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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT
(SEXUAL OFFENCES AGAINST CHILDREN) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Brendan O'Connor MP)
CRIMES LEGISLATION AMENDMENT
(SEXUAL OFFENCES AGAINST CHILDREN) BILL 2010
GENERAL OUTLINE
This Bill amends the Australian Crime Commission Act 2002, the Crimes
Act 1914, the Criminal Code Act 1995, the Surveillance Devices Act 2004
and the Telecommunications (Interception and Access) Act 1979.
The sexual exploitation of children is a devastating and widespread
form of criminal activity. Responsibility for combating child sexual
exploitation is shared between the Commonwealth, States and
Territories. Traditionally, the States and Territories have been
responsible for child sex-related offences occurring domestically (eg
within each jurisdiction), while the Commonwealth has enacted child sex-
related offences occurring across or outside Australian jurisdictions
(eg where the Internet is involved or where the offence is committed
overseas). This reflects areas of Commonwealth legislative power under
the Constitution.
The Commonwealth's regime includes offences criminalising child sex
tourism (sexual offences against children overseas) and using the
Internet or postal service for child sex-related activity. These
offences are generally directed at persons under 16 years of age. This
is consistent with the age of consent in the majority of Australian
States and Territories. The Government believes that setting the age
of consent at 16 years of age strikes the appropriate balance between
the need to protect vulnerable persons from sexual exploitation, and
the need to allow for sexual autonomy.
This Bill will ensure comprehensive coverage of sexual offences against
children, including reflecting best practice approaches domestically
and internationally. The Bill:
. strengthens the existing child sex tourism offence regime
. introduces new offences for dealing in child pornography and child
abuse material overseas
. introduces new offences for using a postal service for child sex-
related activity
. enhances the coverage of offences for using a carriage service for
sexual activity with a child or for child pornography or child abuse
material
. makes minor consequential amendments to ensure existing law
enforcement powers are available to combat Commonwealth child sex-
related offences, and
. introduces a new scheme to provide for the forfeiture of child
pornography and child abuse material and items containing such
material.
These measures are further described below.
PURPOSE
The purpose of Schedule 1 is to make amendments relating to sexual
offences against children, including child sex offences outside
Australia, child sex offences involving postal or similar services, or
carriage services and to make minor consequential amendments.
Part 1 of Schedule 1 will repeal the existing child sex tourism offence
regime in the Crimes Act and move the provisions to the Criminal Code.
It will also strengthen the child sex tourism offence regime by
introducing new offences for steps preceding actual sexual activity
with a child, improving the operation of existing offences for sexual
intercourse or other sexual activity with a child and by introducing
new sexual activity offences directed at aggravated conduct, persistent
sexual abuse and sexual activity with a young person (between 16 and 18
years of age) where the defendant is in a position of trust or
authority in relation to the young person.
Part 1 of Schedule 1 will also introduce new offences for Australians
dealing in child pornography and child abuse material overseas.
Commonwealth, State and Territory offences criminalise dealings in
child pornography and child abuse material within Australia and through
the Internet. However, there are currently no offences applying
extraterritorially to dealings in such material by Australians
overseas. Accordingly, Part 1 will introduce new offences for
possessing, controlling, producing, distributing or obtaining child
pornography or child abuse material outside Australia.
The purpose of the amendments in Part 1 is to ensure that all behaviour
relating to sexual offences against children by Australians within
Australia (covered by State and Territory offences) is also
criminalised when committed by Australians overseas.
Part 2 of Schedule 1 will introduce new offences for using a postal or
similar service for child sex-related activity. While there is a
general offence of using a postal service to menace, harass or cause
offence (carrying a maximum penalty of two years imprisonment), there
are currently no specific offences for using a postal service for child
sex-related activity. This had lead to inconsistencies in how child
sex-related activity using a carriage service and comparable activity
using a postal service, is treated. Accordingly, Part 2 will introduce
a comprehensive suite of offences that criminalise the use of a postal
service, mirroring existing, and proposed, carriage service offences
and penalties.
Part 2 of Schedule 1 will also enhance the coverage of offences for
using a carriage service (eg the Internet) for child pornography or
child abuse material or for sexual activity with children. In 2005,
new offences for using a carriage service for child pornography or
child abuse material, or for grooming or procuring a child for sexual
activity, were inserted into the Criminal Code. Part 2 will extend and
improve the operation of these existing offences. It will also
introduce new offences for using a carriage service for indecent
communications with a child or for sexual activity with a child.
Part 3 of Schedule 1 will make minor consequential amendments to ensure
existing law enforcement powers are available to combat all
Commonwealth child sex-related offences. Part 3 will make minor
consequential amendments to the Australian Crime Commission Act 2002,
the Crimes Act, the Surveillance Devices Act 2004 and the
Telecommunications (Interception and Access) Act 1979. These
amendments will ensure that law enforcement agencies are able to use
existing powers applicable to existing offences, for the investigation
of the proposed new offences.
The purpose of Schedule 2 is to introduce a comprehensive scheme for
the forfeiture of child pornography or child abuse material, or
articles containing material, derived from or used in connection with
the commission of a Commonwealth child sex offence. Currently, there
is no specific Commonwealth scheme for dealing with child pornography
or child abuse material that is seized or otherwise obtained by law
enforcement in the course of investigating offences.
Material or articles will be able to be forfeited through a notice
scheme administered by the Australian Federal Police and, where
appropriate, a State or Territory police force. Disputed forfeiture
matters will be dealt with by a court. A court would also be able to
determine forfeiture applications brought by the Commonwealth Director
of Public Prosecutions, either following a conviction or an acquittal,
or in purely civil proceedings.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government
revenue.
ACRONYMS
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
AFP Australian Federal Police
CDPP Commonwealth Director of Public Prosecutions
TIA Act Telecommunications (Interception and
Access) Act 1979
SD Act Surveillance Devices Act 2004
Serious and Organised Crime Bill Crimes Legislation Amendment
(Serious and Organised Crime) Bill 2009
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited
as the Crimes Legislation Amendment (Sexual Offences Against Children)
Act 2010.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Sections 1 to 3 will commence the day after Royal Assent.
Schedule 1 will commence the day after Royal Assent.
Schedule 2 will commence 28 days after Royal Assent. The purpose of
delayed commencement is to allow time to establish arrangements for the
administrative and court-based forfeiture of child sex material.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant Act.
Schedule 1 - Amendments relating to sexual offences against children
GENERAL OUTLINE
The purpose of this schedule is to make amendments relating to sexual
offences against children. The amendments will ensure comprehensive
coverage of sexual offences against children within Commonwealth
responsibility, including reflecting best practice approaches
domestically and internationally.
Amendments to strengthen the existing child sex tourism offence regime,
and to introduce a new offence regime directed at dealings in child
pornography or child abuse material overseas, will ensure that all
behaviour relating to sexual offences against or involving children
criminalised within Australia is also criminalised when committed by
Australians overseas.
Amendments to introduce a new suite of child sex-related postal service
offences, and to enhance the coverage of the existing child sex-related
carriage service offence regime, will ensure that all child sex-related
activity committed using a postal or carriage service is
comprehensively covered. The amendments will also ensure that such
behaviour is treated in a consistent manner, no matter which medium is
used.
Minor consequential amendments to several Acts will ensure that
existing law enforcement powers are available to combat all
Commonwealth child sex-related offences, including all of the new
offences to be inserted by Schedule 1.
Child sex tourism offences
In 1994, new Commonwealth offences were enacted to target Australians
who engage in the sexual abuse of children overseas (child sex
tourism). Child sex tourism is a global phenomenon, which generally
refers to the sexual exploitation of children by offenders who travel
away from their home in order to have sexual contact with children.
The offences (set out in Part IIIA of the Crimes Act) have extra-
territorial application, which means that Australian citizens,
residents and bodies corporate can be prosecuted even if they commit
these offences whilst overseas.
The use of the phrase 'child sex tourism' does not mean that such
conduct always involves a commercial aspect. The underlying purpose of
Australia's child sex tourism offences is to ensure that Australians
cannot engage in sexual activity with children overseas that, if
committed at home, would be an offence. That is, the child sex tourism
offences seek to 'replicate' domestic offences to apply to overseas
contexts.
The existing child sex tourism offence regime, set out in Part IIIA of
the Crimes Act, prohibits a person, whilst outside Australia, from:
. engaging in sexual intercourse or sexual conduct with a child under
16 (sections 50BA and 50BC), or
. inducing a child under 16 years of age to engage in sexual
intercourse or sexual conduct (sections 50BB and 50BC).
The regime also prohibits encouraging or benefiting from child sex
tourism (sections 50DA and 50DB). These offences capture conduct such
as organising a child sex tour in a foreign country and are akin to
'child prostitution' offences in the State and Territory context.
Part 1 of Schedule 1 will repeal the existing child sex tourism offence
regime in the Crimes Act and move the provisions to the Criminal Code,
to new Division 272. This is consistent with the general practice of
transferring into the Criminal Code Commonwealth criminal offences
enacted prior to the enactment of the Criminal Code in 1995. Part 1 of
Schedule 1 will also strengthen the existing child sex tourism offence
regime, by improving the operation of existing offences and by
introducing new offences.
Further background to these amendments is provided at the beginning of
the description of the new Division 272 below.
Overseas child pornography and child abuse material offences
Possessing, producing or distributing child pornography material or child
abuse material within Australia, or unlawfully importing such material into
Australia, is currently criminalised by Commonwealth, State and Territory
offences. However, these existing child pornography and child abuse
material offences do not have extra-territorial effect. Many countries do
not have effective laws against child pornography and child abuse material,
or lack the capacity to enforce them. This means that an Australian could
travel overseas and make or purchase child pornography or child abuse
material and escape punishment, even though the very same behaviour, if
committed in Australia or through the Internet, would be a serious criminal
offence.
Part 1 of Schedule 1 will introduce new Commonwealth offences into the
Criminal Code to criminalise dealing in child pornography and child
abuse material overseas. They will also include aggravated offences
targeted at involvement in child pornography networks. The proposed new
offences will complement the existing child sex tourism offence regime
and ensure comprehensive coverage of child sex-related criminal
behaviour by Australians overseas.
Further background to these amendments is provided at the beginning of
the description of new Division 273 below.
Child sex-related postal service offences
Division 471 of the Criminal Code sets out existing Commonwealth postal
service offences. The offence regime applies to the use of a postal or
similar service, defined in section 470.1 to include the traditional
post, courier services and any other like service.
However, there are no specific offences for the use of the post for
child pornography or child abuse material, or other child sex-related
purposes. Such behaviour may be captured by the existing general
offence of using a postal or similar service to menace, harass or cause
offence, which carries a maximum penalty of two years imprisonment
(section 471.12 of the Criminal Code). However, this is considered
anomalous as a person engaging in such conduct using a carriage service
would, depending on the activity, be subject to a maximum penalty of
between 10 and 15 years imprisonment. Despite the extensive use of the
Internet by child sex offenders, there is evidence that dealings in
customary forms of child pornography are still common. Accordingly,
Part 2 introduces a comprehensive suite of offences criminalising using
a postal or similar service for child sex-related activity. The
offences will mirror relevant carriage service offences (as amended by
Schedule 1) and ensure that such activity is penalised consistently,
regardless of the means through which it is committed.
Further background to these amendments is provided at the beginning of
the description of Part 2 of Schedule 1.
Child sex-related carriage service offences
In 2005, offences for using a carriage service (eg the Internet, mobile
phones) for child sex-related activity were inserted into Division 474
of the Criminal Code. The existing offences criminalise using a
carriage service for child pornography material or child abuse material
(sections 474.16 and 474.19) and possessing, controlling, producing,
supplying or obtaining child pornography material for use through a
carriage service (sections 474.17 and 474.20). They also criminalise
using a carriage service to procure a child for sexual activity
(section 474.24) and using a carriage service to 'groom' a child for
sexual activity (section 474.25).
To ensure that Internet-related child sexual exploitation is
comprehensively covered in light of rapidly changing technologies and
the anonymity that the Internet provides, Part 2 of Schedule 1 will
make a range of amendments to ensure that the Commonwealth's carriage
service offence regime reflects contemporary offending.
Further background to these amendments is provided at the beginning of
the description of Part 2 of Schedule 1.
Part 1 - Amendments relating to child sex offences against children
Crimes Act 1914
Item 1
This item repeals Part IIIA of the Crimes Act. The offences within
this Part are moved to the Criminal Code (see Item 4) as indicated by
the table below.
|Crimes Act |Criminal Code |
|Section 50BA |Section 272.8 |
|Section 50BB | |
|Section 50BC |Section 272.9 |
|Section 50BD | |
|Section 50DA |Section 272.18 |
|Section 50DB |Section 272.19 |
Criminal Code Act 1995
Items 2 and 3
Subsection 7.3(8) currently defines mental impairment for the purposes
of section 7.3 of the Criminal Code (which sets out the general defence
of 'Mental impairment'). Given that this definition will be relied
upon by several new offence provisions inserted by this Bill, two minor
consequential amendments are necessary.
Item 2 will extend the application of the definition of mental
impairment in section 7.3 to the Criminal Code as a whole, by replacing
the reference in subsection 7.3(8) to 'In this section' with 'In this
Code'.
Item 3 is a minor consequential amendment that will remove an existing
reference to section 7.3 in section 102.1(1A)(c) of the Criminal Code
(definition of when an organisation advocates the doing of a terrorist
act), as the amendment by Item 2 means it is no longer necessary.
Item 4
This item will insert new Divisions 272 and 273 into the Criminal Code.
Division 272 will deal with child sex offences outside Australia
(child sex tourism) and Division 273 will deal with offences involving
child pornography or child abuse material outside Australia.
Division 272 - Child sex offences outside Australia
New Division 272 'Child sex offences outside Australia' will be based
on existing Part IIIA 'Child Sex Tourism' in the Crimes Act. However
the amendments will strengthen the regime, by improving the operation
of existing offences directed at sexual intercourse and other sexual
activity and by introducing new offences. The rationale for making
each of these modifications is set out below. A detailed description
of the provisions themselves follows.
Improving offences directed at sexual intercourse and other sexual
activity
Existing child sex tourism offences in Part IIIA of the Crimes Act
criminalise engaging in sexual intercourse or sexual conduct with a
person under 16, or inducing a person under 16 to engage in sexual
intercourse or sexual conduct in the presence of the defendant. The
amendments, in addition to transferring these offences to the Criminal
Code, will improve the operation of these offences by simplifying their
structure and increasing the maximum penalties that apply.
The amendments will merge existing offences of engaging in sexual
intercourse and inducing sexual intercourse into one offence and,
similarly, merge existing offences of engaging in sexual conduct and
inducing sexual conduct into one offence. Accordingly, for example,
the sexual intercourse offence will apply to engaging in sexual
intercourse with a child or causing a child to engage in sexual
intercourse in the presence of the defendant. The use of 'causing'
rather than 'inducing' is intended to avoid confusion and distinguish
this more serious offence (directed at where actual sexual intercourse
takes place) from the new procuring offence to be inserted by the Bill.
The new procuring offence will apply where the defendant has induced a
child to engage in sexual activity with a person other than the
defendant. The procuring offence is directed at the procuring (or
inducing) conduct, and does not require the actual sexual activity to
take place.
The amendments will also replace the offences directed at sexual
conduct with offences directed at sexual activity. This is more
consistent with existing child sex-related offences in the Criminal
Code. The new sexual activity offence will be simplified by removing
current references to specific variations of behaviour that the offence
is intended to cover, and relying on the existing definition of sexual
activity in the Criminal Code (to be inserted into the Dictionary in
modified form by item 10) and a new extended definition of engage in
sexual activity (to be inserted into the Dictionary of the Criminal
Code by item 6).
New aggravated offences
The amendments in this schedule will introduce new aggravated sexual
intercourse and other sexual activity offences. The aggravated
offences are directed at specific circumstances which reflect a higher
level of culpability and which should be explicitly included as
circumstances attracting a higher penalty.
The aggravated offences will apply where the defendant is in a position
of trust or authority in relation to the child, as defined in section
272.3 of this Bill, or the child is otherwise under the care,
supervision or authority of the person. Where there is a relationship
of trust between an adult and a child, or where an adult is in a
particular position of authority in relation to the child, the child is
particularly vulnerable to exploitation, through manipulation by
threats, promises or bribes. The gravity of such conduct is widely
recognised in State, Territory, and international laws. Unfortunately,
Australians are not limited to taking advantage of positions of trust
at home. Offenders may also travel to foreign countries to take up
positions such as teachers, aid workers, sports coaches or church
workers. Offenders may take advantage both of being in an environment
which may not have effective criminal laws in place and of the role
which they are in.
The aggravated offences will also apply where the child has a mental
impairment. All States and Territories, and many other countries
internationally, have offences that recognise persons with a mental
impairment as a class of persons particularly vulnerable to sexual
abuse. The special vulnerability of children with disabilities to
becoming victims of child prostitution and child pornography has been
recognised by the monitoring body under the Convention on the Rights of
the Child, the Committee on the Rights of the Child. The Committee has
urged Governments, in fulfilling their obligations under the Optional
Protocol to the Convention, to pay particular attention to the
protection of children with disabilities. Accordingly, the seriousness
of such behaviour should be recognised in Australia's extraterritorial
child sex offences as well as in its domestic offences.
New persistent sexual abuse offence
In the early 1990s, there were several child sex cases before State and
Territory courts involving evidence that the alleged sexual activity
had occurred a number of times, but the complainant could not identify
specifically when any one act occurred. As a result, the defendants
were acquitted. The courts referred to the unfairness to the accused
when faced with allegations of repeated acts over an extended period of
time, without sufficient particularity.
However, the courts also referred to the difficulties faced by the
prosecution in the need to present evidence of particular acts with
sufficient precision. These difficulties include:
. the child may have been very young when the abuse commenced
. the abuse may have occurred regularly over a lengthy period of time
. there may be no clear distinction between abuse, and
. a complaint may not be made until some time after the abuse began.
These cases triggered the enactment by all States and Territories of
offences of persistent sexual abuse, or conducting a sexual
relationship with a child. Such offences allow the prosecution to
present an indictment which charges an accused with the offence of
having a 'sexual relationship' with a child over a period of time. The
incidences of abuse must be on a number of separate occasions
(typically three) when particular sexual acts occurred, although it is
not necessary to specify times, dates, or specific circumstances of the
acts.
Just as other 'domestic' sexual offences are committed by Australians
overseas, it is not inconceivable that Australians may engage in the
persistent sexual abuse of children overseas. The amendments in this
Schedule will introduce a new offence of persistent sexual abuse of a
child overseas. The new offence is based largely on a model
recommended by the then Model Criminal Code Officers Committee in its
1995 report on Sexual Offences Against the Person.
New offence of abuse of a young person where offender in a position of
trust or authority
It is common in the States and Territories, and internationally, to
have offences criminalising sexual activity with a person aged between
18 and 16 years of age (a young person) where the person is in a
position of trust or authority in relation to the young person. The
enactment of specific child sex-related offences reflects the broader
rationale that there are certain vulnerable groups in society who need
special protection. This rationale extends to older children whose
capacity to consent is not fully lacking but is in some way
underdeveloped, or who may be subject to influence.
The age of consent under Commonwealth law is 16 years of age. However,
it is widely recognised that there are certain relationships where the
potential for imbalance of power is so significant that a higher age of
consent should apply to sexual contact between persons within those
relationships. As detailed above, it is common for offenders to travel
overseas to take up positions of trust within the overseas community.
Accordingly, the amendments in this Schedule will introduce new
offences of engaging in sexual intercourse or other sexual activity
with a young person where the defendant is in a position of trust or
authority in relation to the young person. The Schedule will prescribe
categories of relationships constituting positions of trust and
authority, such as those between a young person and a parent, guardian
or carer, teacher or employer.
New grooming and procuring offences
Existing child sex tourism offences prohibit engaging in sexual
intercourse or sexual conduct with a child, or inducing a child to
engage in such conduct. However, the regime does not criminalise
behaviour leading up to actual sexual activity with a child.
It is also frequently the case that offenders target specific children,
for the purpose of 'grooming' the child to engage in sexual activity,
or procuring the child for sexual activity. The term 'grooming'
generally refers to behaviour that is designed to make it easier for
the offender to procure a child for sexual activity. For example, an
offender might build a relationship of trust with the child, and then
seek to sexualise that relationship (eg by encouraging romantic
feelings or exposing the child to sexual concepts through pornography).
Grooming or procuring a child for sexual activity within Australia is
an offence under State and Territory laws. Using a carriage service
for such behaviour is also criminalised by specific Commonwealth
offences. However, there is currently no equivalent child sex tourism
offence for grooming or procuring a child for sexual activity overseas.
Enacting extraterritorial offences for grooming or procuring a child in
or outside Australia for sexual activity overseas will ensure
comprehensive criminalisation of this kind of conduct, and place
Australia on par with its international counterparts.
New preparatory offence
Under the existing child sex tourism offence regime, a person who
organises for others to engage in child sex tourism (eg as a child sex
tour operator) would be captured by the benefiting and encouraging
offences. While these offences allow police to adopt an
interventionist approach, they are not specifically directed at conduct
where a person is planning his or her own participation in child sex
tourism. It is not clear that such preparatory activity would be
captured by existing offences.
Offences involved in child sex tourism are of a particularly serious
nature and result in devastating consequences for the child victims
involved. Evidence of a person's intent to travel overseas to sexually
abuse children often comes to the attention of law enforcement agencies
while the offender is still in Australia. Law enforcement should not
have to wait until the offender is in the advanced stages of committing
a child sex tourism offence to take action, as this places the child
under unnecessary risk. A focus on prevention, rather than just
addressing the conduct after the fact, will go further towards
protecting children from such behaviour. Accordingly, this Schedule
will introduce a new offence of preparing for, or planning, a child sex
tourism offence.
Subdivision A - Preliminary
Section 272.1 - Definitions
Section 272.1 will move current definition provisions contained in
section 50AA of the Crimes Act to the Criminal Code and insert
necessary new definitions for the purpose of defining the words and
expressions used in proposed Division 272:
cause a person to engage in sexual intercourse or other sexual activity
will have the meaning given to it by section 272.2.
offence for the purpose of the Division, has the extended meaning
provided in proposed section 272.5.
position of trust or authority will have the meaning given to it by
subsection 272.3.
sexual intercourse will have the meaning given to it by section 272.4.
