 (b) induce the person (whether by threats, promises or otherwise) 17 in relation to that activity. 18 15 Dictionary in the Criminal Code 19 Insert: 20 sexual activity means: 21 (a) sexual intercourse; or 22 (b) an act of indecency; or 23 (c) any other activity of a sexual or indecent nature that involves 24 the human body, or bodily actions or functions (whether or 25 not that activity involves physical contact between people). 26 16 Dictionary in the Criminal Code 27 Insert: 28 sexual intercourse has the meaning given by section 272.3. 29 Surveillance Devices Act 2004 [Page Break] 2 Repeal the subparagraph. 3 18 Subparagraph 30(1)(a)(viii) 4 Omit "or 270", substitute ", 270, 272 or 273". 5 Telecommunications (Interception and Access) Act 1979 6 19 Subparagraphs 5D(2)(b)(viii) and (ix) 7 Repeal the subparagraphs. 8 20 Subsection 5D(2A) 9 Repeal the subsection. 10 21 Subparagraph 5D(3)(d)(xi) 11 Omit "(including an offence against Part IIIA of the Crimes Act 1914)". 12 22 Subsection 5D(3B) 13 Repeal the subsection. 14 23 Before subsection 5D(4) 15 Insert: 16 Sexual offences against children and offences involving child 17 pornography 18 (3C) An offence is also a serious offence if: 19 (a) it is an offence against Division 272 or 273, or 20 section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of 21 the Criminal Code; or 22 (b) the particular conduct constituting the offence otherwise 23 involved, involves or would involve: 24 (i) the production, publication, possession, supply or sale 25 of, or other dealing in, child pornography; or 26 (ii) consenting to or procuring the employment of a child, or 27 employing a child, in connection with child 28 pornography.