Section 272.2 - when conduct causes a person to engage in sexual
intercourse or other sexual activity
Section 272.2 will insert a definition of when conduct causes a person
to engage in sexual intercourse or other sexual activity for the
purposes of the sexual intercourse and sexual activity offences
(sections 272.8 and 272.9). 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. This is consistent with
references to 'causes' in other areas of the Criminal Code.
Section 272.3 - Meaning of position of trust or authority
This section will define when a person is in a position of trust or
authority in relation to another person for the purposes of the new
offences in sections 272.10 (Aggravated offence - child with mental
impairment or under care, supervision or authority of defendant),
272.12 (Sexual intercourse with young person outside Australia -
defendant in position of trust or authority) and 272.13 (Sexual
activity (other than sexual intercourse) with young person outside
Australia - defendant in position of trust or authority).
Subsection 272.3(1) will provide an exhaustive definition by specifying
that a person is in a position of trust or authority in relation to
another person if they are in any of the positions listed in the
subsection. These include, if they are the person's parent, step-
parent, grandparent, foster parent, guardian, carer, teacher, religious
official or spiritual leader, sports coach, medical practitioner or
other like health professional, police officer or employer. The
prescription of these particular relationships is consistent with
comparable State and Territory definitions applicable to sexual
offences against children and young people.
Subsection 272.3(2) will make clear who is a parent, step-parent or
grandparent of a person for the purposes of the definition of position
of trust or authority.
Paragraph 272.3(2)(a) will provide that a person is the parent of a
person if the other person is a child of the person within the meaning
of the Family Law Act 1995. The meaning of 'child' in the Family Law
Act includes children:
. born to a woman as the result of an artificial conception procedure
while that woman was married to, or was a de facto partner of,
another person (whether of the same or opposite sex), and
. who are children of a person because of an order of a State or
Territory court made under a State or Territory law prescribed for
the purposes of section 60HB of the Family Law Act, giving effect to
a surrogacy agreement.
This will ensure that the definition of child will include children
born through artificial conception procedures and surrogacy
arrangements. It will also ensure that the children of same-sex
couples are recognised.
Paragraph 272.3(2)(b) will provide that 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.
Paragraph 272.3(2)(c) will provide that a person (the first person) is
the grandparent of another person if the first person is a parent or
step-parent of a parent or step-parent of the other person.
Subsection 272.3(3) will define de facto partner of a person with
reference to the meaning given by the Acts Interpretation Act 1901.
That is, a person will be the de facto partner of another person
(whether the same sex or different sex) if the person is in a
registered relationship with the other person under section 22B, or the
person is in a de facto relationship with the other person under
section 22C, of the Acts Interpretation Act.
Section 272.4 - Meaning of sexual intercourse
This section will define sexual intercourse and is based upon existing
section 50AC of the Crimes Act (which will be repealed by item 1). As the
definition is exhaustive, conduct of a sexual nature which does not fall
within any of the conduct listed in proposed paragraphs 272.3(1)(a)-(e)
will not amount to sexual intercourse for the purposes of the offences that
use that term (although the conduct may amount to sexual activity).
The definition of sexual intercourse will include the penetration of the
vagina or anus of a person by any part of the body of another person, the
penetration of the vagina or anus of a person, carried out by another
person by an object, fellatio and cunnilingus.
Subsection 272.4(2) will make it clear that acts carried out for a proper
medical, hygienic or law enforcement purpose will not amount to sexual
intercourse for the purposes of the definition.
Subsection 272.4(3) will contain the definition of "vagina" based on the
definition in section 50AA of the Crimes Act (which will be repealed by
Item 1), which includes any part of a female person's genitalia and a
surgically constructed vagina.
Section 272.5 - Meaning of an offence against this Division and extension
of criminal responsibility
Section 6 of the Crimes Act and Part 2.4 of the Criminal Code extend
criminal responsibility for all Commonwealth offences and operate to
automatically provide for ancillary offences such as being an accessory
after the fact, attempting to commit an offence or inciting the commission
of an offence.
As proposed Subdivision C provides for offences of benefiting from,
encouraging or preparing to commit a child sex tourism offence, section
272.5 will modify the application of the extensions of criminal
responsibility in section 6 of the Crimes Act and Part 2.4 of the
Criminal Code.
For example, subsection 272.5(3) will bar the operation of section 11.1
(attempt) of the Criminal Code because liability for attempt is
incompatible with the procuring and grooming offences in proposed
sections 272.14 and 272.15. The incompatibility arises from the fact that
the proposed offences are themselves a preparatory crime - they are
committed in the preparation of actual sexual abuse. An equivalent
provision is contained in subsection 474.28(10) which will provide that it
is not an attempt to commit a procuring or grooming offence using a
carriage service in sections 474.26 and 474.27. Similarly, proposed
subsection 272.5(3) will also bar the operation of section 11.1 in relation
to the preparatory offence in proposed section 272.19.
In another example, proposed subsection 272.5(4) will bar the operation of
section 11.4 (inciting) of the Criminal Code in relation to proposed
section 272.19 which will provide for an offence of encouraging the
commission of an offence. As the definition of encouraging will include
inciting, the application of section 11.4 will not be necessary.
Section 272.6 - Who can be prosecuted for an offence committed outside
Australia
This section will be based upon section 50AD of the current Crimes Act.
The section will define the persons who may be prosecuted under Division
272 for offences committed outside Australia. They are persons who, at the
time of the offence, are:
. Australian citizens
. residents of Australia
. a body corporate under Australian law, or
. a body corporate that carries on its activities principally in
Australia.
The purpose of this section is to avoid extending the reach of the laws to
matters not properly the subject of Australian law enforcement activity.
Section 272.7 - Saving of other laws
This section, based on section 50GA of the Crimes Act, will make it clear
that Division 272 does not limit or exclude 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
Subdivision B will insert a suite of new offences directed at sexual
offending against children and young people outside Australia.
Sections 272.8 and 272.9 will introduce new offences of engaging in sexual
intercourse or other sexual activity with a child outside Australia. These
offences are based on existing sections 50BA, 50BB, 50BC and 50BD of the
Crimes Act. Section 272.10 will introduce a new aggravated offence of
engaging in sexual intercourse or other sexual activity with a child where
the child has a mental impairment or is under the care, supervision or
authority of the defendant.
Section 272.11 will introduce a new offence of persistent sexual abuse of a
child outside Australia.
Sections 272.12 and 272.13 will introduce new offences of engaging in
sexual intercourse or other sexual activity with a young person (a person
aged at least 16 but under 18) where the defendant is in a position of
trust or authority in relation to the young person.
Sections 272.14 and 272.15 will introduce new offences of procuring or
grooming a child to engage in sexual activity outside Australia.
While the general defences available under Part 2.3 of the Criminal Code
are available to a person accused of the above mentioned offences,
Subdivision B will also insert two specific defences applicable to offences
in Subdivision B. Section 272.16 will insert a defence based on a belief
about age (based on existing section 50CA of the Crimes Act). Section
272.17 will insert a defence based on valid and genuine marriage (based on
existing section 50CB).
Section 272.8 - Sexual intercourse with child outside Australia
Section 272.8 will cover the same conduct as existing sections 50BA (sexual
intercourse with child under 16) and 50BB (inducing child under 16 to
engage in sexual intercourse) of the Crimes Act, but with several
modifications. In addition to reframing existing sections to bring them
into line with Chapter 2 of the Criminal Code, it will more clearly state
the conduct covered and increase the maximum penalty for the offence from
17 to 20 years imprisonment. The purpose of the offence is to cover any
conduct which involves a child engaging in sexual intercourse with, or in
the presence of, the defendant.
Subsection 272.8(1) will make it an offence for a person to engage in
sexual intercourse with a child under 16 years of age outside
Australia. This offence will be punishable by a maximum penalty of 20
years imprisonment.
An example of this type of offence is as follows. Person A, an
Australian citizen, travels to Cambodia and while in Cambodia, engages
in sexual intercourse with a child under 16 years of age.
Section 5.6 of the Criminal Code will apply the automatic fault element
of intention to paragraph 272.8(1)(a). To establish this offence, the
prosecution will need to prove beyond reasonable doubt that:
. the person intended to engage in sexual intercourse with another
person (the child)
. the child was under 16 years of age, and
. the sexual intercourse was engaged in outside of Australia.
Subsection 272.8(2) will make it an offence for a person (the first
person) to engage in conduct in relation to a child where that conduct
causes the child to engage in sexual intercourse in the presence of the
first person. This offence is intended to replace the inducing offence
in existing section 50BB of the Crimes Act. This is necessary in part
to avoid confusion as a result of the introduction of the new procuring
offence in section 272.14 (given that the definition of 'procuring'
will include to induce by threats, promises or otherwise). However, it
is also appropriate to make clear that this offence is not directed at
the 'inducing' conduct, but is directed at the more serious conduct of
actual sexual intercourse occurring in the presence of the defendant.
Thus, the language of 'inducing' will be replaced by the more general
concept of 'causing'.
An example of this type of offence is as follows. Person A meets a
child in a shop in Bangkok. Person A takes the child back to a hotel
room. In the hotel room, the child engages in sexual intercourse with
person B while person A watches.
Section 5.6 of the Criminal Code will apply the automatic fault
elements to paragraph 272.8(2)(a). Subsection 272.8(3) will
specifically apply the fault element of intention to paragraph
272.8(2)(b). To establish this offence, the prosecution will need to
prove beyond reasonable doubt that:
. the person intended to engage in conduct in relation to another
person (the child)
. the person intended their conduct to cause the child to engage in
sexual intercourse in the presence of the person
. the child was, at the time that the sexual intercourse was engaged
in, under 16, and
. the sexual intercourse was engaged in outside of Australia.
Subsection 272.8(3) will exclude the application of the automatic fault
element applying to a result of conduct under section 5.6 of the
Criminal Code (recklessness) and specifies that intention is the fault
element applying to the physical element in paragraph 272.8(2)(b).
Under paragraph 272.8(2)(b), the prosecution will have to prove that
the person's conduct caused the child to engage in sexual intercourse
in the presence of the person. Given the offence is intended to
address the occurrence of actual sexual intercourse (as the high
maximum penalty reflects), it is appropriate for the prosecution to
have to prove that the person meant the child to engage in sexual
intercourse in their presence (rather than that they were reckless as
to this fact).
Under section 272.2 a person's conduct will cause a child to engage in
sexual intercourse if it substantially contributes to the child
engaging in sexual intercourse.
Under paragraph 272.8(2)(c), the child will have to have been under 16
at the time that the sexual intercourse is engaged in. This is because
the offence in subsection 272.8(2) will cover behaviour which may
happen at two different points in time. That is, the result (ie that
the child engages in sexual activity in the presence of the defendant)
may potentially occur some time after the causing conduct. For
example, person A may meet a child on a Monday and ask that they come
to their hotel room the following Saturday. On the Saturday, the child
engages in sexual intercourse with person B in the presence of the
defendant. Paragraph 272.8(2)(c) will make clear that the child must
be under 16 at the time of the sexual intercourse.
For the purposes of both offences, sexual intercourse will be defined
in section 272.4 to include penetration, to any extent, of the vagina
or anus of a person by any body part of another person or by an object
carried out by another person, fellatio and cunnilingus.
Subsection 272.8(4) will specify that the fault element for the
physical elements of both offences in paragraphs 272.8(1)(b) and (c)
and 272.8(2)(c) and (d), that the child is under 16 and that the sexual
intercourse is engaged in outside Australia, will be absolute
liability.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the child was under
16 or that the sexual intercourse was engaged in outside Australia.
Absolute liability is appropriate and required for the element in the
offences that the child was under 16 given the intended deterrent effect of
these offences and the availability of a specific 'belief about age'
defence under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences that the sexual intercourse was engaged in outside Australia
because this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not relate to
the substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth and
those that do not. The issue of whether the person intended to engage in
the conduct in Australia or overseas is not relevant to their culpability.
This is consistent with Commonwealth criminal law practice, as described in
the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.8(1) and 272.8(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.8(1) and
272.8(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.8(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
The high penalty for both offences reflects the seriousness of the harm
committed against children. It will also allow the court discretion to
impose an appropriate sentence, given that the offence of engaging in
sexual intercourse with a child applies to a child of any age (but
below 16 years of age). The penalty increase also achieves consistency
with penalty ranges for comparable State and Territory offences.
Section 272.9 - Sexual activity (other than sexual intercourse) with child
outside Australia
Section 272.9 will cover the same conduct as existing sections 50BC (sexual
conduct involving child under 16) and 50BD (inducing child under 16 to be
involved in sexual conduct). However, the offences have been substantially
simplified, based on the application of new definitions of sexual activity
and engage in sexual activity. The maximum penalties have also been
increased from 12 years imprisonment to 15 years imprisonment. The purpose
of the offence is to cover any conduct which involves a child engaging in
any sexual activity (other than sexual intercourse) with, or in the
presence of, the defendant. The offence will not apply to sexual
intercourse because it is intended that conduct involving sexual
intercourse should be dealt with by the more serious offence in section
272.8.
Subsection 272.9(1) will make it an offence for a person to engage in
sexual activity (other than sexual intercourse) with a child under 16
years of age outside Australia. This offence will be punishable by a
maximum penalty of 15 years imprisonment.
Examples of this type of offence are as follows.
Person A travels to Thailand and while in Thailand, commits an act of a
sexual nature (other than sexual intercourse) on a person under 16.
Person A travels to Thailand and while in Thailand, submits to an act of a
sexual nature (other than sexual intercourse) committed by Person B in
front of a person under 16.
Person A travels to Thailand and while in Thailand, engages in sexual
intercourse with Person B (another adult) in front of a person under 16.
Section 5.6 of the Criminal Code will apply the automatic fault element
of intention to paragraph 272.9(1)(a). To establish this offence, the
prosecution will need to prove beyond reasonable doubt that:
. the person intended to engage in sexual activity (other than sexual
intercourse) with another person (the child)
. the child was under 16 years of age, and
. the sexual activity was engaged in outside of Australia.
Subsection 272.9(2) will make it an offence for a person (the first
person) to engage in conduct in relation to a child where that conduct
causes the child to engage in sexual activity in the presence of the
first person. This offence will replace the inducing offence in
existing section 50BD of the Crimes Act. This is necessary in part to
avoid confusion as a result of the introduction of the new procuring
offence in section 272.14 (given that the definition of 'procuring'
will include to induce by threats, promises or otherwise). However, it
is also appropriate to make clear that this offence is not directed at
the 'inducing' conduct, but is directed at the more serious conduct of
actual sexual activity occurring in the presence of the defendant.
Thus, the language of 'inducing' will be replaced by the more general
concept of 'causing'.
Examples of this type of offence are as follows.
Person A travels to Thailand and while in Thailand, asks a person under 16
(a child) to accompany Person A to his/her hotel room. Person B is in the
hotel room, and commits an act of a sexual nature (other than sexual
intercourse) on the child in the presence of Person A.
Person A travels to Thailand and while in Thailand, asks a person under 16
(a child) to accompany Person A to his/her hotel room. Person B is in the
hotel room, and Persons A and B engage in an act of a sexual nature (other
than sexual intercourse) in the presence of the child.
Person A meets a child in a shop in Bangkok. Person A takes the child
back to a hotel room. Persons B and C are in the hotel room. In the
hotel room, Persons B and C engage in sexual intercourse in the
presence of Person A and the child.
Section 5.6 of the Criminal Code will apply the automatic fault element
of intention to paragraph 272.9(2)(a). Subsection 272.9(3)
specifically applies the fault element of intention to paragraph
272.9(2)(b). To establish this offence, the prosecution will need to
prove beyond reasonable doubt that:
. the person intended to engage in conduct in relation to another
person (the child)
. the person intended their conduct to cause the child to engage in
sexual activity (other than sexual intercourse) in the presence of
the person
. the child was, at the time that the sexual activity was engaged in,
under 16, and
. the sexual activity was engaged in outside of Australia.
Subsection 272.9(3) will exclude the application of the automatic fault
element applying to a result of conduct under section 5.6 of the
Criminal Code (recklessness) and specifies that intention is the fault
element applying to the physical element in paragraph 272.9(2)(b).
Under paragraph 272.9(2)(b), the prosecution will have to prove that
the person's conduct caused the child to engage in sexual activity in
the presence of the person. Given the offence is intended to address
the occurrence of actual sexual activity (as the high maximum penalty
reflects), it is appropriate for the prosecution to have to prove that
the person meant the child to engage in sexual activity in their
presence (rather than that they were reckless as to this fact).
Under section 272.2 a person's conduct will cause a child to engage in
sexual activity if it substantially contributes to the child engaging
in sexual activity.
Under paragraph 272.9(2)(c), the child will have to have been under 16
at the time that the sexual activity is engaged in. This is because
the offence in subsection 272.9(2) will cover behaviour which may
happen at two different points in time. That is, the result (ie that
the child engages in sexual activity in the presence of the defendant)
may potentially occur some time after the causing conduct. For
example, person A may meet a child on a Monday and ask that they come
to their hotel room the following Saturday. On the Saturday, the child
engages in sexual activity with person B in the presence of the
defendant. Paragraph 272.9(2)(c) will make clear that the child must
be under 16 at the time that the sexual activity is engaged in.
Both offences rely on a definition of sexual activity to be inserted
into the Dictionary of the Criminal Code by item 10. The existing
offences in sections 50BC and 50BD of the Crimes Act rely on a concept
of sexual conduct, which criminalises engaging in, or submitting to,
acts of indecency. However existing offences in the Criminal Code
directed at sexual offences against children rely on the concept of
sexual activity. For the sake of consistency, the new Criminal Code
offences will be based on the concept of sexual activity, rather than
sexual conduct. Sexual activity will be defined in the Dictionary to
mean sexual intercourse or any other act 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).
Both offences will also rely on a new definition of engage in sexual
activity to be inserted into the Dictionary of the Criminal Code by
item 6. Without limiting when a person engages in sexual activity, a
person will be 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. By virtue of this definition, the
specific scenarios set out in existing sections 50BC and 50BD are no
longer necessary, and the new offences in section 272.9 will be in a
more simplified form.
Subsection 272.9(4) will specify that the fault element for the
physical elements of both offences in paragraphs 272.9(1)(b) and (c)
and 272.9(2)(c) and (d) (that the child is under 16 and that the sexual
intercourse is engaged in outside Australia) is absolute liability.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the child was under
16 or that the sexual intercourse was engaged in outside Australia.
Absolute liability is appropriate and required for the element in the
offences that the child was under 16 given the intended deterrent
effect of these offences and the availability of a specific 'belief
about age' defence under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences that the sexual intercourse was engaged in outside Australia
because this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not
relate to the substance of the offence, but marks a jurisdictional
boundary between matters that fall within the legislative power of the
Commonwealth and those that do not. The issue of whether the person
intended to engage in the conduct in Australia or overseas is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Subsection 272.9(5) will make available a defence to the offences in
subsection 272.9(1) and (2) where the young person was present but the
defendant did not intend to derive gratification. A person will be taken
not to have committed an offence against subsection 272.9(1) or (2) if:
. the conduct constituting the offence consists only of the child being
present while sexual activity is engaged in by, or in the presence
of, the person, and
. the person did not intend to derive gratification from the child's
presence during that activity.
This defence will be included to ensure that a person will not be captured
by the offences in cases where a child happens to be present but there was
no intention on the part of that person to derive gratification from the
child's presence. An example of such a situation could be where an adult
engages in sexual touching with another consenting adult and a child walks
in on those adults while they are engaging in that activity. In such a
situation, the young person's presence is incidental rather than an aspect
of the activity from which the defendant intended to derive gratification.
A defendant will bear a legal burden in relation to the matter in
subsection 272.9(5). Sections 13.4 and 13.5 of the Criminal Code provide
that in the case of a 'legal burden' defence, a defendant must establish
the elements of the defence on the balance of probabilities. If this is
done, it is then for the prosecution to refute the defence beyond
reasonable doubt. A legal burden is appropriate as whether or not the
defendant derived gratification from something is a matter peculiarly
within the defendant's knowledge and not readily available to the
prosecution. The defendant is better placed to adduce evidence that he or
she did not intend to derive gratification from the presence of the child
during the activity concerned.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.9(1) and 272.9(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.9(1) and
272.9(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.9(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
The high penalty for both offences reflects the seriousness of the harm
committed against children. It will also allow the court discretion to
impose an appropriate sentence, given that the offence of engaging in
sexual activity with a child applies to a child of any age (but below
16 years of age). The penalty increase also achieves consistency with
penalty ranges for comparable State and Territory offences.
Section 272.10 - Aggravated offence - child with mental impairment or under
care, supervision or authority of defendant
Section 272.10 will insert an aggravated offence that will apply if a
person commits an offence against subsection 272.8 or 272.9 in the
circumstance where the child has a mental impairment and/or is under
the care, supervision or authority of the person. The Government
considers such circumstances to be so serious as to warrant a specific
aggravated offence with a higher maximum penalty reflecting a higher
level of culpability.
Under subsection 272.10(1), it will be an aggravated offence for a person
to commit an offence against:
. subsection 272.8(1) (engaging in sexual intercourse with child
outside Australia)
. subsection 272.8(2) (causing a child to engage in sexual intercourse
in presence of defendant outside Australia)
. subsection 272.9(1) (engaging in sexual activity (other than sexual
intercourse) with child outside Australia), or
. subsection 272.9(2) (causing child to engage in sexual activity
(other than sexual intercourse) with child outside Australia
where:
. the child has a mental impairment, and/or
. 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.
This offence will be punishable by a maximum penalty of 25 years
imprisonment. This penalty reflects the higher level of culpability
associated with an offence of sexual activity with a child where the victim
has a mental impairment or is under the care, supervision or authority of
the defendant. In such cases the child is particularly vulnerable to
exploitation, including through manipulation by threats, promises or
bribes.
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person committed the underlying offence, and
. the child had a mental impairment, and/or
. the person was in a position of trust or authority in relation to the
child or the child was otherwise under the care, supervision or
authority of the person.
Subsection 272.10(2) will provide that there is no fault element for
the physical element described in paragraph 272.10(1)(a) other than the
fault elements for the underlying offence. The underlying offences
themselves have specific physical and fault elements that must be
proved by the prosecution. The prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the
relevant underlying offence, including any fault elements applicable to
that offence. Subsection 272.10(2) will make clear that for the
purposes of the offence in section 272.10, the prosecution does not
need to prove any fault elements in addition to those fault elements
already applying to the underlying offences.
Subsection 272.10(3) will provide that, for the avoidance of doubt, a
person does not commit the underlying offence for the purposes of
paragraph 272.10(1)(a) if the person has made out a defence to the
underlying offence. This subsection makes it clear that a defendant is
able to rely any defences that apply to the underlying offences that
will constitute a charge under subsection 272.10(1).
Item 7 will insert a signpost definition of mental impairment into the
Dictionary of the Criminal Code, giving it the meaning set out in
existing section 7.3(8) of the Criminal Code. Section 7.3(8) defines
mental impairment as including senility, intellectual disability,
mental illness, brain damage and severe personality disorder.
Position of trust or authority will be defined for the purposes of the
Criminal Code by new section 272.3 and is described in detail above.
The definition will prescribe the categories of relationships that
would constitute a position of trust or authority, such as a parent,
guardian or carer, or the teacher or employer of a person. However,
this aggravated factor is intended to apply more broadly than just
those specific relationships that will be prescribed under the
definition of position of trust or authority in section 272.3.
The aggravated offence in this section applies to conduct with children
under 16. It is appropriate that the existence of any kind of
relationship, or where the child is in any way under the care,
supervision or authority of the defendant, be treated as aggravated
conduct and worthy of a higher penalty. It will be for the court to
determine in the specific circumstances of the case whether the child
was otherwise under the care, supervision or authority of the person.
This differs from other provisions relying on the definition of
position of trust or authority. It is appropriate to limit the
relationships to which the new offences of engaging in sexual activity
with a young person 16 years or over and under 18 where the defendant
is in a position of trust or authority in relation to the young person
(sections 272.12 and 272.13, described in detail below) to certain
specific relationships. The offences in new sections 272.12 and 272.13
will extend criminal liability in certain situations involving persons
aged above the age of consent (but still below 18).
Subsection 272.10(4) will apply absolute liability to
subparagraph 272.10(1)(b)(i) (that the child has a mental impairment).
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact is not available. Accordingly, the prosecution will be required
to prove that the child had a mental impairment, but not that the
person knew or was reckless as to the fact that the child had a mental
impairment.
Applying absolute liability to this element of the offence is
appropriate because the defendant's belief about whether the child had
a mental impairment is peculiarly within the knowledge of the
defendant. To ameliorate the dramatic effect of applying absolute
liability to this circumstance, a defence will be available to the
defendant under subsection 272.10(6), based on a belief that the child
did not have a mental impairment.
Subsection 272.10(5) will apply strict liability to
subparagraph 272.10(1)(b)(ii) (that the person was 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). Strict
liability is set out in section 6.1 of the Criminal Code. The effect
of applying strict liability to an element of an offence will mean that
no fault element needs to be proved and the defence of mistake of fact
is available. Accordingly, the prosecution will be required to prove
that the person was in a position of trust or authority in relation to
the child, or that the child was otherwise under the care, supervision
or authority of the person, but will not need to prove that the person
knew this.
Applying strict liability to this element of the offence is appropriate
given it would be very unlikely that an offender was not aware that he
or she was, for example, the child's teacher, doctor or sports coach.
Accordingly it is not proposed to allow for a specific belief defence
in relation to the existence of a position of trust. However, the
application of strict, rather than absolute, liability will make
available the general defence of mistake of fact.
The defence of mistake of fact is set out in section 9.2 of the
Criminal Code. The defence provides that a person is not criminally
responsible for an offence that includes a physical element to which
strict liability applies if:
. at or before the time of the conduct constituting the physical
element, the person considered whether or not a fact existed, and is
under a mistaken but reasonable belief about those facts, and
. had those facts existed, the conduct would not have constituted an
offence.
The general defences under Part 2.3 of the Criminal Code will also be
available to a person accused of an offence under subsection 272.10.
In addition, subsections 272.10(6) will make a specific defence
available to a person accused of an offence under subsection 272.10(1)
where the matter of whether the child had a mental impairment is at
issue. Under subsection 272.10(6), subparagraph 272.10(1)(b)(i) will
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.
A defendant will bear a legal burden in relation to the matter in
subsection 272.10(6). Sections 13.4 and 13.5 of the Criminal Code
provide that in the case of a 'legal burden' defence, a defendant must
establish the elements of the defence on the balance of probabilities.
If this is done, it is then for the prosecution to refute the defence
beyond reasonable doubt. A legal burden is appropriate as whether the
defendant did not believe that the child had a mental impairment is a
matter peculiarly within the defendant's knowledge and not readily
available to the prosecution.
Subsection 272.10(7) will state that, in determining whether the
defendant had the belief mentioned in subsection 272.10(6), the trier
of fact may take into account whether the alleged belief was reasonable
in the circumstances. This will allow consideration of an objective
standard in relation to the defendant's belief.
Section 272.11 - Persistent sexual abuse of child outside Australia
Section 272.11 will create an offence of persistent sexual abuse of a
child under 16 years outside Australia. The purpose of this section is
to ensure that Australians who perpetrate ongoing or persistent sexual
abuse of a child overseas are able to be prosecuted in Australia. The
offence will enable prosecution in cases of sexual abuse over a period
of time where it may be difficult to prosecute the offender for a
particular instance of abuse.
Subsection 272.11(1) will create an offence where a person commits one
or more child sex tourism offences against a child outside Australia on
three or more separate occasions during any period. This offence will
be punishable by a maximum penalty of 25 years imprisonment.
An example of this type of offence is as follows. Person A is an
Australian citizen who goes to live overseas for several years. Whilst
living overseas, Person A conducts a sexual relationship with a 12 year
old child which involves repeated acts of sexual intercourse and other
sexual activity. The abuse occurs approximately once a fortnight over
a period of six months.
To establish this offence, the prosecution would need to prove beyond
reasonable doubt that:
. the person committed an underlying offence in relation to the same
person (the child)
. such an offence was committed on three or more separate occasions
during any period.
The offences that will constitute an underlying offence for the
purposes of subsection 272.11(1) include:
. subsection 272.8(1) (engaging in sexual intercourse with a child
outside Australia)
. subsection 272.8(2) (causing a child to engage in sexual intercourse
in presence of defendant outside Australia)
. subsection 272.9(1) (engaging in sexual activity (other than sexual
intercourse) with a child outside Australia), and
. subsection 272.9(2) (causing a child to engage in sexual activity
(other than sexual intercourse) in presence of defendant outside
Australia).
Subsection 272.11(2) will provide that there are no fault elements for
any of the physical elements which constitute the offence in subsection
272.11(1), other than the fault elements for the underlying offence.
The underlying offences themselves have specific physical and fault
elements that must be proved by the prosecution. The prosecution will
be required to establish beyond reasonable doubt all of the elements
constituting the relevant underlying offence, including any fault
elements applicable to that offence. Subsection 272.11(2) will make
clear that the prosecution does not need to prove any fault elements in
addition to those fault elements already applying to the underlying
offences.
Subsection 272.11(2) will also makes clear that the prosecution is not
required to prove that the defendant knew that he or she committed an
offence on three or more occasions. If the prosecution can satisfy the
requirements of the offence, that is establishing conduct on three or
more separate occasions during any period, the prosecution need not
prove that the defendant knew that he or she committed an offence on
three or more occasions. This is appropriate because the number of
times that the abuse occurred is not an element going to the essence of
the offence. If the prosecution proves beyond reasonable doubt that
the offender intentionally engaged in sexual activity with the child
victim three or more times, the offender's knowledge as to the number
of times this occurred is not relevant.
For example, in a prosecution for an offence against subsection
272.11(1) involving sexual intercourse with a child outside of
Australia on multiple occasions, the prosecution will need to establish
all of the elements of an offence against subsection 272.8(1) (engaging
in sexual intercourse with a child outside Australia). The prosecution
will need to prove each of the following elements of the offence in
subsection 272.8(1):
. the person intentionally engaged in sexual intercourse with a child,
. the child was, at the time the sexual intercourse was engaged in,
under 16 years of age, and
. the sexual intercourse was engaged in outside of Australia.
The prosecution will also be required to prove that the defendant
committed an offence against subsection 272.8(1) on at least three
separate occasions during any period.
Subsection 272.11(3) will provide that, for the avoidance of doubt, a
person does not commit the underlying offence for the purposes of
subsection 272.11(1) if the person has a defence to the underlying
offence. This subsection will make it clear that a defendant is able
to rely any defences that apply to the underlying offences which
constitute a charge under subsection 272.11(1).
For example, where a defendant is charged with an offence against
subsection 272.11(1) based on the commission of multiple underlying
offences against subsection 272.8(1), the defendant will be able to
rely on any available defence to subsection 272.8(1). This will
include any of the general defences available under Part 2.3 of the
Criminal Code, the defence of belief about age (section 272.16) and the
defence of a valid and genuine marriage (section 272.17).
Subsections 272.11(4) to 272.11(8) will set out certain specific
requirements relating to proof of this offence. This is necessary in
order to achieve the aims of this offence - that is, criminalising a
'sexual relationship' over a particular period of time. The offence
does not require proof of the dates or exact circumstances of the
occasions on which the conduct constituting the offence occurred, but
still provides for adequate safeguards for the accused.
Subsection 272.11(4) will provide that it is immaterial whether the
underlying offence, or the conduct constituting the underlying offence,
is the same on each occasion. This provision will make it clear that
an offence against subsection 272.11(1) may be committed even though
the type of sexual abuse committed on each separate occasion may vary.
For example, an offence against subsection 272.11(1) may be committed
where the defendant commits underlying offences against subsections
272.8(1) and (2) (engaging in sexual intercourse with a child and
causing a child to engage in sexual intercourse in the defendant's
presence) and subsections 272.9(1) and (2) (engaging in other sexual
activity with a child and causing a child to engage in other sexual
activity in the defendant's presence).
Subsection 272.11(5) will provide that in proceedings under section
272.11 it is not necessary to specify or to prove the dates or exact
circumstances of the alleged occasions on which the conduct occurred.
However, subsection 272.11(6) will provide that a charge of an offence
against section 272.11 must:
. specify with reasonable particularity the period during which the
offence against section 272.11 occurred; and
. describe the nature of the separate offences alleged to have been
committed during that period.
As such, the nature of each of the three offences, and the general
period in which they were alleged to occur, must be reasonably
particularised.
These provisions are intended to address difficulties that may be faced
by the prosecution in presenting evidence of particular acts with
sufficient precision. These difficulties may arise due to the victim
being very young when the conduct occurred, the fact that abuse may
have occurred regularly over a lengthy period of time and the fact that
there may be no clear distinction between incidences of abuse.
Subsections 272.11(5) and (6) aim to strike an appropriate balance
between enabling the prosecution of such abuse and ensuring that there
are adequate safeguards in place to protect the rights of the accused.
Subsection 272.11(7) will make clear what the trier of fact needs to be
satisfied of in order to find a person guilty of an offence against
subsection 272.11(1). The trier of fact must be satisfied beyond
reasonable doubt that the evidence establishes at least three separate
occasions during the period on which an underlying offence was
committed. While the trier of fact must be so satisfied about the
material facts of each of the three occasions, the trier of fact need
not be so satisfied about the dates or the order of these occasions.
Subsection 272.11(7) will also make clear that if the trier of fact is
a jury, and more than three such occasions are relied on as evidence of
the commission of the offence, that all the members of the jury must be
so satisfied about the same three incidents.
Subsection 272.11(8) will require that, if there is a jury in
proceedings for an offence against this section, the judge must warn
the jury of the requirements in subsection 272.11(7).
Subsection 272.11(9) will prevent a person who has been convicted or
acquitted of an offence against this section from being convicted of
another offence against an underlying offence that is alleged to have
been committed in relation to the child during the period during which
the person was alleged to have committed the offence against this
section. This is because this offence is directed at criminalising
'the relationship', that is, all of the conduct which occurs during a
particular period. It is appropriate that a person who has been
convicted or acquitted in relation to this relationship not be subject
to further proceedings for other instances of alleged abuse during this
particular period that may come to light.
Subsection 272.11(10) will make clear that subsection 272.11(9) does
not prevent an alternative verdict under section 272.28. Section
272.28 allows for an alternative verdict if the trier of fact is not
satisfied that the defendant is guilty of the offence in section
272.11, but is satisfied beyond reasonable doubt that the defendant is
guilty of one of the underlying offences.
Subsection 272.11(11) will prevent a person who has been convicted or
acquitted of an underlying offence from being convicted of an offence
against this section if any of the occasions relied on as evidence if
the commission of this offence include the conduct that constituted the
offence which the person was convicted or acquitted of.
Sections 272.12 and 272.13
Sections 272.12 and 272.13 will set out two offences aimed at criminalising
sexual intercourse or other sexual activity with a young person. The
offences will differ from standard child-sex offences in that they apply
specifically to victims aged between 16 and 18 years of age and require
proof of an additional element; namely, that there be a relationship of
trust or authority between the defendant and the young person.
Section 272.12 - Sexual intercourse with young person outside Australia -
defendant in position of trust or authority
Section 272.12 will create an offence of engaging in sexual intercourse
with a young person outside Australia where the offender is in a
position of trust or authority in relation to the young person.
Under subsection 272.12(1), it will be an offence to engage in sexual
intercourse with a young person who is at least 16 but under 18, where
the offender is in a position of trust or authority in relation to the
young person, and the sexual intercourse is engaged in outside
Australia. This offence will be punishable by a maximum penalty of ten
years imprisonment.
An example of this type of offence is as follows. Person A is an
Australian citizen who travels overseas. Person A takes up a position
as an English teacher in the overseas country. Person A has sexual
intercourse with Person B, who is a 17-year old student in Person A's
English class.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical element of the offence set out in paragraph 272.12(1)(a).
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intentionally engaged in sexual intercourse with another
person (the young person)
. the young person was at least 16 but under 18 at the time of the
conduct constituting the offence
. the person was in a position of trust or authority in relation to the
young person, and
. the sexual intercourse was engaged in outside Australia.
Under subsection 272.12(2), it will be an offence to cause a young
person to engage in sexual intercourse in the presence of the offender
outside Australia where the offender is in a position of trust or
authority in relation to the young person. This offence will be
punishable by a maximum penalty of ten years imprisonment.
An example of this type of offence is as follows. Person A is an
Australian citizen who travels overseas. Person A becomes social
worker at a local women's shelter in the overseas country. Person A
develops a close relationship with Person B a 17 year old girl taking
refuge at the women's shelter. Person A causes Person B to have sexual
intercourse with Person C in the presence of Person A.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out in paragraphs
272.12(2)(a). Subsection 272.12(3) will specify that the fault element
applying to the physical element in paragraph 272.12(2)(b) is
intention. To establish this offence, the prosecution will need to
prove beyond reasonable doubt that:
. the person intentionally engaged in conduct in relation to another
person (the young person)
. the person intended that conduct to cause the young person to engage
in sexual intercourse in the presence of the person
. the young person was at least 16 but under 18 when the sexual
intercourse was engaged in
. the person was in a position of trust or authority in relation to the
young person, and
. the sexual intercourse was engaged in outside Australia.
Subsection 272.12(4) will apply absolute liability to the physical
elements of the offences in paragraphs 272.12(1)(b) and (d) and (2)(c)
and (e), that the victim of the offence was at least 16 but under 18 at
the time of the sexual intercourse and the sexual intercourse was
engaged in outside Australia.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the victim was aged
between 16 and 17 at the time of the sexual intercourse or that the
sexual intercourse was engaged in outside Australia.
Absolute liability is appropriate and required for the element in the
offences that the victim was aged at least 16 but under 18 at the time
of the sexual intercourse given the intended deterrent effect of these
offences and the availability of a specific 'belief about age' defence
under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences that the sexual intercourse was engaged in outside Australia
because this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not
relate to the substance of the offence, but marks a jurisdictional
boundary between matters that fall within the legislative power of the
Commonwealth and those that do not. The issue of whether the person
intended to engage in the conduct in Australia or overseas is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Subsection 272.12(5) will apply strict liability to the physical
elements of the offences in paragraphs 272.12(1)(c) and (2)(d), that
the person was in a position of trust or authority in relation to the
young person.
Strict liability is set out in section 6.1 of the Criminal Code. The
effect of applying strict liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact is available. Accordingly, in relation to paragraphs 272.12(1)(c)
and (2)(d), the prosecution will not need to prove that the defendant
knew he or she was in a position of trust or authority in relation to
the victim.
The application of strict liability is appropriate for the element that
the defendant was in a position of trust or authority in relation to
the young person given it would be very unlikely that an offender was
not aware that he or she was, for example, the child's teacher or
doctor. However, the defendant will still have the general defence of
mistake of fact under section 9.2 of the Criminal Code available to
them.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.12(1) and 272.12(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.12(1) and
272.12(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.12(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
Section 272.13 - Sexual activity (other than sexual intercourse) with young
person outside Australia - defendant in position of trust or authority
Section 272.13 will create an offence of engaging in sexual activity
(other than sexual intercourse) with a young person outside Australia
where the offender is in a position of trust or authority in relation
to the young person.
Under subsection 272.13(1), it will be an offence to engage in sexual
activity (other than sexual intercourse) with a person who is at least
16 but under 18 (the young person), where the offender is in a position
of trust or authority in relation to the young person, and the sexual
activity is engaged in outside Australia. This offence will be
punishable by a maximum penalty of ten years imprisonment.
An example of this type of offence is as follows. Person A is an
Australian resident who travels overseas. Person A takes up a position
as an English teacher in the overseas country. Person A engages in
sexual activity with Person B, consisting of Person A touching Person B
sexually. Person B is a 17-year old student in one of Person A's
English classes.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical element of the offence set out in paragraph 272.13(1)(a).
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intentionally engaged in sexual activity (other than
sexual intercourse) with another person (the young person)
. the young person was at least 16 but under 18 at the time of the
conduct constituting the offence
. the person was in a position of trust or authority in relation to the
young person, and
. the sexual intercourse was engaged in outside Australia.
Under subsection 272.13(2) it will be an offence to cause a young
person to engage in sexual activity (other than sexual intercourse) in
the presence of the person outside Australia where the person is in a
position of trust or authority in relation to the young person. This
offence will be punishable by a maximum penalty of ten years
imprisonment.
An example of this type of offence is as follows. Person A is an
Australian citizen who travels overseas. Person A becomes a social
worker at a local women's shelter in the overseas country. Person A
develops a close relationship with Person B a 17 year old girl taking
refuge at the women's shelter. Person A causes Person B to engage in
sexual touching with Person C in the presence of Person A.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out in paragraph 272.13(2)(a).
Subsection 272.13(3) will specify that the fault element applying to
the physical element in paragraph 272.13(2)(b) is intention. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intentionally engaged in conduct in relation to another
person (the young person)
. the person intended that conduct to cause the young person to engage
in sexual intercourse in the presence of the person
. the young person was at least 16 but under 18 when the sexual
intercourse was engaged in
. the person was in a position of trust or authority in relation to the
young person, and
. the sexual intercourse was engaged in outside Australia.
Subsection 272.13(4) will apply absolute liability to the physical
elements of the offences in paragraphs 272.13(1)(b) and (d) and (2)(c)
and (e), that the victim of the offence was at least 16 but under 18 at
the time of the sexual intercourse and the sexual intercourse was
engaged in outside Australia.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the victim was aged
between 16 and 17 at the time of the sexual intercourse or that the
sexual intercourse was engaged in outside Australia.
Absolute liability is appropriate and required for the element in the
offences that the victim was aged at least 16 but under 18 at the time
of the sexual intercourse given the intended deterrent effect of these
offences and the availability of a specific 'belief about age' defence
under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences that the sexual intercourse was engaged in outside Australia
because this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not
relate to the substance of the offence, but marks a jurisdictional
boundary between matters that fall within the legislative power of the
Commonwealth and those that do not. The issue of whether the person
intended to engage in the conduct in Australia or overseas is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Subsection 272.13(5) will apply strict liability to the physical
elements of the offences in paragraphs 272.13(1)(c) and (2)(d), that
the person was in a position of trust or authority in relation to the
young person.
Strict liability is set out in section 6.1 of the Criminal Code. The
effect of applying strict liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact is available. Accordingly, in relation to paragraphs 272.13(1)(c)
and (2)(d), the prosecution will not need to prove that the defendant
knew he or she was in a position of trust or authority in relation to
the victim.
The application of strict liability is appropriate for the element that
the defendant was in a position of trust or authority in relation to
the young person given it would be very unlikely that an offender was
not aware that he or she was, for example, the child's teacher or
doctor. However, the defendant will still have the general defence of
mistake of fact under section 9.2 of the Criminal Code available to
them.
Subsection 272.13(6) will make available a defence to the offences in
subsection 272.13(1) or (2) where the young person was present but the
defendant did not intend to derive gratification. A person will be taken
not to have committed an offence against subsection 272.13(1) or (2) if:
. the conduct constituting the offence consists only of the young
person being present while sexual activity is engaged in by, or in
the presence of, the person, and
. the person did not intend to derive gratification from the young
person's presence during that activity.
This defence will be included to ensure that the offences do not apply in
cases where a young person happens to be present but there was no intention
on the part of that person to derive gratification from the young person's
presence. An example of such a situation could be where an adult engages
in sexual touching with another consenting adult and a young person walks
in on those adults while they are engaging in that activity. In such a
situation, the young person's presence is incidental rather than an aspect
of the activity from which the defendant intended to derive gratification.
A defendant will bear a legal burden in relation to the matter in
subsection 272.13(6). Sections 13.4 and 13.5 of the Criminal Code provide
that in the case of a 'legal burden' defence, a defendant must establish
the elements of the defence on the balance of probabilities. If this is
done, it is then for the prosecution to refute the defence beyond
reasonable doubt. A legal burden is appropriate as whether or not the
defendant derived gratification from something is a matter peculiarly
within the defendant's knowledge and not readily available to the
prosecution. The defendant is better placed to adduce evidence that he or
she did not intend to derive gratification from the presence of the child
during the activity concerned.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.13(1) and 272.13(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.13(1) and
272.13(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.13(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
Section 272.14 - Engaging in conduct to procure child to engage in sexual
activity outside Australia
Section 272.14 will create an offence of procuring a child to engage in
sexual activity outside Australia. The purpose of the offence is to
address gaps in the current law, which does not criminalise behaviour
leading up to actual sexual activity with a child. This will give law
enforcement the means to deal with preparatory conduct, without the
need to wait until a person has arrived in a foreign country and has
committed or near-committed a child sex tourism offence. The offence
would enable a person to be arrested before any contact with a child
occurs.
Under subsection 272.14(1), it will be an offence to engage in conduct
to procure a person under 16 (the child) to engage in sexual activity
outside Australia. This offence will be punishable by a maximum
penalty of 15 years imprisonment.
An example of this type of offence is as follows. A person befriends a
child using an internet chat room. The person advises the child that
s/he will be visiting the foreign country in which the child resides
and arranges to meet the child when s/he arrives in that country, in
order to engage in sexual activity with them.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out in paragraph 272.14(1)(a).
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intended to engage in conduct in relation to another
person (the child)
. the person did so with the intention of procuring the child to engage
in sexual activity (whether or not with the person) outside Australia
. the child was under 16, or the person believed the child was under
16, and
. either:
o the conduct referred to in paragraph (a) occurred wholly or partly
outside Australia
o the child is outside Australia when the conduct referred to in
paragraph (a) occurred, or
o the conduct referred to in paragraph (a) occurs wholly in Australia and
the child is in Australia when that conduct occurs.
Paragraphs 272.14(1)(a) and (b) will require the prosecution to prove,
beyond reasonable doubt, that a person engaged in conduct in relation
to a child with the intention of procuring that child to engage in
sexual activity, whether or not with the person, outside Australia.
Paragraph 272.14(1)(b) will contain the fundamental component of the
offence - the prosecution must prove that the person actually intended
to procure the child to engage in sexual activity. It would not be
sufficient to show that the person's conduct was of a nature that was
merely suggestive of that intent.
The offence will apply whether or not the person intended to procure
the child to engage in sexual activity with the person or with another
person. The offence is intended to criminalise the procuring conduct
itself and it does not matter whether the person was procuring the
child to engage in sexual activity with him/herself or with someone
else.
Sexual activity will be defined in the Dictionary (to be inserted by
item 10) to mean sexual intercourse or any other act 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).
The offence will also rely on a new definition of engage in sexual
activity to be inserted into the Dictionary of the Criminal Code by
item 96A. Without limiting when a person engages in sexual activity, a
person will be 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. These definitions are further
described in relation to items 6 and 10 below.
Subparagraph 272.14(1)(c)(i) will require the child to be under the age
of 16 years. Paragraph 272.14(1)(d) provides that the offence will
apply regardless of where, or by what means, the procuring took place,
provided the intention was to procure the child to engage in sexual
activity outside Australia. Subsection 272.14(2) will attach absolute
liability to the element of the offence in subparagraph 272.14(1)(c)(i)
(that the child is under the age of 16 years) and paragraph
272.14(1)(d) (relating to where the procuring conduct took place).
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the child was under
16, or that the defendant knew the matters referred to in paragraph
(d), regarding where the procuring conduct took place.
Absolute liability is appropriate and required for the element in the
offences that the child was under 16 given the intended deterrent
effect of these offences and the availability of a specific 'belief
about age' defence under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences relating to where the procuring conduct took place because
this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not
relate to the substance of the offence, but marks a jurisdictional
boundary between matters that fall within the legislative power of the
Commonwealth and those that do not. The issue of whether the person
intended to engage in the conduct in Australia or overseas is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Under subparagraph 272.14(1)(c)(ii), an offence will still be committed
where the person (the 'child') is someone whom the defendant believes
to be under the age of 16 years. This is necessary to cater for a
standard investigatory technique, where an officer assumes the identity
of a fictitious child, interacting with a potential predatory adult
over the internet, and arresting that adult before they have the
opportunity to sexually abuse a real child. Thus, a person who engages
in conduct to procure a child to engage in sexual activity outside
Australia will not be able to escape liability for an offence even if
their conduct was not ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient to be under a certain age is consistent with the fault
element of intention, which provides that someone has intention with
respect to a circumstance if he or she believes it exists or will
exist.
Subsection 272.14(3) will provide that a person may still be found
guilty of an offence even if it is impossible for the sexual activity
to take place. This is consistent with the fundamental component of
the offence - criminalising the person's intention to engage in sexual
activity with the child. It will not matter if it is impossible for
the sexual activity to take place.
Subsection 272.14(4) will complement the element of the offence in
subparagraph 272.14(1)(c)(ii) that an offence is committed where the
person believes that the 'child' is under 16. For the purposes of the
offence, it will not matter if the child is a fictitious child
represented to the person as a real person. This will cater for the
situation where the 'child' is actually a law enforcement officer
posing as a child.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.14(1) and 272.14(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.14(1) and
272.14(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.14(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
Section 272.15 - Engaging in conduct to 'groom' child to engage in sexual
activity outside Australia
Section 272.15 will create an offence of grooming a child to engage in
sexual activity outside Australia. The purpose of the offence is to
address gaps in the current law, which does not criminalise behaviour
leading up to actual sexual activity with a child. The offence would
enable a person to be arrested before any contact with a child occurs.
Under subsection 272.15(1), it will be an offence to groom a child with
the intention of making it easier to procure a person under 16 (the
child) to engage in sexual activity outside Australia. This offence
will be punishable by a maximum penalty of 12 years imprisonment.
An example of this type of offence is as follows. Person A is in
Australia and befriends a child in a foreign country. Person A
indicates via email and phone conversations with the child that s/he
has romantic feelings for the child. Person A does so with the
intention of procuring the child to engage in sexual activity outside
Australia at some future date.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out in paragraph 272.15(1)(a).
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intended to engage in conduct in relation to another
person (the child)
. the person did 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
. the child was under 16, or the person believed the child was under
16, and
. either:
o the conduct referred to in paragraph (a) occurred wholly or partly
outside Australia
o the child is outside Australia when the conduct referred to in
paragraph (a) occurred, or
o the conduct referred to in paragraph (a) occurs wholly in Australia and
the child is in Australia when that conduct occurs.
Paragraphs 272.15(1)(a) and (b) will require the prosecution to prove,
beyond reasonable doubt, that a person engaged in conduct in relation
to a child with the intention of making it easier to procure that child
to engage in sexual activity, whether or not with that person, outside
Australia. Paragraph 272.15(1)(b) will contain the fundamental
component of the offence - the prosecution must prove that the person
actually intended to make it easier to procure the child to engage in
sexual activity. It will not be sufficient to show that the person's
conduct was of a nature that was merely suggestive of that intent.
As the offence is intended to criminalise the grooming conduct itself
it will not matter whether the person was procuring the child to engage
in sexual activity with him/herself or with someone else.
Sexual activity will be defined in the Dictionary (to be inserted by
Item 10) to mean sexual intercourse or any other act 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).
The offence will also rely on a new definition of engage in sexual
activity to be inserted into the Dictionary of the Criminal Code by
item 96A. Without limiting when a person engages in sexual activity, a
person will be 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. These definitions are further
described in relation to items 6 and 10 below.
Subparagraph 272.15(1)(c)(i) will require the child to be under the age
of 16 years. Paragraph 272.15(1)(d) provides that the offence will
apply regardless of where, or by what means, the procuring took place,
provided the intention was to procure the child to engage in sexual
activity outside Australia. Subsection 272.15(2) will apply absolute
liability to the element of the offence in subparagraph 272.15(1)(c)(i)
(that the child is under the age of 16 years) and
paragraph 272.15(1)(d) (relating to where the grooming conduct took
place).
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that the child was under
16, or that the defendant knew the matters referred to in paragraph
(d), regarding where the procuring conduct took place.
Absolute liability is appropriate and required for the element in the
offences that the child was under 16 given the intended deterrent
effect of these offences and the availability of a specific 'belief
about age' defence under section 272.16 (discussed in detail below).
Absolute liability is appropriate and required for the element of the
offences relating to where the grooming conduct took place because this
element is a jurisdictional element of the offence. A jurisdictional
element of the offence is an element that does not relate to the
substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth and
those that do not. The issue of whether the person intended to engage
in the conduct in Australia or overseas is not relevant to their
culpability. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers.
Under subparagraph 272.15(1)(c)(ii), an offence will still be committed
where the person (the 'child') is someone whom the defendant believes
to be under the age of 16 years. This is necessary to cater for a
standard investigatory technique, where an officer assumes the identity
of a fictitious child, interacting with a potential predatory adult
over the internet, and arresting that adult before they have the
opportunity to sexually abuse a real child. Thus, a person who engages
in conduct to procure a child to engage in sexual activity outside
Australia will not be able to escape liability for an offence even if
their conduct was not ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient to be under a certain age is consistent with the fault
element of intention, which provides that someone has intention with
respect to a circumstance if he or she believes it exists or will
exist.
Subsection 272.15(3) will provide that a person may still be found
guilty of an offence even if it is impossible for the sexual activity
to take place. This is consistent with the fundamental component of
the offence - criminalising the person's intention to engage in sexual
activity with the child. It will not matter if it is impossible for
the sexual activity to take place.
Subsection 272.15(4) will complement the element of the offence in
subparagraph 272.14(1)(c)(ii) that an offence is committed where the
person believes that the 'child' is under 16. For the purposes of the
offence, it will not matter if the child is a fictitious child
represented to the person as a real person. This will cater for the
situation where the 'child' is actually a law enforcement officer
posing as a child.
The general defences available under Part 2.3 of the Criminal Code will
be available to a person accused of an offence under both subsections
272.15(1) and 272.15(2). In addition, a specific defence of belief of
age will apply to an offence under both subsections 272.15(1) and
272.15(2). A specific defence relating to the existence of a valid and
genuine marriage will be available to defendants charged with an
offence under subsection 272.15(1). These two specific defences are
described in detail in relation to sections 272.16 and 272.17
respectively below.
Section 272.16 - Defence based on belief about age
Section 272.16 will be based on existing sections 50CA, 50CC and 50CD of
the Crimes Act. The section will make available a defence based on a
belief about age. The purpose of the defence is to ameliorate the effect
of applying absolute liability to the circumstance of the offences that the
child was a certain age.
Subsection 272.16(1) will provide a defence to offences committed under
proposed sections 272.8 or 272.9. The defence will apply if, at the time
of the sexual intercourse or sexual activity, the defendant believed that
the person who was under 16, was actually 16 or over.
Subsection 272.16(2) will provide a defence to offences committed under
sections 272.15 or 272.16. The defence will apply if, at the time of the
sexual intercourse or sexual activity, the defendant believed that the
person, who was under 18, was actually 18 or over.
Subsection 272.16(3) will provide a defence to offences committed under
sections 272.14 or 272.15. The defence will apply if, at the time the
defendant engaged in the conduct constituting the offence, the defendant
believed that the person, who was under 16, was actually 16 or over.
A defendant will bear a legal burden in establishing these defences and,
accordingly, must establish the elements of the defences on the balance of
probabilities (see section 16.4 and 16.5 of the Criminal Code). This is
the same as the defence in section 50CA established by current section 50CC
of the Crimes Act, despite a note attached to section 50CA that indicates
only an evidential burden applies. A legal burden is appropriate because
the defence relates to a matter that is peculiarly within the defendant's
knowledge and not available to the prosecution.
Subsection 272.16(4) will provide that in determining whether the defendant
had the required belief, the trier of fact may take into account whether
the alleged belief was reasonable in the circumstances. This subsection is
included to prevent a defendant avoiding criminal liability simply by
asserting a belief that the victim was 18 or older at the time of the
offence where there is no reasonable basis for that belief.
Section 272.17 - Defence based on valid and genuine marriage
Section 272.17 is based on existing sections 50CB and 50CC of the Crimes
Act with one modification: the defence based on valid and genuine marriage
will no longer be available where a person outside the marital relationship
is directly involved (such as in subsections 272.8(2) and 272.9(2) which
deal with causing a child to engage in sexual intercourse or other sexual
activity in the presence of the defendant).
Sovereignty issues prevent the Federal Government from regulating the
legality of marriage, or of cultural practice more generally, in the
territory of a foreign country. If the defence were not provided for, a
couple married under the laws of a particular country (which may differ to
the minimum age requirements under Australian law) and who were acting
lawfully under the laws of the country in which they were in, may be
subject to criminal charges under the Australian child sex tourism offence
regime.
Subsection 272.17(1) will provide a defence to offences under subsections
272.8(1), 272.9(1), 272.12(1) or 272.13(1) where at the time of the sexual
intercourse or sexual activity, there existed between the defendant and the
child a valid and genuine marriage.
Subsection 272.17(2) will provide a defence to offences under subsections
272.14(1) or 272.15(1) where at the time the defendant committed the
offence, there existed between the defendant and the child a valid and
genuine marriage.
It will only be a defence if at the time of the sexual intercourse or
sexual activity (in the case of 272.8(1), 272.9(1), 272.12(1) or 272.13(1),
or at the time the defendant committed the offence (in the case of
272.14(1) or 272.15(1)):
. a marriage existed between the person under 16 and the defendant
which was valid, or recognisable as valid, under the law of the
country:
o where the marriage was solemnised
o where the offence was allegedly committed, or
o of the defendant's residence or domicile, and
. the marriage was genuine at the time it was entered into.
The requirement that marriage be genuine at the time it was entered into is
intended to prevent the use of a sham or fictitious marriage as a defence.
A defendant will bear a legal burden in establishing these defences and,
accordingly, must establish the elements of the defences on the balance of
probabilities (see section 13.4 and 13.5 of the Criminal Code). This is
the same as the burden for the defence in section 50CB established by
current section 50CC of the Crimes Act, despite a note attached to section
50CB that indicates only an evidential burden applies.
A legal burden is appropriate as the child's marital status is not an
element of the offence and the matter required to be proved (that there was
a genuine marriage and that it was valid in a foreign country) are matters
peculiarly within the knowledge of the defendant.
Subdivision C - Offences of benefiting from, encouraging or preparing to
commit sexual offences against children outside Australia
Subdivision C will insert three new offences directed at commercial child
sex tour operators and preliminary conduct engaged in by child sex clients.
Section 272.18 will insert an offence of benefiting from offences against
Division 272 (based on existing section 50DA of the Crimes Act). Section
272.19 will insert an offence of encouraging an offence against Division
272 (based on existing section 50DB of the Crimes Act). Section 272.20
will insert a new offence of preparing for or planning an offence against
Division 272.
Section 272.18 - Benefiting from offences against this Division
This section will be based on existing section 50DA of the Crimes Act, with
one modification: the maximum penalty will be increased from 17 years to 20
years imprisonment.
The purpose of the offence is to specifically target the organisers and
promoters of child sex tourism. The section will make it an offence for a
person to engage in conduct, whether in Australia or overseas, with the
intention of benefiting (whether financially or otherwise) from an offence
against this Division. The offence is only made out if the conduct is
reasonably capable of resulting in that person benefiting from an offence
against this Division.
An example of this offence would be a person receiving money in return for
organising another person's travel to a foreign country to engage in sexual
activity with a child.
Consistent with the drafting of offences in the Criminal Code, the physical
elements of this offence have been placed in separate paragraphs. The
corresponding fault element to each physical element is either stated in
the provision, or read into the provision by virtue of section 5.6 of the
Criminal Code.
Paragraphs 272.18(1)(a) and (b) will require proof that a person engaged in
conduct with an intention of benefiting from an offence against this
Division. By contrast, absolute liability applies to the circumstance that
the conduct is reasonably capable of resulting in the person benefiting
from such an offence. This is because it is an objective fact, established
by reference to an objective standard that does not relate to culpability
(for example, that the defendant intended, knew, was reckless or negligent
that the circumstance existed).
An offence will be committed against section 272.18 as soon as the person
engages in the relevant conduct.. It is irrelevant whether an offence
against this Division (that is, a sexual offence against a child outside
Australia) occurs or has occurred. Therefore, a person who received money
in exchange for organising another person's travel to a foreign country for
the purpose of engaging in child sex tourism will still be guilty of the
offence in section 272.18 even if the other person did not ultimately
travel to the foreign country and engage in sexual activity with a child.
The maximum penalty for this offence will be 20 years imprisonment, which
is three years higher than for the existing offence in section 50DA of the
Crimes Act. This is because the penalty for this offence is intended to
mirror the maximum penalties for the most serious substantive child sex
tourism offences (the sexual intercourse offence and sexual conduct
offences), which will be raised to 17 and 20 years imprisonment
respectively.
Section 272.19 - Encouraging offence against this Division
This section will be based on existing section 50DB of the Crimes Act, with
one modification: the maximum penalty will be increased from 17 years to 20
years imprisonment.
The purpose of this offence is similar to new section 272.18, but
proscribes acts (or omissions) performed with the intention of
'encouraging' an offence under this Division (other than an offence under
this section) if the act (or omission) is reasonably capable of encouraging
such conduct.
An example of this offence would be where a person places an advertisement
in a newspaper advertising the provision of assistance to persons to travel
outside Australia in order to engage in child sex tourism.
Consistent with the drafting of offences in the Criminal Code, the physical
elements of this offence have been placed in separate paragraphs. The
corresponding fault element to each physical element is either stated in
the provision, or read into the provision by virtue of section 5.6 of the
Criminal Code.
Paragraphs 272.19(1)(a) and (b) will require proof that a person engaged in
conduct with an intention of encouraging an offence against this Division.
By contrast, absolute liability will apply to the circumstance that the
conduct is reasonably capable of encouraging such an offence. This is
because it is an objective fact, established by reference to an objective
standard that does not relate to culpability (for example, that the
defendant intended, knew, was reckless or negligent that the circumstance
existed).
An offence will be committed against section 272.19 as soon as the person
engages in the relevant conduct. It is irrelevant whether an offence
against this Division (that is, a sexual offence against a child outside
Australia) occurs or has occurred. Therefore, a person who advertised an
offer to assist another person to travel outside Australia to engage in a
child sex tourism offence will still be guilty of the offence in section
272.19 even if the other person did not ultimately travel to the foreign
country and engage in sexual activity with a child.
The maximum penalty for this offence will be 20 years imprisonment, which
is three years higher than for the existing offence in section 50DB of the
Crimes Act. This is because the penalty for this offence is intended to
mirror the maximum penalties for the most serious substantive child sex
tourism offences (the sexual intercourse offence and sexual conduct
offences), which will be raised to 17 and 20 years imprisonment
respectively.
Section 272.20 - Preparing to commit offence against this Division
Section 272.20 will criminalise preparing to commit an offence involving
sexual intercourse or other sexual activity with a child or a young person,
or an offence involving benefiting from such conduct, outside of Australia.
The purpose of the offence is to prohibit preliminary steps being taken by
a person who wishes to participate in child sex tourism and to allow
intervention prior to the child being harmed.
Under subsection 272.20(1), it will be an offence to do an act with the
intention of preparing for, or planning, an offence against sections 272.8
(sexual intercourse offence), 272.9 (sexual activity offence), 272.10
(aggravated offence), 272.11 (persistent sexual abuse of a child outside
Australia), 272.18 (benefiting from an offence against this Division).
This offence will be punishable by a maximum penalty of ten years
imprisonment.
An example of this type of offence is as follows. Person A is in Australia
and uses the Internet to research and collect information about the child
sex tourism industry in a particular destination overseas. Person A
contacts child sex tour operators and asks if they can organise the supply
of a child under 16 for the purpose of engaging in sexual intercourse in
that destination. Person A books flights and accommodation in that
destination.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical element of the offence set out in paragraph 272.20(1)(a). To
establish this offence, the prosecution would need to prove beyond
reasonable doubt that:
. the person intentionally did an act, and
. the person did so with the intention of preparing for, or planning,
an offence against section 272.8, 272.9, 272.10, 272.11, or 272.18.
It will not be an offence to prepare to commit an offence against section
272.19 (encouraging an offence against this Division). This is appropriate
because the encouraging offence is already directed at conduct that is
preparatory in nature.
Under subsection 272.20(2), it will be an offence to do an act with the
intention of preparing for, or planning, an offence against sections 272.12
(sexual intercourse with a young person outside Australia - defendant in
position of trust or authority) or 272.13 (sexual activity (other than
sexual intercourse) with young person outside Australia - defendant in a
position of trust or authority). This offence will be punishable by a
maximum penalty of five years imprisonment.
Including a separate offence of preparing to commit the offences in
sections 272.12 and 272.13 is necessary because the offences in these
sections carry penalties of ten years and seven years respectively. The
offences are directed at conduct of a slightly less serious nature, that
is, sexual offences against persons aged 16 or over and under 18 years old.
Accordingly, it is appropriate that preparing to engage in these two
offences carry a maximum penalty of five, rather than ten, years.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical element of the offence set out in paragraph 272.20(2)(a). To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person intentionally did an act, and
. the person did so with the intention of preparing for, or planning,
an offence against section 272.12 or 272.13.
Given the offences are directed at behaviour at the planning, or
formulative, stage, it is appropriate to impose the fault element of
intention on both of the elements of the offence. This will ensure that a
person will only be guilty of this offence where there is sufficient
evidence that the person intended to prepare for, or plan, a child sex
tourism offence.
The maximum penalty for the offences will be ten years imprisonment, or
five years in the case of preparing or planning an offence against sections
272.12 or 272.13. While persons who attempt to commit offences are
generally subject to the same penalty as if the actual offence had been
carried out, the proposed preparatory offence is intended to capture
behaviour at the planning stage, rather than the more advanced stage at
which an ancillary offence of attempt is intended to apply. As a result,
it is appropriate to apply a lesser penalty than the specific offences
which are being prepared or planned for. This does not prevent a person
being charged with an ancillary offence of attempt in cases where it is
considered that the conduct constituted an attempt to commit the offence.
Under paragraph 272.20(3)(a), both offences will apply whether the
preparatory or planning act is done within or outside Australia. This is
consistent with the existing benefiting and encouraging offences, which
similarly apply whether the benefiting or encouraging conduct occurs within
or outside Australia. Advances in technology, and the expansion of the
Internet, has lead to an increased incidence of 'strategic child sex
offending'. That is, offenders have become increasingly sophisticated in
their networking activities and are more able to access information about
where to go, who to meet and what to ask for. As such, offenders are more
easily able to organise participation in child sex tourism from their own
home in Australia. However, the offence which they are intending to engage
in will still have to be a child sex tourism offence that applies to
conduct outside of Australia.
Under paragraph 272.20(3)(b), both preparatory offences will apply whether
or not the child sex tourism offence that is prepared for is in fact
committed. This is consistent with the intention behind the offence. That
is, that the offence is intended to allow intervention by law enforcement
prior to a child actually being harmed.
Under paragraph 272.20(3)(c), both offences will apply whether or not the
act is done in preparation for, or planning, a specific offence against a
provision referred to in subsections (1) or (2). This clarifies that it is
not necessary for the prosecution to identify a specific offence - it will
be sufficient for the prosecution to prove that the particular conduct was
related to 'an' offence. This ensures that the offence will be available
where a person has planned a range of activities preparatory to committing
a child sex tourism offence, that are still in formative stages. For
example, the person may not necessarily have decided on a particular
target, time or date or other specific particulars of the elements that
would constitute one of the specified child sex tourism offences.
Under paragraph 272.20(3)(d), both preparatory offences will apply whether
or not the act is done in preparation for, or planning, more than one
offence against a provision referred to in subsections (1) or (2). This
clarifies that the offence will still apply where a person has engaged in
preparatory conduct in relation to several child sex tourism offences.
Subdivision D - Video link evidence
This subdivision will allow the use of video evidence in relation to child
sex offences committed outside Australia. Subdivision D replicates
Division 5 of Part IIIA of the Crimes Act with only some minor drafting and
referencing changes. The substance of the provisions remains the same.
Section 272.21 - When court may take evidence by video link
This section is based on existing section 50EA (when the court may take
evidence by video link) and 50EB (motion of parties) of the Crimes Act. It
will allow a witness to give evidence by video link on application of a
party to the proceedings if:
. the witness is willing to give evidence from outside Australia
. he or she is not a defendant in the proceedings
. the facilities for taking such evidence (in accordance with the
requirements of proposed section 272.22) are or can reasonably be
made available
. the court is satisfied that the witness's attendance in Australia
would:
o cause unreasonable expense or inconvenience, or
o cause the witness psychological harm or unreasonable distress,
or
o cause the witness to become so intimidated or distressed that
his/her reliability as a witness would be significantly reduced,
and
. the court is satisfied that it is consistent with the interests of
justice for the evidence to be taken by video link.
As the provisions dealing with child sex offences committed outside
Australia are international in nature, it is likely that witnesses will be
living outside of Australia. To maximise the ability of the courts to
obtain relevant witness evidence, it is important that the evidence can be
obtained by video link. This will ensure that witnesses are not precluded
from giving their evidence due to cost or other matters that arise due to
the international nature of the crime.
Section 272.22 - Technical requirements for video link
This section is based on existing section 50EC of the Crimes Act. The
provision relates to the requirement in proposed paragraph 272.22(c) and
will provide that video link evidence is not to be given unless the place
where the court is sitting and the place where the evidence is to be given
are each equipped with video facilities to enable the persons whom the
court considers appropriate to see and hear each other via the video-link.
Section 272.23 - Application of laws about witnesses
This section is based on existing section 50ED of the Crimes Act. It will
provides that a witness who gives video link evidence is taken to be giving
it at the place where the court is sitting.
The proposed note in this section will make it clear that the effect of
proposed section 272.23 is to apply local Australian law to the giving of
evidence by video link, including laws relating to the rules of evidence,
procedure, contempt of court and perjury.
Section 272.24 - Administration of oaths and affirmations
This section is based on existing section 50EE of the Crimes Act. It will
provide for the oath or affirmation to be administered either by the
Australian court over the video link or by an authorised person at the
place where the witness is to give evidence on behalf of the court. If the
oath or affirmation is administered at the place where the witness is to
give evidence, it is done on behalf of the Australian court and at the
court's direction.
Section 272.25 - Expenses
This section is based on existing section 50EF of the Crimes Act. It will
authorise the court to make orders for the payment of expenses incurred in
connection with the giving of evidence by video link. This will allow the
court to obtain evidence it thinks will be useful for the case, when the
other country will not or cannot fund the exercise.
Section 272.26 - Other laws about foreign evidence not affected
This section is based on existing section 50EG of the Crimes Act. It will
expressly preserve the operation of other laws relating to the taking of
evidence from overseas witnesses for the purposes of proceedings concerning
offences against this proposed Division.
Subdivision E- Other rules about conduct of trials
Subdivision E will stipulate other rules about the conduct of trials in
relation to child sex offences committed outside Australia. Subdivision E
is the same as Division 6 of Part IIIA of the Crimes Act with only some
minor drafting and referencing changes. The substance of the provisions
remains the same.
Section 272.27 - Certain material taken to be evidence of age
With the exception of subsection 272.27(1), this section is based on
existing section 50FA of the Crimes Act. The purpose of this provision is
to address the particular evidential difficulties faced in prosecutions for
child sex tourism, which are international in nature and rely on evidence
from the country in which the offence occurs.
Subsection 272.27(1) is based on an existing provision in subsection
474.28(3) concerning existing carriage service grooming and procuring
offences. It will provide that evidence that the recipient 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. The requirement to prove the defendant's
belief about the age of the participant is a significant burden of proof
for the prosecution to overcome. This provision will ensure that that the
prosecution can rely on representations made to a defendant (eg in an
online internet exchange from the participant) relating to the age of the
participant in discharging that burden.
Subsection 272.27(2) will provide that, in determining for the purposes of
the Division whether a person is or was at a particular time under 16, or
how old a person is or was at a particular time, a jury or court may have
regard to, as evidence, the appearance of the person, medical or other
scientific opinion and documents being or purporting to be official or
medical records of a foreign country or copies of such records. This will
allow the court to consider a variety of sources of evidence when, for
example, definitive evidence such as a genuine birth certificate of the
victim is not available.
Subsection 272.27(3) will provide that the section does not:
. make any other kind of evidence inadmissible, or
. relieve the prosecution authorities from the duty of making every
effort to obtain the best evidence of age of the person.
Subsection 272.27(4) will provide that where subsection 272.27(2) is relied
upon, the court must warn the jury that it must be satisfied beyond
reasonable doubt that the person in question:
. is, or was at a particular time, under 16, or
. is, or was at a particular time, of a particular age.
Section 272.28 - Alternative verdicts
This section is based on existing section 50FB of the Crimes Act. It will
allow the jury to return alternative verdicts in certain cases where it is
satisfied that the accused is not guilty of the offence charged but is
guilty of another offence under the Division.
For example, if the defendant is on trial for an offence against new
subsection 272.8(1) (engaging in sexual intercourse with child outside
Australia) and the jury is not satisfied that the defendant is guilty of an
offence against that section, but is satisfied that he or she is guilty of
an offence against new subsection 272.9(1) (engaging in sexual activity
(other than sexual intercourse) with child outside Australia), it will be
able to find the defendant guilty of the offence against section 272.9
instead.
This section will also make clear that the defendant may only be found
guilty of an alternative offence if the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Section 272.29 - Double jeopardy
This section is based on existing section 50FC of the Crimes Act. It will
make it clear that a person is not liable to prosecution for an offence
against this Division for conduct for which he or she has already been
convicted or acquitted in another country for offences against the law of
that country.
Section 272.30 - Sentencing
This section is based upon section 50FD of the Crimes Act. Subsection
272.30(1) will provide that in sentencing a person convicted of an offence
against Subdivision B (sexual offences against children overseas), the
court must take into account the age and maturity of the person in relation
to whom the offence was committed, where these matters are relevant and
known to the court.
The intention behind this provision is to allow the court to consider the
unique circumstances of any case.
Examples of situations in which different considerations may apply are as
follows:
. P1 is a mature 15 year old who has been in a long term relationship
with P2 who has just turned 18 and they have sexual intercourse
outside Australia.
. P1 is 11 years old and P2 is 60 years old. P2 engages in sexual
intercourse with P1 outside Australia.
The first and second examples are very different situations and the
court will have to consider differences of situation to the extent
that they are relevant and known to the court. It is not intended
that the sexual history of the victim be taken into account when
considering their maturity.
To avoid any doubt subsection 279.30(2) will provide that the matters
listed in proposed subsection 272.30(1) are in addition to any other
matters which the court must take into account when sentencing, such as
those listed in section 16A(2) of the Crimes Act.
Section 272.31 - Consent to commencement of proceedings where defendant
under 18
This section will provide that 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.
The child sex tourism offence regime does not require that the person
who commits the offence be over 18 years of age. Although the average
age of offenders that have been convicted under the child sex tourism
provisions is 54 years old (the youngest convicted so far has been 40
years old), it is considered that there should be flexibility to
prosecute persons under the age of 18 years of age who sexually exploit
children overseas.
However, following the introduction of the child sex tourism offence
regime in 1994, the Attorney-General issued a direction under section 8
of the Director of Public Prosecutions Act 1983 (Cth) that proceedings
for alleged offences against the child sex tourism regime should not be
instituted against a person under 18 years of age without the consent
of the Attorney-General. This direction is still in place.
This section will enshrine this direction in legislation. This will
reinforce the existing safeguard in place against inappropriate
prosecution of a person under 18 years of age where the 'perpetrator'
and the 'victim' are of similar age.
Division 273 - Offences involving child pornography material or child abuse
material outside Australia
New Division 273 of the Criminal Code will contain a new suite of offences
directed at dealings in child pornography and child abuse material
overseas.
Possessing, producing or distributing child pornography material or child
abuse material within Australia, or unlawfully importing such material into
Australia, is currently criminalised by Commonwealth, State and Territory
offences. However, these existing child pornography and child abuse
material offences do not have extraterritorial effect. Many countries do
not have effective laws against child pornography and child abuse material,
or are unwilling or unable to enforce them. This means that an Australian
could travel overseas and make or purchase child pornography or child abuse
material and escape punishment, even though the very same behaviour, if
committed in Australia or through the Internet, would be a serious criminal
offence.
Division 273 will criminalise possessing, controlling, producing,
distributing or obtaining child pornography material or child abuse
material outside Australia. It will also include an aggravated offence
targeted at involvement in child pornography networks. The proposed new
offences will complement the existing child sex tourism offence regime
and ensure comprehensive coverage of child sex-related criminal
behaviour by Australians overseas.
Subdivision A - Preliminary
Section 273.1 - Definitions
Section 273.1 will insert a number of definitions for the purposes of new
Division 273.
Subsection 273.1 will provide that, subject to subsections 273.1(2)
(definition of a person 'having possession or control of material') and
273.1(3) (definition of a person 'producing, distributing or obtaining
material'), the definitions in Part 10.6 of the Criminal Code, which relate
to telecommunications offences, will also apply to Division 273.
For the purposes of the proposed new offences in Subdivision B, subsection
273.1(2) will define possession or control as including having possession
of a computer or data storage device, having possession of a document in
which material is recorded or having control of material held in a computer
that is in the possession of another person (whether inside or outside
Australia).
Subsection 273.1(3) will define producing, distributing or obtaining
material as engaging in such conduct in relation to material held or
contained in a computer or data storage device, or a document in which the
material is recorded.
Subsection 273.1(4) will provide that section 473.4 of the Criminal Code,
which sets out the matters that may be taken into account in deciding
whether material is offensive, will apply in relation to this Division.
The offensiveness test contained in section 473.4 is relevant to
determining whether material can be classed as either child pornography or
child abuse material as defined in Part 10.6 of the Criminal Code for the
purposes of this Division.
Section 273.2 - Who can be prosecuted for an offence committed overseas
Section 273.2 is based on existing section 50AD of the Crimes Act. The
section will define who may be prosecuted under Division 273 for offences
committed outside Australia. They are persons who, at the time of the
offence are:
. Australian citizens
. residents of Australia
. a body corporate under Australian law, or
. a body corporate that carries on its activities principally in
Australia.
The purpose of this section is to avoid extending the reach of the laws to
matters not properly the subject of Australian law enforcement activity.
Section 273.3 - Double jeopardy
Section 273.3 is based on existing section 50FC of the Crimes Act. This
provision will make it clear that a person is not liable to prosecution for
an offence for which he or she has already been convicted or acquitted in
another country for offences against the law of that country.
Section 273.4 - Saving of other laws
This section, based on existing section 50GA of the Crimes Act, will make
it clear that Division 272 does not limit or exclude 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
Subdivision B of Division 273 will set out two offences aimed at
criminalising conduct involving child pornography or child abuse material
by Australians outside Australia. It also includes an aggravated offence
which will apply where the offence involves conduct on three or more
occasions and involving two or more persons.
Section 273.5 - Possessing, controlling, producing, distributing or
obtaining child pornography material outside Australia
Section 273.5 will insert a new offence criminalising Australians dealing
in child pornography overseas. The purpose of the offence is to ensure
that conduct relating to child pornography which would be criminal if
committed inside Australia is also an offence if engaged in outside
Australia.
Subsection 273.5(1) will make it an offence for a person to possess,
control, produce, distribute or obtain child pornography material, or to
facilitate the production or distribution of such material, while that
person is outside Australia. This offence will be punishable by a maximum
penalty of 15 years imprisonment.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence, with the exception of section
273.5(1)(c), to which absolute liability applies. To establish this
offence, the prosecution would need to prove beyond reasonable doubt that:
. the person intended to possess, control, produce, distribute, obtain
or facilitate the production or distribution of material
. the person was reckless as to the circumstance that the material was
child pornography material, and
. the conduct referred to in paragraph (a) occurred outside Australia.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Child pornography material is defined in existing section 473.1
(definitions) of the Criminal Code (picked up by new subsection 273.1(1)).
The definition includes material that depicts or describes a child engaged
in sexual activity in a way that reasonable persons would regard as being,
in all the circumstances, offensive.
Under subsection 273.5(2), absolute liability will apply to paragraph
273.5(1)(c), that the conduct of possessing, controlling, producing,
distributing or obtaining child pornography material occurred outside
Australia.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. This means that the prosecution only needs to prove that
the conduct occurred outside Australia, and not that the defendant knew or
was reckless as to that fact.
Absolute liability is appropriate and required for the element that the
offence occurred outside Australia because this circumstance is a
jurisdictional element of the offence. A jurisdictional element of an
offence is an element that does not relate to the substance of the offence,
but marks a jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue of
whether the person intended to engage in the conduct in Australia or
overseas is not relevant to their culpability. This is consistent with
Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 273.6 - Possessing, controlling, producing, distributing or
obtaining child abuse material outside Australia
Section 273.6 will insert a new offence criminalising Australians dealing
in child abuse material overseas. The purpose of the offence is to ensure
that conduct relating to child abuse material which would be criminal if
committed inside Australia, is also an offence if engaged in outside
Australia.
Subsection 273.6(1) will make it an offence for a person to possess,
control, produce, distribute or obtain child abuse material, or to
facilitate the production or distribution of such material, while that
person is overseas. This offence will be punishable by a maximum penalty of
15 years imprisonment.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence, with the exception of paragraph
273.6(1)(c), to which absolute liability will apply. To establish this
offence, the prosecution would need to prove beyond reasonable doubt that:
. the person intended to possess, control, produce, distribute, obtain
or facilitate the production or distribution of material
. the person was reckless as to the circumstance that the material was
child abuse material, and
. the conduct referred to in paragraph (a) occurred outside Australia.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Child abuse material is defined in existing section 473.1 (definitions) of
the Criminal Code (which will be picked up by new subsection 273.1(1)).
The definition includes material that depicts or describes a child who is,
or appears or is implied to be, a victim of torture, cruelty or physical
abuse in a way that reasonable persons would regard as being, in all the
circumstances, offensive.
Under subsection 273.6(2), absolute liability will apply to paragraph
273.6(1)(c), that the conduct of possessing, controlling, producing,
distributing or obtaining child abuse material occurred outside Australia.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. This means that the prosecution will only need to prove
that the conduct occurred outside Australia, and not that the defendant
knew, or was reckless, as to that fact.
Absolute liability is appropriate and required for the element that the
offence occurred outside Australia because this circumstance is a
jurisdictional element of the offence. A jurisdictional element of an
offence is an element that does not relate to the substance of the offence,
but marks a jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue of
whether the person intended to engage in the conduct in Australia or
overseas is not relevant to their culpability. This is consistent with
Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 273.7 - Aggravated offence - offence involving conduct on 3 or more
occasions and more than one person
Section 273.7 will create an aggravated offence criminalising Australians
dealing in child pornography or child abuse material overseas. The purpose
of this offence, which is directed at offenders who are involved in child
pornography networks, is designed to reflect the increased levels of harm
to child victims resulting from the demand created by such large-scale
networks.
Subsection 273.7(1) will insert an aggravated offence that will apply if a
person commits an offence against subsection 273.5 or 273.6 (the underlying
offences) in the circumstances where the defendant had committed an
underlying offence on three or more separate occasions and the commission
of these offences involved two or more persons. These additional elements
justify the higher maximum penalty of 25 years imprisonment by which this
offence will be punishable.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical element of the offence in paragraph 273.7(1)(b). To establish
this offence, the prosecution will need to prove beyond reasonable doubt
that:
. the person committed either of the underlying offences (section 273.5
(possessing etc child pornography material outside Australia) or section
273.6 (possessing etc child abuse material outside Australia)), and
. the person committed these offences on three or more separate occasions,
and
. the person was reckless as to the circumstance that the commission of the
offences involved two or more people.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
The requirement in paragraph 273.7(1)(a) that the person must commit the
offence on three or more separate occasions will ensure that the aggravated
offence will only apply where a person has engaged in a sustained or
repeated course of conduct sufficient to warrant the application of a
higher penalty.
Paragraph 273.7(1)(b) will provide that the commission of each offence must
involve two or more people. As noted above, the purpose of this provision
is to target criminal networks engaged in offences involving child
pornography and/or abuse material. The requirement that two or more
persons must be involved is consistent with existing Commonwealth, State
and Territory definitions of organised criminal activity. The provision
also states that these persons must be involved in the commission of the
offence. This requirement is intended to exclude the victim from the list
of persons who may be considered to have involvement in an offence against
this section.
Subsection 273.7(2) makes clear that there is no fault element for the
physical element described in paragraph 273.7(1)(a) other than the
fault elements for the underlying offence. The underlying offences
themselves have specific physical and fault elements that must be
proved by the prosecution. The prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the
relevant underlying offence, including any fault elements applicable to
that offence.
The effect of this is that the prosecution will not have to prove any
fault element for the physical element in paragraph 273.7(1)(a) that
the offence was committed on three or more separate occasions. This is
appropriate because the circumstance that the offence occurred on three
or more occasions, similar to a jurisdictional element, is not an
element going to the substance of the offence. If the prosecution
proves beyond reasonable doubt that the offender intentionally engaged
in the relevant underlying offence three or more times, the offender's
knowledge as to the number of times this occurred is not relevant to
his or her culpability.
Subsection 273.7(3) will provide that, for the avoidance of doubt, a
person does not commit the underlying offence for the purposes of
paragraph 273.7(1)(a) if the person has a defence to the underlying
offence. This subsection makes it clear that a defendant is able to
rely on any defences that apply to the underlying offences constituting
a charge under subsection 273.7(1).
Section 273.7(4) will provide that it is not necessary for the conduct
constituting the aggravated offence to be the same on each occasion. This
reflects the fact that offenders who are involved in criminal networks are
likely to engage in several types of prohibited conduct. For example, a
person may produce child pornography, distribute it to other members of a
child pornography network, and be in possession of child abuse material
received from another member of the network. This person could be
convicted of an aggravated offence notwithstanding the fact that they
engaged in different forms of offending conduct on each of the three
occasions.
Subsection 273.7(5) will provide that a person who has been convicted or
acquitted of an aggravated offence will not be able to be convicted of an
offence against subsection 273.5 or 273.6 in relation to the conduct that
constituted the aggravated offence.
For example, a person who has been acquitted of an aggravated offence based
on three offences of possessing child pornography material cannot later be
convicted of an offence under section 273.5 of possessing of child
pornography material in relation to the same conduct.
However, paragraph 273.7(6) will state that subsection 273.7(5) does not
prevent the trier of fact from making an alternative verdict under section
273.8. This section provides that a trier of fact may find a defendant
guilty of an underlying offence as an alternative where they are satisfied
beyond reasonable doubt that the defendant committed an underlying offence,
but are unable to find that the defendant committed an aggravated offence.
Subsection 273.7(7) will provide that a person who has been convicted or
acquitted of an offence against section 273.5 or 273.6 will not be able to
be convicted of an aggravated offence under section 273.7 in relation to
the same conduct.
For example, a person who has been acquitted of an offence of possession of
child pornography material pursuant to section 273.5 cannot be convicted of
an aggravated offence based on the evidence of the offence for which they
have been acquitted, in addition to two further counts of possession.
Section 273.8 - Alternative verdict if aggravated offence not proven
Section 273.8 will allow the trier of fact to return an alternative verdict
if it is satisfied beyond reasonable doubt that the defendant is not guilty
of an offence against subsection 273.7(1) (an aggravated offence) but is
guilty of an offence against section 273.5 or 273.6 (an underlying
offence).
The purpose of this section is to ensure that offenders who have committed
offences against sections 273.5 or 273.6 do not escape conviction on these
lesser charges where an aggravated offence cannot be proven beyond
reasonable doubt, but a lesser charge can.
If a trier of fact hearing a prosecution for an offence against section
273.7 is satisfied that all elements of the offence are proven beyond
reasonable doubt except the aggravating elements, it is appropriate that it
be able to find the defendant guilty of an underlying offence under section
273.5 or 273.6.
Section 273.8 will also make clear that the defendant may only be found
guilty of an alternative offence if the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Subdivision C - Defences
Section 273.9 will set out the circumstances in which a person is not
criminally responsible for an offence in subdivision B.
The defences are modelled on the defences applying to comparable carriage
service offences in existing sections 474.21 (defences in respect of child
pornography material) and 474.24 (defences in respect of child abuse
material) of the Criminal Code and will protect people who have legitimate
reasons for possessing, controlling, producing, distributing or obtaining
child pornography material or child abuse material. Minor changes have
been made to those defences to make them appropriate for offences which
will occur outside Australia. For example, subsection 273.9(1) sets out a
defence of engaging in conduct for public benefit. Subsection 273.9(2)
sets out an exhaustive list of circumstances when conduct will be of public
benefit, including enforcing, monitoring compliance with, or investigating
a contravention of a law of, the Commonwealth or a State or Territory. The
defence now includes reference to a law of a foreign country in addition to
Commonwealth, State and Territory laws.
Some of the defences in proposed section 471.18 would be covered by the
general defence of lawful authority in section 10.5 of the Criminal Code.
However, that defence is not specific to the circumstances covered by these
defences and does not sufficiently cover all the types of people that would
be legitimately entitled to a defence for the proposed child pornography
material offences, particularly as the lawful authority defence only
applies to conduct justified or excused by or under Commonwealth law.
The defendant bears the evidential burden of pointing to evidence which
supports the defences outlined below. It will generally be much easier for
a defendant, rather than the prosecution, to produce evidence showing that
the circumstances to which the defences apply do in fact exist because such
evidence will be peculiarly within the knowledge of the defendant.
Section 273.9 - Defences to offences against this Division
Subsection 273.9(1) will provide a defence against section 273.5
(possessing, controlling, producing, distributing or obtaining child
pornography material outside Australia) and section 273.6 (possessing,
controlling, producing, distributing or obtaining child abuse material
outside Australia) to a defendant who can point to evidence to suggest that
their conduct is of public benefit and does not go beyond what is of public
benefit. The test is an objective one, meaning the motives or intentions
of the person who engaged in the conduct are not relevant and will not be
considered in determining whether the conduct is in fact of public benefit.
Subsection 273.9(2) will provide an exhaustive list of conduct that is of
public benefit. If a person engages in conduct that meets one of the four
criteria in subsection 273.9(2) it will be considered to be 'of public
benefit' for the purposes of proposed subsection 273.9(1) so long as the
conduct does not go beyond what is of the public benefit. This will be a
question of fact, to be determined by the trier of fact.
Paragraph 273.9(2)(a) will cover conduct that is necessary or assists in
enforcing a law of the Commonwealth, a State or a Territory or a foreign
country. This defence will have very limited application and will be
targeted at persons who may be required to engage in the offending conduct
as part of their duties in connection with law enforcement, but who are not
covered by the defence for law enforcement officers in subsection
273.9(4)(a).
For example, this defence would apply where an Australian criminologist
working in a foreign country examines child abuse material to assist law
enforcement agencies in the identification of victims of child abuse.
Paragraph 273.9(2)(b) covers conduct that is necessary or of assistance in
monitoring compliance with, or investigating a contravention of, a law of
the Commonwealth, a State or a Territory, or foreign country. This defence
will be targeted at officers of government agencies involved in monitoring
and investigative activity related to regulatory schemes that they
administer. For example, officers of the Department of Broadband,
Communications and the Digital Economy overseeing the functions of the
Australian Communications and Media Authority (ACMA), whose role is to
regulate broadcasting, the internet, radiocommunications and
telecommunications in Australia.
Paragraph 273.9(2)(c) covers conduct that is necessary or of assistance in
the administration of justice (whether within or outside Australia). This
defence will be targeted at persons involved in, or persons who through
their work are required to assist another person involved in, court
proceedings brought to enforce criminal offences related to child
pornography or child abuse material. The types of people covered by the
defence will include judicial officers, or other officers, of a court
hearing the proceedings, legal representatives of a party to the
proceedings, and witnesses in the proceedings.
Paragraph 273.9(2)(d) will cover conduct that is necessary or of assistance
in conducting scientific, medical or educational research. This defence
will ensure that legitimate research dealing with child pornography can be
undertaken. However, this will only cover a limited range of conduct and
subsection 273.9(3) will provide that paragraph 273.9(2)(d) only applies if
the person's conduct was reasonable. This is different to the comparable
defences applying to existing carriage service offences in paragraphs
474.21(2)(d) and 474.24(2)(d), which require that the defence will only
apply where the research has been approved by the Minister in writing for
the purposes of this section. Such a requirement in the overseas context
would be unworkable. Accordingly, this requirement has been replaced with
a reasonableness test.
Subsection 273.9(4) will provide a defence for law enforcement officers,
intelligence or security officers and an officer or employee of the
government of a foreign country performing similar duties to an
intelligence or security officer, acting in the course of their duties
where their conduct is reasonable in the circumstances for the purpose of
performing that duty. 'Law enforcement officer' and 'intelligence or
security officer' are defined in Part 10.6 of the Criminal Code.
An example of how this defence might apply is as follows. P1, a law
enforcement officer who is working in a foreign country sends an email
containing child pornography to colleagues as part of an investigation.
This would ordinarily be covered by the defence. However, if P1
intentionally included amongst the email recipients a friend who had no
involvement in the investigation, the officer may not be covered by this
defence.
Subsection 273.9(5) will provide a defence for persons who engage in the
offending conduct in good faith for purposes related to the operation of
the Online Content Co-Regulatory Scheme (the Scheme) under Schedules 5 and
7 of the Broadcasting Services Act 1992. The Scheme, which is administered
by ACMA, aims to protect the community from offensive and illegal material
published on the Internet, including by investigating complaints about
online content and undertaking research into current issues and relevant
trends.
Paragraph 273.9(5)(a) will provide a defence for persons who engage in the
offending conduct for the sole purpose of assisting ACMA to detect
prohibited content or potential prohibited content in the performance of
its functions under the Scheme. An example of how this defence might apply
is as follows: P1, an Australian working in a foreign country for an
Australian body corporate, makes a complaint about an Australian website to
ACMA under the Scheme by emailing an attachment containing child
pornography material that they accessed on the website. P1, whose only
reason for transmitting such material is to assist the ACMA in its
functions under the Scheme, would not be liable for that conduct.
Subsection 273.9(5)(b) provides a defence for persons involved in the
manufacturing, developing or updating of content filtering technology
(including software) in accordance with a 'recognised alternative access-
prevention arrangement' or 'designated alternative access-prevention
arrangement'. These terms are defined in clauses 40 and 60 of Schedule 5
of the Broadcasting Services Act, respectively. Under the Scheme, these
access prevention arrangements involve the development of filtering
software and filtered carriage services designed to block prohibited
content. These are to be updated in accordance with notices issued by ACMA
providing details of internet sites that contain prohibited content. In
updating their filters, software manufacturers and internet service
providers that offer filtered carriage services may need to access sites
that contain prohibited content. The defence could apply to a company that
produced filtering software overseas principally for the Australian market.
Subdivision D - Video link evidence
This subdivision will allow the use of video evidence in relation to child
pornography or child abuse material offences committed outside Australia.
Subdivision D replicates Subdivision D of new Division 272 (Child sex
offences outside Australia), which is based on existing sections 50EC-G of
the Crimes Act, as described above.
Section 273.10 - When court may take evidence by video link
This section will allow a witness to give evidence by video link on
application of a party to the proceedings if:
. the witness is willing to give evidence from outside Australia
. he or she is not a defendant in the proceedings
. the facilities for taking such evidence (in accordance with the
requirements of proposed section 272.11) are or can reasonably be made
available
. the court is satisfied that the witness's attendance in Australia
will:
o cause unreasonable expense or inconvenience, or
o cause the witness psychological harm or unreasonable distress,
or
o cause the witness to become so intimidated or distressed that
his/her reliability as a witness would be significantly reduced,
and
. the court is satisfied that it is consistent with the interests of
justice for the evidence to be taken by video link.
As the provisions are dealing with offences committed outside Australia and
are international in nature, it is likely that witnesses will be living
outside of Australia. To maximise the ability of the courts to obtain
relevant witness evidence, it is important that the evidence can be
obtained by video link. This will ensure that witnesses are not precluded
from giving their evidence due to cost or other matters that arise due to
the international nature of the crime.
Section 273.11 - Technical requirements for video link
This section relates to the requirement in proposed paragraph 272.10(c) and
will provide that video link evidence is not to be given unless the place
where the court is sitting and the place where the evidence is to be given
are each equipped with video facilities to enable the persons whom the
court considers appropriate to see and hear each other via the video-link.
Section 273.12 - Application of laws about witnesses
This section will provide that a witness who gives video link evidence is
taken to be giving it at the place where the court is sitting.
The proposed note in this section will make it clear that the effect of
proposed section 273.12 is to apply local Australian law to the giving of
evidence by video link, including laws relating to the rules of evidence,
procedure, contempt of court and perjury.
Section 273.13 - Administration of oaths and affirmations
This section will provide for the oath or affirmation to be administered
either by the Australian court over the video link or by an authorised
person at the place where the witness is to give evidence on behalf of the
court. If the oath or affirmation is administered at the place where the
witness is to give evidence, it is done on behalf of the Australian court
and at the court's direction.
Section 273.14 - Expenses
This section will authorise the court to make orders for the payment of
expenses incurred in connection with the giving of evidence by video link.
This would allow the court to obtain evidence it thinks will be useful for
the case, when the other country will not or cannot fund the exercise.
Section 273.15 - Other laws about foreign evidence not affected
This section will expressly preserve the operation of other laws relating
to the taking of evidence from overseas witnesses for the purposes of
proceedings concerning offences against this proposed Division.
Items 5 to 11
These items will insert definitions relevant to the operation of new
Divisions 272 and 273 into the Dictionary of the Criminal Code. These
definitions will also apply to other Divisions of the Criminal Code where
relevant, for example Divisions 471 (Postal offences) and 474
(Telecommunications offences).
Item 5
This item will insert a signpost definition into the Dictionary of the
Criminal Code, stating that the definition of cause a person to engage in
sexual intercourse will have the meaning given by section 272.2. Under
section 272.2, 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.
Item 6
Item 6 will insert a new definition of engage in sexual activity. Without
limiting when a person engages in sexual activity, a person will be 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.
This makes clear that engaging in sexual activity includes merely being
present while others engage in sexual activity, even where the person is
not physically involved in the conduct. For example, this would cover a
person watching two other people engaging in sexual intercourse or other
sexual activity, even if the person themselves was not partaking in the
sexual intercourse or other sexual activity.
It also makes clear that being present while another person engages in
sexual activity is not limited to being physically present. The definition
extends to being present through the use of any means of communication
(such as the Internet or telephone), that allows the person to see or hear
the other person. For example, this would cover where Person 1 is watching
Person 2 via a webcam, while Person 2 is masturbating in front of the
camera, where Persons 1 and 2 are not in the same physical location.
Item 7
This item will insert a signpost definition relating to the definition of
mental impairment in existing subsection 7.3(8) of the Criminal Code.
Item 8
This item will insert a signpost definition relating to the definition of
position of trust or authority in new section 272.3(1) of the Criminal
Code.
Item 9
This item will move the existing definition of procure from subsection
474.28(11) of the Criminal Code (concerning the carriage service procuring
offence) and insert the definition into the Dictionary. This is necessary
because several new procuring offences that are not related to a carriage
service will be introduced into different parts of the Criminal Code by
this Bill and will also rely on this definition. The existing definition
in subsection 474.28(11) will be removed by item 55.
Item 10
This item will move the existing definition of sexual activity in the
Criminal Code from subsection 474.28(11) (concerning existing carriage
service grooming and procuring offences) to the Dictionary, with some
modification. This is necessary because several new offences directed at
sexual activity that are not related to a carriage service will be
introduced into different parts of the Criminal Code by this Bill and will
also rely on this definition. The existing definition in subsection
474.28(11) will be removed by item 55.
The existing definition in subsection 474.28(11) defines sexual activity as
sexual intercourse (as defined in section 50AC of the Crimes Act), an act
of indecency (as defined in section 50AB of the Crimes Act), or any other
activity of a sexual or indecent nature that involves the human body, or
bodily actions or functions (and need not involve physical contact between
people).
Sections 50AC and 50AB of the Crimes Act define these terms for the
purposes of the existing child sex tourism offence regime in Part IIIA of
the Crimes Act. The new definition to be inserted into the Criminal Code
by this item will no longer include references to these Crimes Act
definitions. This is necessary because item 1 of this Bill repeals Part
IIIA of the Crimes Act (for the purposes of moving the regime to the
Criminal Code) and sections 50AC and 50AB of the Crimes Act will no longer
exist.
Paragraph (a) of the definition will define sexual activity as including
sexual intercourse. This is necessary because several existing and new
offences directed at sexual activity are intended to capture both sexual
intercourse and any other act of a sexual nature (for example, existing
section 474.26, which makes it an offence to use a carriage service to
procure a child for sexual activity). Sexual intercourse will be defined
in new section 272.4 of the Criminal Code.
Paragraph (b) of the definition will define sexual activity as meaning 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).
As the definition incorporates indecent activity, it will no longer be
necessary for the definition of sexual activity to refer to an act of
indecency. The existing child sex tourism offences in Part IIIA of the
Criminal Code included offences criminalising sexual conduct with a child
(sections 50BC and 50BD). These offences are directed at acts of
indecency. However, new section 272.9 of the Criminal Code (which will
replace sections 50BC and 50BD) will criminalise any sexual activity with a
child other than sexual intercourse and will no longer specifically refer
to acts of indecency. It is intended that paragraph (b) of the new
definition of sexual activity is sufficient to cover any sexual act other
than sexual intercourse, and reference to an act of indecency is not
necessary.
The definition will make clear that sexual activity need not involve
physical contact between people. This complements the definition to be
inserted into the Dictionary by item 6 of engage in sexual activity, which
states that a person may engage in sexual activity if the person is in the
presence of another person while the other person engages in sexual
activity. For example, a person may ask a child to watch while the person
masturbates in front of the child. In another example, a person may ask a
child to watch over the Internet while the person masturbates in front of a
webcam. In both of these examples, the child will be engaging in sexual
activity even though there is not any physical contact between the child
and the person.
Item 11
This item will insert a signpost definition relating to the definition of
sexual intercourse, in new section 272.4 of the Criminal Code.
Part 2 - Amendments relating to child sex offences involving postal or
similar services, or carriage services
Postal or similar service offences
Division 471 of the Criminal Code sets out existing Commonwealth postal
service offences. The offence regime applies to the use of a postal or
similar service, defined in section 470.1 to include the traditional
post, courier services and any other like service.
As with the existing carriage service offence regime (in Divisions 473
and 474 of the Criminal Code), there is a general offence of using a
postal or similar service to menace, harass or cause offence
(section 471.12 of the Criminal Code). This offence is intended to
capture a broad range of activity and carries a maximum penalty of two
years imprisonment.
Unlike the carriage service offence regime, however, there are no
specific offences for the use of the post for child pornography or
child abuse material, or other child sex-related purposes. While such
behaviour may be captured by the existing general offence described
above, the offender would only be subject to a maximum penalty of
two years imprisonment. This is considered anomalous as a person
engaging in such conduct using a carriage service would, depending on
the activity, be subject to a maximum penalty of between 10 and
15 years imprisonment.
Despite the extensive use of the Internet by child sex offenders, there
is evidence that dealings in customary forms of child pornography are
still common. Accordingly, Part 2 of Schedule 1 introduces a
comprehensive suite of offences criminalising using a postal or similar
service for child sex-related activity. The offences will mirror
relevant carriage service offences (as amended by Schedule 1) and
ensure that such activity is criminalised consistently, regardless of
the means through which it is committed.
The offences will also mirror the carriage service offence regime in
that they will include a requirement that the offender be a person who
is at least 18 years of age. While the child sex tourism offences are
not limited in this way, it is appropriate to limit offences directed
at predatory conduct via a carriage or postal service to persons who
are at least 18 years of age. Sexual activity between children would
not be captured by the offences, and would remain an issue for State
and Territory governments.
Carriage service offences
Division 474 of the Criminal Code sets out a range of
telecommunications offences relating to the use of a carriage service
for criminal activity. Part 2 of Schedule 1 will make a range of
amendments to Division 474, including:
. extending the coverage of child pornography and child abuse material
offences
. improving the operation of existing grooming and procuring offences
. introducing new offences for using a carriage service for indecent
communications with a child or for sexual activity with a child, and
. insert a new presumption relating to the requirement in Division 474
carriage service offences to prove that a carriage service was used to
engage in the relevant criminal conduct.
Extending the coverage of child pornography and child abuse material
offences
Child pornography and child abuse material are not just pictures - they
involve the abuse of children and the amplification and broadcast of
the original offence. Offences should recognise the exploitation
inherent in such images. Offending fuels market demand and thereby
increases the incidence of actual child abuse. Further, the Internet
is creating ever greater demands for new material of ever greater
levels of depravity and corruption.
Maximum penalties should reflect a worst case scenario, and indicate to
the courts the Government's position on the level of seriousness
involved. Accordingly, the amendments will increase the maximum
penalties for child pornography and child abuse material offences, from
10 years imprisonment to 15 years imprisonment.
The amendments will also introduce a new aggravated offence directed at
involvement in a child pornography network. The Internet has allowed
the development of organised, technologically sophisticated rings of
child sexual abusers. This, in turn, has caused increased levels of
harm to children resulting from the demand created by such large-scale
networks. The new offence would apply where an existing child
pornography or abuse material offence is committed, and require proof
of two additional factors: that the conduct giving rise to the offence
occurs on three or more separate occasions, and involves two or more
persons. The new offence will be punishable by a maximum penalty of
25 years imprisonment.
Improving the operation of existing grooming and procuring offences
Part 2 of Schedule 1 will make some modifications to existing grooming
and procuring offences. Firstly, the existing grooming offence applies
where a person uses a carriage service to make it easier to procure the
child for sexual activity and the communication contains material that
is indecent. It is proposed to remove the latter requirement that the
communication be indecent - the grooming process is just as likely to
involve platonic and 'innocent exchanges'.
Secondly, it is proposed to change the burden of proof for the
applicable belief about age defence from an evidential to a legal
burden on the defendant, bringing the burden into line with the
comparable child sex tourism defence and reflecting the fact that a
belief about a child's age is a matter peculiarly within the
defendant's knowledge.
Introducing new offences for using a carriage service for indecent
communications with a child or for sexual activity with a child
Part 2 of Schedule 1 will introduce two new carriage service offences
covering certain specific activity relating to children. In State and
Territory child sex offence regimes, offences criminalising exposing
children to pornographic or indecent material are common. The Bill
will insert a new offence of using a carriage service for indecent
communications with a child. The offence would capture situations
where an adults sends a child sexually explicit material (eg adult
pornography) without any intent to commit a further offence (eg a
grooming or procuring offence). The offence would carry a maximum
penalty of seven years imprisonment.
Secondly, the Part 2 of Schedule 1 will insert a new offence of using a
carriage service for sexual activity with a child. Changes in
technology mean that offenders can commit sexual offences against
children without meeting up in 'real life'. For example, an offender
might masturbate in front of a webcam while a child watches online.
The new offence would carry a maximum penalty of 15 years imprisonment.
Aggravated offences would also apply where the sexual activity is
committed with a child in relation to which the offender is in a
position of trust or authority, or where the victim has a mental
impairment, carrying a maximum penalty of 25 years imprisonment.
New presumption relating to element 'use of a carriage service offence'
Part 2 of Schedule 1 will insert a new presumption into Division 475 of
the Criminal Code applying to the element (where relevant in all of the
existing and new telecommunications offences to be inserted by the Bill
in Division 474) that a carriage service was used to engage in the
relevant criminal conduct. This element provides the relevant
connection to the Commonwealth's constitutional power. The presumption
will provide that, in relation to the element of the offences that a
carriage service was used, if the prosecution proves beyond reasonable
doubt that the person engaged in the relevant criminal conduct, then it
is presumed, unless the person proves to the contrary, that the person
used a carriage service to engage in that conduct.
Insertion of this presumption is necessary to address current problems
being experienced by law
enforcement agencies in proving beyond reasonable doubt that a carriage
service was used to engage in the relevant criminal conduct. Often the
evidence that a carriage service was used to engage in this conduct is
entirely circumstantial, consisting of evidence, for example, that the
defendant's computer had child pornography material on the hard drive,
that the computer was connected to the Internet and that records show
the computer accessed particular websites with names suggesting an
association with child pornography material. A presumption in this
instance is appropriate, given it is not an element that goes to the
substance of the offence, or to the person's criminal culpability, but
is a jurisdictional element. That is, an element marking a boundary
between matters that fall within the legislative power of the
Commonwealth and those that do not.
Criminal Code Act 1995
Item 12
This item will insert a new section 470.4 (Meaning of expressions used in
Subdivisions B and C of Division 471) at the end of existing Division 470
of the Criminal Code. Division 470 sets out preliminary matters relating
to postal services. Division 471 sets out offences relating to postal
services.
Section 470.4 - Meaning of expressions used in Subdivisions B and C of
Division 471
Section 470.4 will insert a number of definitions for the purposes of new
Subdivisions B and C of Division 471 (to be inserted by item 14).
Subsection 470.4(1) will provide that, subject to subsections (2) and (3),
the definitions in Part 10.6 of the Criminal Code, which relate to
telecommunications offences, will also apply to Subdivisions B and C of
Division 471.
For the purposes of the proposed new offences in Subdivision B, subsection
470.4(2) will define possession or control as including having possession
of a computer or data storage device, having possession of a document in
which material is recorded or having control of material held in a computer
that is in the possession of another person (whether inside or outside
Australia).
Subsection 470.4(3) will define producing, supplying or obtaining material
as engaging in such conduct in relation to material held or contained in a
computer or data storage device, or a document in which the material is
recorded.
Subsection 470.4(4) will provide that section 473.4 of the Criminal Code,
which sets out the matters that may be taken into account in deciding
whether material is offensive, will apply in relation to subdivisions B and
C of this Division. The offensiveness test contained in subsection 473.4
is relevant to determining whether material can be classed as either child
pornography or child abuse material as defined in Part 10.6 of the Criminal
Code (which concerns telecommunications offences) and will now also apply
for the purposes of the new postal offences in subsections B and C of this
Division.
Item 13
Division 471 currently includes a range of offences directed at postal
services. The amendments will divide Division 471 into separate
Subdivisions A (General postal offences), B (Offences relating to use of
postal or similar service for child pornography material or child abuse
material), C (Offences relating to use of a postal or similar service
involving sexual activity with person under 16) and D (Miscellaneous).
This item will insert a new heading 'Subdivision A - General postal
offences' before existing section 471.1 of the Criminal Code.
Item 14
This item will insert new Subdivision B (Offences relating to use of a
postal or similar service for child pornography material or child abuse
material) and new Subdivision C (Offences relating to use of postal or
similar service involving sexual activity with person under 16) into
existing Division 471 of the Criminal Code.
Subdivision B - Offences relating to use of postal or similar service for
child pornography material or child abuse material
Sections 471.16 to 471.23
Subdivision B will introduce a range of offences directed at the use of
postal or similar services for child pornography and child abuse material
that will mirror relevant carriage service offences (as amended by this
Bill). This will ensure that child sex-related activity is criminalised
consistently, regardless of the means through which it is committed (eg
through the Internet or the post).
Subdivision B also makes available a number of defences to offences in this
Subdivision. It will be a defence to the offences contained in this
Subdivision that the conduct in question is of public benefit. This
includes situations where the conduct is necessary for enforcing, or
monitoring compliance with, a Commonwealth, State or Territory law for the
administration of justice, or for conducting scientific, medical or
educational research approved by the Minister. A defence will also apply
for law enforcement, intelligence or security officers acting in the course
of duty. This is consistent with existing Commonwealth offences for using
a carriage service for child pornography and child abuse material (sections
474.21 and 474.24 of the Criminal Code).
Section 471.16 - Using a postal or similar service for child pornography
material
Section 471.16 will insert a new offence criminalising the use of a postal
or similar service for child pornography material. The purpose of this
offence is to ensure that the use of a postal or similar service for
conduct relating to child pornography is criminalised in a way that is
consistent with comparable offences directed at the Internet.
Subsection 471.16(1) will make it an offence for a person to cause an
article that is, or contains, child pornography material, to be carried by
a postal or similar service. This offence will be punishable by a maximum
penalty of 15 years imprisonment.
An example of this type of offence is as follows. Person A sends through
the post a package in which there is a CD containing child pornography
material.
Under subsection 471.16(2), it will be an offence to request another person
to cause an article that is, or contains, child pornography material, to be
carried by a postal or similar service. The offence will carry a penalty
of 15 years imprisonment.
An example of this type of offence is as follows. Person A rings Person B,
who is a supplier of child pornography material. Person A requests that
Person B post certain material containing child pornography to Person A.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence. To establish these offences, the
prosecution would need to prove beyond reasonable doubt that:
. the person intended to cause an article to be carried by a postal or
similar service or intended to request another person to cause an
article to be carried by a postal or similar service, and
. the person was reckless as to the circumstance that the article was,
or contained, child pornography material.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Accordingly, for a person to be guilty of this offence they must intend to
cause, or request another person to cause, an article in relation to which
they are aware of a substantial risk is, or contains, child pornography
material, to be carried by post. For example, if Person A places an
envelope in a post box on behalf of Person B, and is unaware that the
envelope contains child pornography material, Person A would not commit an
offence against section 471.16(1) as they would lack the requisite intent.
However, Person B may be guilty of an offence against section 471.16(2), if
they requested that Person A post the envelope, knowing that it contained
child pornography.
The application of these fault requirements will also ensure that employees
of postal or similar services who unknowingly carry or deal with such
material in the course of their normal duties will not be guilty of an
offence as they will not have the requisite fault element.
Section 471.17 - Possessing, controlling, producing, supplying or obtaining
child pornography material for use through a postal or similar service
Section 471.17 will insert a new offence criminalising dealing in child
pornography material using a postal or similar service. This provision
will mirror existing carriage service offences, ensuring that conduct
relating to child pornography is criminalised consistently, regardless of
the means through which it is committed (eg through the internet or post).
Subsection 471.17(1) will apply where a person possesses, controls,
produces, supplies or obtains child pornography material with the intention
that the material will be used by that person, or another person, in
committing an offence against section 471.16 (using a postal or similar
service for child pornography material.) This offence will carry a maximum
penalty of 15 years imprisonment.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence. To establish this offence, the
prosecution would need to prove beyond reasonable doubt that:
. the person intended to have possession or control of material or the
person intended to produce, supply, or obtain material
. the person was reckless as to the circumstance that the material was
child pornography material, and
. the person did so with the intention that that person, or another
person, would use that material to commit an offence against section
471.16 (using a postal or similar service for child pornography
material).
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Accordingly, for a person to be guilty of this offence they must intend to
possess, control, produce, supply or obtain material, aware of a
substantial risk that the material is child pornography material, with the
intention to use a postal or similar service for the material.
The application of these fault requirements will ensure that postal workers
acting in good faith and in the course of their normal duties who
unknowingly possessed or controlled child pornography material, for
example, by carrying the material in a postal van on a normal delivery run,
would not be committing an offence against this section.
Under subsection 471.17(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. This is appropriate because the fundamental core of the
offence is that the person had the intention to use the material to commit
an offence against section 471.16. It does not matter whether or not the
offence against section 471.16 actually takes place.
Subsection 471.17(3) will provide that it will not be an offence to attempt
to commit an offence against section 471.17. Part 2.4 of the Criminal Code
extends criminal responsibility for all Commonwealth offences and operates
to automatically provide for ancillary offences such as attempting to
commit an offence or inciting the commission of an offence. Subsection
471.17(3) modifies the automatic application of Part 2.4 in relation to the
ancillary offence of attempt. This is appropriate because the offence
itself is already directed at conduct that is preparatory in nature.
Section 471.18 - Defences in respect of child pornography material
Section 471.18 will set out the circumstances in which a person is not
criminally responsible for an offence against the postal service offences
involving child pornography material (sections 471.16 and 471.17).
The defences provided by section 471.18 will apply where the conduct said
to constitute the offence is of public benefit. Conduct that is considered
to be of public benefit includes situations where the conduct is necessary
for enforcing, or monitoring compliance with, a Commonwealth, State or
Territory law, for the administration of justice, or for conducting
scientific, medical or educational research approved by the Minister. A
defence would also apply for law enforcement, intelligence or security
officers acting in the course of duty. This is consistent with existing
Commonwealth offences for using a carriage service for child pornography
and child abuse material (sections 474.21 and 474.24 of the Criminal Code).
Some of the defences in proposed section 471.18 would be covered by the
general defence of lawful authority in section 10.5 of the Criminal Code.
However, that defence is not specific to the circumstances covered by these
defences and does not sufficiently cover all the types of people that would
be legitimately entitled to a defence for the proposed child pornography
material offences, particularly as the lawful authority defence only
applies to conduct justified or excused by or under Commonwealth law.
Subsection 471.18(1) will provide a defence against section 471.16 (using a
postal or similar service for child pornography material) or section 471.17
(possessing, controlling, producing, supplying or obtaining child
pornography material through a postal or similar service) to a defendant
who can point to evidence to suggest that their conduct is of public
benefit and does not go beyond what is of public benefit. The test is an
objective one, meaning the motives or intentions of the person who engaged
in the conduct are not relevant and would not be considered in determining
whether the conduct is in fact of public benefit.
A defendant bears an evidential burden in relation to subsection 471.18(1).
Section 13.3 of the Criminal Code provides that in the case of a standard
'evidential burden' defence, the defendant bears the burden of pointing to
evidence that suggests a reasonable possibility that the defence is made
out. If this is done, the prosecution must refute the defence beyond
reasonable doubt (section 13.1).
The use of the defence in subsection 471.18(1) is consistent with
Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the principle that it is legitimate to cast a matter as a defence
where a matter is peculiarly within the defendant's knowledge and is not
available to the prosecution.
Subsection 471.18(2) will provide an exhaustive list of conduct that is of
public benefit. If a person engages in conduct that meets one of the four
criteria in subsection 471.18(2) it will be considered to be 'of public
benefit' for the purposes of proposed subsection 471.18(1) so long as the
conduct does not go beyond what is of public benefit. These are questions
of fact, to be determined by the trier of fact.
Paragraph 471.18(2)(a) covers conduct that is necessary or of assistance in
enforcing a law of the Commonwealth, a State or a Territory. This defence
will have very limited application and will be targeted at persons who may
be required to engage in the offending conduct as part of their duties in
connection with law enforcement, but who are not covered by the defence for
law enforcement officers in subsection 471.18(4)(a).For example, this
defence would apply where an Australian criminologist assists law
enforcement agencies in the identification of victims of child pornography
by requesting that certain hard copies photos consisting of child
pornography material be sent to her through the post.
Paragraph 471.18(2)(b) covers conduct that is necessary or of assistance in
monitoring compliance with, or investigating a contravention of, a law of
the Commonwealth, a State or a Territory. This defence will be targeted at
officers of government agencies involved in monitoring and investigative
activity related to regulatory schemes that they administer.
Paragraph 471.18(2)(c) covers conduct that is necessary or of assistance in
the administration of justice. This defence will be targeted at persons
involved in, or persons who through their work are required to assist
another person involved in, court proceedings brought to enforce criminal
offences related to child pornography or child abuse material. The types
of people covered by the defence will include judicial officers, or other
officers, of a court hearing the proceedings, legal representatives of a
party to the proceedings, and witnesses in the proceedings.
Paragraph 471.18(2)(d) will cover conduct that is necessary or of
assistance in conducting scientific, medical or educational research that
has been approved by the Minister in writing for the purposes of this
section. This defence will ensure that legitimate research dealing with
child pornography can be undertaken.
Subsection 471.18(3) will provide a defence for law enforcement officers,
intelligence or security officers acting in the course of their duties
where their conduct is reasonable in the circumstances for the purpose of
performing that duty. 'Law enforcement officer' and 'intelligence or
security officer' are defined in Part 10.6 of the Criminal Code.
An example of this defence is as follows. A law enforcement officer sends
a package containing child pornography to colleagues as part of an
investigation. This would ordinarily be covered by the defence. However,
if P1 intentionally sent the same material to a friend who had no
involvement in the investigation, the officer may not be covered by this
defence.
A defendant will bear an evidential burden in relation to
subsection 471.18(3). Section 13.3 of the Criminal Code provides that in
the case of a standard 'evidential burden' defence, the defendant bears the
burden of pointing to evidence that suggests a reasonable possibility that
the defence is made out. If this is done, the prosecution must refute the
defence beyond reasonable doubt (section 13.1). A defence has been used
because a defendant would be better placed to point to evidence that he or
she engaged in the conduct in the course of his or her duties and that the
conduct was reasonable in the circumstances for the purpose of performing
that duty than the prosecution would be placed to disprove this.
The use of the evidential burden defence in subsection 471.18(3) is
consistent with Commonwealth criminal law practice, as described in the
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. The Guide refers to the settled principle that it is legitimate to
cast a matter as an evidential burden defence where a matter is peculiarly
within the defendant's knowledge and is not available to the prosecution.
Section 471.19 - Using a postal or similar service for child abuse material
Section 471.19 will insert a new offence criminalising the use of a postal
or similar service for child abuse material. The purpose of this offence is
to ensure that the use of a postal or similar service for conduct relating
to child abuse material is criminalised in a way that is consistent with
comparable offences directed at the Internet.
Subsection 471.16(1) will make it an offence for a person to cause an
article that is, or contains, child abuse material, to be carried by a
postal or similar service. This offence will be punishable by a maximum
penalty of 15 years imprisonment.
An example of this type of offence is as follows. Person A sends through
the post a package in which there is a CD containing child abuse material.
Under subsection 471.16(2), it will be an offence to request another person
to cause an article that is, or contains, child abuse material, to be
carried by a postal or similar service. The offence will carry a penalty
of 15 years imprisonment.
An example of this type of offence is as follows. Person A rings Person B,
who is a supplier of child abuse material. Person A requests that Person B
post certain material containing child abuse to Person A.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence. To establish these offences, the
prosecution will need to prove beyond reasonable doubt that:
. the person intended to cause the article to be carried by a postal or
similar service or intended to request another person to cause the
article to be carried by a postal or similar service, and
. the person was reckless as to the circumstance that the article was,
or contained, child abuse material.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Accordingly, for a person to be guilty of this offence they must intend to
cause, or request another person to cause, an article in relation to which
they are aware of a substantial risk is, or contains, child abuse material.
For example, if Person A places an envelope in a post box on behalf of
Person B, and is unaware that the envelope contains child abuse material,
Person A would not commit an offence against section 471.19(1) as they
would lack the requisite intent. However, Person B may be guilty of an
offence against section 471.19(2), if they requested that Person A post the
envelope, knowing that it contained child abuse material.
The application of these fault requirements will also ensure that employees
of postal or similar services who unknowingly carry such material in the
course of their normal duties will not be guilty of an offence as they will
not possess the requisite fault element.
Section 471.20 - Possessing, controlling, producing, supplying or obtaining
child abuse material for use through a postal or similar service
Section 471.20 will insert a new offence criminalising dealing in child
abuse material using a postal or similar service. This provision will
mirror existing carriage service offences, ensuring that conduct relating
to child abuse is criminalised consistently, regardless of the means
through which it is committed (eg through the Internet or post).
Subsection 471.20(1) will create a new offence to apply where a person
possesses, controls, produces, supplies or obtains child abuse material
with the intention that the material will be used by that person, or
another person, in committing an offence against section 471.19 (using a
postal or similar service for child abuse material.) This offence will
carry a maximum penalty of 15 years imprisonment.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence. To establish this offence, the
prosecution would need to prove beyond reasonable doubt that:
. the person intended to have possession or control of material, or
. the person intended to produce, supply, or obtain material, and
. the person was reckless as to the circumstance that the material was
child abuse material, and
. the person did so with the intention that that person, or another
person, would use that material to commit an offence against section
471.19 (using a postal or similar service for child abuse material).
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
Accordingly, for a person to be guilty of this offence they must intend to
possess, control, produce, supply or obtain material, aware of a
substantial risk the material is child abuse material, with the intention
to use a postal or similar service for that material.
The application of these fault requirements will ensure that postal workers
acting in good faith and in the course of their normal duties who
unknowingly possessed or controlled child pornography material, for
example, by carrying the material in a postal van on a normal delivery run,
would not be committing an offence against this section as they will not
possess the requisite fault elements.
Under subsection 471.20(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. This is appropriate because the fundamental basis of the
offence is that the person had the intention to use the material to commit
an offence against section 471.19. It does not matter whether or not the
offence against section 471.19 actually takes place.
Subsection 471.20(3) provides that it will not be an offence to attempt to
commit an offence against section 471.20. Part 2.4 of the Criminal Code
extends criminal responsibility for all Commonwealth offences and provides
for ancillary offences such as attempting to commit an offence or inciting
the commission of an offence. Subsection 471.20(3) will exclude the
application of Part 2.4 in relation to the ancillary offence of attempt.
This is appropriate because the offence itself is already directed at
conduct that is preparatory in nature.
Section 471.21 - Defences in respect of child abuse material
Section 471.20 will set out the circumstances in which a person is not
criminally responsible for an offence against the postal service offences
involving child abuse material (471.19 and 471.20).
The defences provided by section 471.21 will apply where the conduct said
to constitute the offence is of public benefit. Conduct that is considered
to be of public benefit includes situations where the conduct is necessary
for enforcing, or monitoring compliance with a Commonwealth, State or
Territory law for the administration of justice, or for conducting
scientific, medical or educational research approved by the Minister. A
defence would also apply for law enforcement, intelligence or security
officers acting in the course of duty. This is consistent with existing
Commonwealth offences for using a carriage service for child pornography
and child abuse material carriage (sections 474.21 and 474.24 of the
Criminal Code).
Some of the defences in proposed section 471.21 would be covered by the
general defence of lawful authority in section 10.5 of the Criminal Code.
However, that defence is not specific to the circumstances covered by these
defences and does not sufficiently cover all the types of people that would
be legitimately entitled to a defence for the proposed child pornography
material offences, particularly as the lawful authority defence only
applies to conduct justified or excused by or under Commonwealth law.
Subsection 471.21(11) will provide a defence against section 471.19 (using
a postal or similar service for child abuse material) or section 471.20
(possessing, controlling, producing, supplying or obtaining child abuse
material through a postal or similar service) to a defendant who can point
to evidence to suggest that their conduct is of public benefit and does not
go beyond what is of public benefit. The test is an objective one, meaning
the motives or intentions of the person who engaged in the conduct are not
relevant and would not be considered in determining whether the conduct is
in fact of public benefit.
A defendant will bear an evidential burden in relation to
subsection 471.21(1). Section 13.3 of the Criminal Code provides that in
the case of a standard 'evidential burden' defence, the defendant bears the
burden of pointing to evidence that suggests a reasonable possibility that
the defence is made out. If this is done, the prosecution must refute the
defence beyond reasonable doubt (section 13.1). A defence has been used
because a defendant would be better placed to point to evidence that he or
she engaged in the conduct for public benefit than the prosecution would be
to prove otherwise.
The use of the evidential burden defence in subsection 471.21(1) is
consistent with Commonwealth criminal law practice, as described in the
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. The Guide refers to the principle that it is legitimate to cast a
matter as a defence where a matter is peculiarly within the defendant's
knowledge and is not available to the prosecution.
Subsection 471.21(2) will provide an exhaustive list of conduct that is of
public benefit. If a person engages in conduct that meets one of the four
criteria in subsection 471.21(2) it will be considered to be 'of public
benefit' for the purposes of proposed subsection 471.21(1) so long as the
conduct does not go beyond what is of the public benefit. These are a
question of fact, to be determined by the trier of fact.
Paragraph 471.21(2)(a) will cover conduct that is necessary or of
assistance in enforcing a law of the Commonwealth, a State or a Territory.
This defence will have very limited application and will be targeted at
persons who may be required to engage in the offending conduct as part of
their duties in connection with law enforcement, but who are not covered by
the defence for law enforcement officers in subsection 471.21(3)(a).
For example, this defence would apply where an Australian criminologist
assists law enforcement agencies in the identification of victims of child
pornography by requesting that certain hard copies photos consisting of
child pornography material be sent to her through the post.
Paragraph 471.21(2)(b) applies to conduct that is necessary or of
assistance in monitoring compliance with, or investigating a contravention
of, a law of the Commonwealth, a State or a Territory. This defence will
cover officers of government agencies involved in monitoring and
investigative activity related to regulatory schemes that they administer.
Paragraph 471.21(2)(c) applies to conduct that is necessary or of
assistance in the administration of justice. This defence will cover
persons involved in, or persons who through their work are required to
assist another person involved in, court proceedings brought to enforce
criminal offences related to child pornography or child abuse material.
The types of people covered by the defence will include judicial officers,
or other officers, of a court hearing the proceedings, legal
representatives of a party to the proceedings, and witnesses in the
proceedings.
Paragraph 471.21(2)(d) will cover conduct that is necessary or of
assistance in conducting scientific, medical or educational research that
has been approved by the Minister in writing for the purposes of this
section. This defence will ensure that legitimate research dealing with
child abuse material can be undertaken. Subsection 471.21(3) will provide
a defence for law enforcement officers, intelligence or security officers
acting in the course of their duties where their conduct is reasonable in
the circumstances for the purpose of performing that duty. 'Law
enforcement officer' and 'intelligence or security officer' are defined in
Part 10.6 of the Criminal Code.
An example of this defence is as follows. A law enforcement officer sends
a package containing child pornography to colleagues as part of an
investigation. This would ordinarily be covered by the defence. However,
if P1 intentionally sent the same material to a friend who had no
involvement in the investigation, the officer may not be covered by this
defence.
A defendant will bear an evidential burden in relation to
subsection 471.21(3). Section 13.3 of the Criminal Code provides that in
the case of a standard 'evidential burden' defence, the defendant bears the
burden of pointing to evidence that suggests a reasonable possibility that
the defence is made out. If this is done, the prosecution must refute the
defence beyond reasonable doubt (section 13.1). A defence has been used
because a defendant would be better placed to point to evidence that he or
she engaged in the conduct in the course of his or her duties and that the
conduct was reasonable in the circumstances for the purpose of performing
that duty than the prosecution would be to displace this.
The use of the defence in subsection 471.21(3) is consistent with
Commonwealth criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the principle that it is legitimate to cast a matter as a defence
where a matter is peculiarly within the defendant's knowledge and is not
available to the prosecution.
Section 471.22 - Aggravated offence - offence involving conduct on 3 or
more occasions and 2 or more people
Section 471.22 will create an aggravated offence criminalising the use of a
postal service for child pornography or child abuse material. The purpose
of this offence is to target child pornography networks and to recognise
the increased level of harm to child victims resulting from demand created
by such networks.
Subsection 471.22(1) will insert an aggravated offence that will apply if a
person commits an offence against sections 471.16, 471.17, 471.18, 471.19
and 471.20 (the underlying offences) in the circumstances where the
defendant has committed an underlying offence on three or more separate
occasions and the commission of these offences involved two or more
persons. These additional elements justify the higher maximum penalty of
25 years imprisonment by which this offence will be punishable.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraph 471.20A(2)(b). To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person committed offences against any of the underlying offences,
consisting of:
o section 471.16 (using a postal or similar service for child
pornography material
o section 471.17 (possessing etc child pornography material for use
through a postal or similar service)
o section 471.19 (using a postal or similar service for child abuse
material)
o section 471.19 (possessing etc child abuse material for use through
a postal or similar service)
. the person committed these offences on three or more separate
occasions, and
. the person was reckless as to the circumstance that the commission of
the offences involved two or more people.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
The requirement that the person must commit the offence on three or more
separate occasions (paragraph 471.22(1)(a)) has been inserted to ensure
that the aggravated offence will only apply where a person has engaged in a
sustained or repeated course of conduct sufficient to warrant the
application of a higher penalty.
Paragrah 471.22(1)(b) will provide that the commission of each offence must
involve two or more people. As noted above, the purpose of this provision
is to target criminal networks engaged in offences involving child
pornography and/or abuse material. The requirement that two or more
persons must be involved is consistent with existing Commonwealth, State
and Territory definitions of organised criminal activity. The provision
will also state that these persons must be involved in the commission of
the offence. This requirement is intended to exclude the victim from the
list of persons who may be considered to have involvement in an offence
against this section.
Subsection 471.22(2) will make clear that there is no fault element for
the physical element described in paragraph 471.22(1)(a) other than the
fault elements for the underlying offence. The underlying offences
themselves have specific physical and fault elements that must be
proved by the prosecution. The prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the
relevant underlying offence, including any fault elements applicable to
that offence.
The effect of this is that the prosecution will not have to prove any
fault element for the physical element in paragraph 471.22(1)(a) that
the offence was committed on three or more separate occasions. This is
appropriate because the circumstance that the offence occurred on three
or more occasions, similar to a jurisdictional element, is not an
element going to the substance of the offence. If the prosecution
proves beyond reasonable doubt that the offender intentionally engaged
in the relevant underlying offence three or more times, the offender's
knowledge as to the number of times this occurred is not relevant to
his or her culpability.
Subsection 471.22(3) will provide that, for the avoidance of doubt, a
person does not commit the underlying offence for the purposes of
paragraph 471.22(1) if the person has a defence to the underlying
offence. This subsection makes it clear that a defendant is able to
rely on any defences that apply to the underlying offences constituting
a charge under subsection 471.22(1).
Subsection 471.22(4) will provide that it is not necessary for the conduct
constituting the aggravated offence to be the same on each occasion. This
reflects the fact that offenders who are involved in criminal networks are
likely to engage in several types of prohibited conduct. For example, a
person may produce child pornography material for the purpose of sending
through the post, cause the child pornography to be carried through the
post to members of the network, and request members of the network to post
child abuse material to the person. This person could be convicted of an
aggravated offence notwithstanding the fact that they engaged in different
forms of offending conduct on each of the three occasions.
Subsection 471.22(5) will provide that a person who has been convicted or
acquitted of an aggravated offence may not be convicted of an offence
against subsection 471.16, 471.17, 471.18, 471.19 or 471.20) in relation to
the conduct that constituted the aggravated offence.
For example, a person who has been acquitted of an aggravated offence based
on three offences of using a postal or similar service for child
pornography material cannot later be convicted of an offence under section
471.16 of using a postal or similar service in relation to the same
conduct.
However, paragraph 471.22(6) will state that subsection 471.22(5) will not
prevent the trier of fact from making an alternative verdict under section
471.20B. This section provides that a trier of fact may find a defendant
guilty of an underlying offence as an alternative where they are satisfied
beyond reasonable doubt that the defendant committed an underlying offence,
but are unable to find that the defendant committed an aggravated offence.
Subsection 471.22(7) provides that a person who has been convicted or
acquitted of an offence against section 471.16, 471.17, 471.18, 471.19 or
471.20 cannot be convicted of an aggravated offence under section 471.22 in
relation to the same conduct.
For example, a person who has been acquitted of an offence of using a
postal service for child pornography material pursuant to section 471.16
cannot be convicted of an aggravated offence based on the evidence of the
offence for which they have been acquitted, in addition to two further
counts of using a postal service for child pornography material.
Section 471.23 - Alternative verdict if aggravated offence not proven
Section 471.23 will allow the trier of fact to return an alternative
verdict if it is satisfied that the defendant is not guilty of an offence
against 471.22(1) (an aggravated offence) but is guilty of an offence
against section 471.16, 471.17, 471.18, 471.19 or 471.20 (an underlying
offence).
The purpose of this section is to ensure that offenders who have committed
offences against sections 471.16, 471.17, 471.18, 471.19 or 471.20 do not
escape conviction on these lesser charges where an aggravated offence
cannot be proven beyond reasonable doubt, but the lesser offence can.
If the trier of fact hearing a trial for an offence against section
471.22(1) is satisfied that all elements of the offence are proven beyond
reasonable doubt except the aggravating elements, it is appropriate that it
be able to find the defendant guilty of an underlying offence under section
471.16, 471.17, 471.18, 471.19 or 471.20.
Section 471.23 also makes clear that the defendant may only be found guilty
of an alternative offence if the defendant has been accorded procedural
fairness in relation to that finding of guilt.
Subdivision C - Offences relating to use of postal or similar service
involving sexual activity with person under 16
Subdivision C will introduce three new offences directed at the use of
postal or similar services for offences involving sexual activity with a
person under 16. The new offences will mirror existing and new carriage
service offences. This will ensure that child sex-related activity is
criminalised consistently, regardless of the means through which it is
committed (eg through the Internet or the post).
Subdivision C will also include a number of defences which will apply
where the defendant proves that, at the time the sexual activity was
engaged in, he or she believed that the child was not under 16 or did
not have a mental impairment, and the trier of fact considers that this
belief was reasonable in the circumstances.
Section 471.24 - Using a postal or similar service to procure persons under
16 years of age
Section 471.21 will create an offence of using a postal or similar
service to procure a person under 16 to engage in sexual activity. The
purpose of the offence is to give law enforcement authorities the means
to deal with preparatory conduct and enable a person to be arrested
before any physical harm occurs to the child.
The offence will apply where a person (the sender) engages in conduct
using a postal or similar service with the intention of procuring the
child (the recipient) to participate in the following:
. sexual activity with the sender
. sexual activity with another person who is at least 18 years of age (a
participant), or
. sexual activity with another person who is under 18 years of age in
the presence of the sender or a participant who is, or the sender
believes to be, at least 18 years of age.
The offence is modelled on the existing carriage service offence in
section 474.26 of the Criminal Code, which deals with the use of a
carriage service to procure a person under 16 for sexual activity.
Under subsection 471.24(1), it will be an offence where a person over
the age of 18 (the sender) causes an article to be carried by a postal
or similar service to procure a person who is, or who the sender
believes to be, aged 16 or under to engage in sexual activity with the
sender. The offence will carry a maximum penalty of 15 years
imprisonment.
An example of this type of offence is as follows. Person A sends
through the post a letter addressed to a person under 16 (the child)
stating that s/he wants to engage in sexual activity with the child.
The letter invites the child to the person's house on a particular
date, for the purpose of engaging in sexual activity with the person.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraph 471.24(1)(a). To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the sender intended to cause an article to be carried by a postal or
similar service to another person (the recipient)
. the sender did so with the intention of procuring the recipient to
engage in sexual activity with the sender
. the recipient was under 16, or the sender believed that the recipient
was under 16, and
. the sender was reckless as to whether he or she was at least 18.
Section 5.4 of the Criminal Code provides that a person is reckless
with respect to a circumstance if he or she is aware that the
circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take that
risk.
The offence in subsection 471.24(2) will operate in the same way as the
offence in 471.24(1) subject to one key difference: the defendant
engages in conduct with the intention of procuring the person under 16
to engage in sexual activity with another person who is at least 18
(rather than the defendant). This offence will be punishable by a
maximum penalty of 15 years imprisonment.
An example of this type of offence is as follows. Person A sends
through the post a letter addressed to a person under 16 (the child)
asking the child if s/he will engage in sexual activity with Person B.
The letter asks the child to meet Person B at a particular location on
a particular date, for the purpose of engaging in sexual activity with
Person B.
The offence in subsection 471.24(3) will operate in the same way as the
offence in 471.24(2) with the additional element that the sender
intends the person under 16 to engage in sexual activity with another
person under 16, in the presence of the sender, or another person who
is at least 18. This offence will carry a maximum penalty of 15 years
imprisonment.
An example of this type of offence is as follows. Person A sends
through the post a letter addressed to a person under 16 (the first
child) asking the child if s/he will engage in sexual activity with a
second child. The letter asks the child to come to Person A's house on
a particular date, for the purpose of engaging in sexual activity with
the second child while Person A watches.
Paragraph (b) in all three offences contains the fundamental component
of the offence - the prosecution must prove that the person actually
intended to procure the child to engage in sexual activity. It would
not be sufficient to show that the person's conduct was of a nature
that was merely suggestive of that intent.
The existing definition of procure in subsection 474.28(11) of the
Criminal Code will be moved to the Dictionary of the Criminal Code by
item 9 of this Schedule. Accordingly, the definition will also apply
to offences in this subdivision. This definition, which is inclusive
rather than exhaustive, provides that procuring a person in relation to
sexual activity includes to encourage, entice or recruit the person in
relation to that activity or to induce the person (whether by threats,
promises or otherwise) in relation to that activity.
The existing definition of sexual activity in subsection 474.28(1) of
the Criminal Code will be moved to the Dictionary of the Criminal Code
by item 10 of this Schedule, with some modification. Accordingly, the
definition will apply to offences in this Subdivision. This
definition, which is exhaustive, provides that sexual activity means
sexual intercourse, or any other activity of a sexual or indecent
nature that involves the human body, or bodily actions or functions
(whether or not that activity involves physical contact between
people).
The offences also rely on a new definition of engage in sexual activity
to be inserted into the Dictionary of the Criminal Code by item 6 of
this Schedule. Without limiting when a person engages in sexual
activity, a person will be 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. These definitions
are further described in relation to items 6 and 10 below.
Subsection 471.27(1) will provide that absolute liability will apply to
the physical element of the circumstance in paragraphs 471.24(1)(c),
(2)(c) and (3)(c) that the recipient was under 16. Absolute liability
is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault
element needs to be proved and the defence of mistake of fact is not
available. Accordingly, the prosecution will not be required to prove
that the person knew or was reckless as to the fact that the recipient
was under 16 years of age. Applying absolute liability to this element
of the offence is appropriate given the intended deterrent effect of
this offence and the availability of a specific 'belief about age'
defence available under subsection 471.29.
An offence will still be committed against this section where the
recipient or participant is someone whom the defendant believes to be
under or at least a certain age. This is necessary to cater for a
standard investigatory technique, where an officer assumes the identity
of a fictitious child, interacting with a potential predatory adult
over the internet, and arresting that adult before they have the
opportunity to sexually abuse a real child. Thus, a person who engages
in conduct to procure a child to engage in sexual activity outside
Australia is not able to escape liability for an offence even if their
conduct was not ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient or participant to be of a certain age is consistent with
the fault element of intention, which provides that someone has
intention with respect to a circumstance if he or she believes it
exists or will exist.
Subsection 471.27(2) will provide that in relation to subsections
471.24(2) and (3) (offences involving a third-party participant),
absolute liability will also apply to the physical element of
circumstance in paragraphs 471.24(2)(d) and (3)(e) that the participant
is at least 18 years of age.
Section 471.25 - Using a postal or similar service to "groom" persons
under 16 years of age
Section 471.25 will create an offence of using a postal or similar
service to groom a person under 16 to engage in sexual activity. The
purpose of the offence is to give law enforcement authorities the means
to deal with preparatory conduct and enable a person to be arrested
before any physical harm to the child occurs.
The offence will apply where a person (the sender) engages in conduct
using a postal or similar service with the intention of making it
easier to procure the child ('grooming' the child') to participate in
the following:
. sexual activity with the sender
. sexual activity with another person who is at least 18 years of age (a
participant), or
. sexual activity with another person who is under 18 years of age in
the presence of the sender or a participant who is, or the sender
believes to be, at least 18 years of age.
The offence is modelled on the existing carriage service offence in
section 474.27 of the Criminal Code, which deals with the use of a
carriage service to groom a person under 16 for sexual activity.
Under subsection 471.25(1), it will be an offence where a person over
the age of 18 (the sender) causes an article to be carried by a postal
or similar service to groom a person who is, or who the sender believes
to be, under 16 to engage in sexual activity with the sender. The
offence will carry a maximum penalty of 12 years imprisonment.
As example of this type of offence is as follows. Person A convinces a
person under 16 (the child) using letters sent via a postal or similar
service that they are in a romantic relationship so that Person A can
eventually engage in sexual activity with the child.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraph 471.25(1)(a). To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the sender intended to cause an article to be carried by a postal or
similar service to another person (the recipient)
. the sender did so with the intention of making it easier to procure
the recipient to engage in sexual activity with the sender
. the recipient was under 16, or the sender believed that the recipient
was under 16, and
. the sender was reckless as to whether he or she was at least 18.
Section 5.4 of the Criminal Code provides that a person is reckless
with respect to a circumstance if he or she is aware that the
circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take that
risk.
The offence in subsection 471.25(2) will operate in the same way as the
offence in 471.25(1) subject to one key difference: the defendant
engages in conduct with the intention of grooming the person under 16
to engage in sexual activity with another person who is at least 18
(rather than the defendant). This offence will be punishable by a
maximum penalty of 12 years imprisonment.
An example of this type of offence is as follows. Person A sends
through the post letters addressed to a person under 16 (the child)
convincing the child that Person B is in love with the child, in order
to make it easier for Person B to engage in sexual activity with the
child.
The offence in subsection 471.25(3) will operate in the same way as the
offence in 471.25(2) with the additional element that the sender
intends that the sexual activity take place with another person who is
under 16 in the presence of the sender, or another person who is at
least 18. This offence will carry a maximum penalty of 15 years
imprisonment.
An example of this type of offence is as follows. Person A sends
through the post letters addressed to a person under 16 (the first
child) suggesting to the child that another person under 16 (the second
child) has romantic feelings for the first child, with the intention of
getting the two children to engage in sexual activity in Person A's
presence.
Paragraph (b) in all three offences contains the fundamental component
of the offence - the prosecution must prove that the person actually
intended to groom the child to engage in sexual activity. It would not
be sufficient to show that the person's conduct was of a nature that
was merely suggestive of that intent.
The existing definition of sexual activity in subsection 474.28(1) of
the Criminal Code will be moved to the Dictionary of the Criminal Code
by Item 10 of this Schedule, with some modification. Accordingly, the
definition will apply to offences in this subdivision. This
definition, which is exhaustive, provides that sexual activity means
sexual intercourse, or any other activity of a sexual or indecent
nature that involves the human body, or bodily actions or functions
(whether or not that activity involves physical contact between
people).
The offences also rely on a new definition of engage in sexual activity
to be inserted into the Dictionary of the Criminal Code by item 6 of
this Schedule. Without limiting when a person engages in sexual
activity, a person will be 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. These definitions
are further described in relation to items 6 and 10 below.
Subsection 471.27(1) will provide that absolute liability will apply to
the physical element of the circumstance in paragraphs 471.25(1)(c),
(2)(c) and (3)(c) that the recipient was under 16 years of age.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact is not available. Accordingly, the prosecution will not be
required to prove that the person knew or was reckless as to the fact
that the recipient was under 16 years of age. Applying absolute
liability to this element of the offence is appropriate given the
intended deterrent effect of this offence and the availability of a
specific 'belief about age' defence available under subsection 471.29.
An offence will still be committed against this section where the
recipient or participant is someone whom the defendant believes to be
under or at least a certain age. This is necessary to cater for a
standard investigatory technique, where an officer assumes the identity
of a fictitious child, interacting with a potential predatory adult
over the internet, and arresting that adult before they have the
opportunity to sexually abuse a real child. Thus, a person who engages
in conduct to procure a child to engage in sexual activity outside
Australia is not able to escape liability for an offence even if their
conduct was not ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient or participant to be of a certain age is consistent with
the fault element of intention, which provides that someone has
intention with respect to a circumstance if he or she believes it
exists or will exist.
Subsection 471.27(2) will provide that in relation to subsections
471.25(2) and (3) (offences involving a third-party participant),
absolute liability will also apply to the physical element of
circumstance in paragraphs 471.25(2)(d) and (3)(e) that the participant
is at least 18.
Section 471.26 - Using a postal or similar service to send indecent
material to persons under 16 years of age
Section 471.26 will criminalise the use of a postal service to send
indecent material to a person under 16 years of age. The purpose of
this offence is to address situations where the offender sends indecent
material to a child with no further intent to groom or procure the
child for sexual activity. Section 471.26 will also mirror the
comparable carriage-service offence to be introduced by this Bill (new
section 474.27A) to ensure that child sex-related activity is
criminalised consistently, regardless of the means through which it is
committed (eg through the Internet or the post).
Under section 471.26, it will be an offence for a person of at least 18
to cause an article to be carried by a postal or similar service where
the article is, or contains, indecent material to a recipient who is,
or who the sender believes to be, under 16.
This offence will be punishable by a maximum penalty of 7 years
imprisonment. This penalty is consistent with maximum penalties for State
and Territory offences for exposing a child to indecent material.
An example of this type of offence is as follows. Person A (a person
who is at least 18) sends through the post to Person B (a person under
16) photos of Person A engaged in a sexual act.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out at
paragraphs 471.26(1)(a), (b), part of (c) and (d). To establish this
offence, the prosecution would need to prove beyond reasonable doubt
that:
. the person intended to cause an article to be carried by a postal or
similar service to another person (the recipient)
. the person was reckless as to whether the article was, or contained
material that was indecent
. the recipient was under 16 years of age, or was someone who the person
believed was under 16, and
. the person was reckless as to the circumstance that he or she was at
least 18 years of age.
Section 5.4 of the Criminal Code provides that a person is reckless
with respect to a circumstance if he or she is aware that the
circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take that
risk.
Under section 471.27(1), absolute liability will apply to
paragraph 471.26(1)(c) (that the recipient was under 16). The effect of
applying absolute liability to an element of an offence means that no
fault element needs to be proved and the defence of mistake of fact is
not available.
Accordingly, while the prosecution will be required to demonstrate that
the child was under 16 years of age at the time the communication was
transmitted, the prosecution will not be required to prove that the
defendant knew (or was negligent or reckless to the fact) that the
recipient was under 16 years of age. Applying absolute liability to
this element of the offence is appropriate given the intended deterrent
effect of this offence and the availability of a specific 'belief about
age' defence available under section 471.29.
Under paragraph 471.26(1)(c), an offence will still be committed where
the recipient is someone whom the defendant believes to be under the
age of 16 years. This is necessary to cater for a standard
investigatory technique, where an officer assumes the identity of a
fictitious child, interacting with a potential predatory adult over the
internet, and arresting that adult before they have the opportunity to
sexually abuse a real child. Thus, a person who engages in conduct to
procure a child to engage in sexual activity outside Australia is not
able to escape liability for an offence even if their conduct was not
ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient to be under 16 is consistent with the fault element of
intention, which provides that someone has intention with respect to a
circumstance if he or she believes it exists or will exist.
Subsection 471.26(2) will provide that the determination of whether
material is indecent is a matter for the trier of fact, not a legal
question. The court and/or jury are charged with determining this
factual question based on the evidence presented during a prosecution.
Subsection 471.26(3) will provide that 'indecent' means indecent
according to the standards of ordinary people. It would not be
possible to describe in legislation all of the types of material that
should be considered indecent, and in what contexts. Further, courts
are well practiced at applying the standards of ordinary people in the
criminal law context. For example, adult pornographic material, which
may otherwise be considered entirely acceptable, is likely to be
considered indecent material for a person to be sending to a recipient
under 16.
Section 471.27 - Age-related provisions relating to offences against this
Subdivision
Section 471.27 will set out a number of age-related provisions
clarifying how the age of the sender, recipient and participant will
affect the criminality of conduct under this subdivision.
Subsection 471.27(1) will provide that absolute liability will apply to
the physical element of circumstance where relevant in offences in
Subdivision C that the recipient was under 16 at the time the sender
caused the article in question to be carried by a postal or similar
service. The effect of applying absolute liability to this element of
the offences is set out in full in the description of each offence
above.
Subsection 471.27(2) will provide that absolute liability will also
apply to the physical element of circumstance that the participant is
at least 18 years of age in relation to subsections 471.24(2) and (3)
and 471.25(2) and (3) (procuring and grooming offences involving a
third-party participant). The effect of applying absolute liability to
this element of the offences is set out in full in the description of
each offence above.
Subsection 471.27(3) will provide that 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.
Similarly, subsection 471.27(4) will provide that, for the purposes of
sections 471.24 (using a postal service to procure persons under 16)
and 471.25 (using a postal service to groom persons under 16), evidence
that the participant was represented to the sender as being at least
18, or 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.
These provisions make it clear that the sender may be guilty of an
offence where he or she believed that the recipient or participant was
of an age that would make their conduct in relation to that person a
criminal offence, regardless of the actual age of that person. This
aspect is included to enable law enforcement agencies to conduct
investigations by assuming the identity of a 'child' or other person in
order to interact with potential predatory adults in order to arrest an
offender before he or she has an opportunity to commit an offence
against an actual child.
Subsection 471.27(5) is based upon current section 50FA of the Crimes Act.
It will provide that, in determining for the purposes of the Division how
old a person is or was at a particular time, a jury or court may have
regard to, as evidence, the appearance of the person, medical or other
scientific opinion and documents being or purporting to be official or
medical records of a foreign country or copies of such records. This is to
allow the court to consider a variety of sources of evidence when, for
example, definitive evidence such as a genuine birth certificate of the
victim is not available.
In order to avoid any doubt, subsection 471.27(6) provides that
subsection 471.27(5) does not:
. make any other kind of evidence inadmissible, or
. relieve the prosecution authorities from the duty of making every
effort to obtain the best evidence of age of the person.
Subsection 471.27(7) provides that where subsection 471.27(5) is relied
upon, the court must warn the jury that it must be satisfied beyond
reasonable doubt that the person in question:
. is, or was at a particular time, under 16, or
. is, or was at a particular time, of a particular age.
Section 471.28 - Other provisions relating to offences against this
Subdivision
Subsection 471.28(1) provides that a person may still be found guilty
of an offence against section 471.24 (using a postal or similar service
to procure persons under 16) or section 471.25 (using a postal or
similar service to groom persons under 16) even if it is impossible for
the sexual activity to take place. This is consistent with the
fundamental component of the offence - criminalising the person's
intention to engage in sexual activity with a child. It will not
matter if it is impossible for the sexual activity to take place.
Subsection 471.28(3) will provide that it will not be an offence to
attempt to commit an offence against section 471.24 (using a postal or
similar service to procure persons under 16) or section 471.25 (using a
postal or similar service to groom persons under 16). Part 2.4 of the
Criminal Code extends criminal responsibility for all Commonwealth
offences and provides for ancillary offences such as attempting to
commit an offence or inciting the commission of an offence.
Subsection 471.28(3) excludes the application of Part 2.4 in relation
to the ancillary offence of attempt. This is appropriate because the
offences themselves will be directed at conduct that is preparatory in
nature.
Section 471.29 - Defences to offences against this Subdivision
Section 471.29 will make available defences based on a belief about age.
That is, that at the time the defendant caused the article to be carried,
the defendant believed that the person was, for example, 16 or over. The
purpose of the defence is to ameliorate the effect of applying absolute
liability to the circumstance of the offences that, for example, the child
was under 16.
Subsection 471.29(1) will provide a defence to offences against Subdivision
C where, at the time of the sexual activity, the defendant believed that
the person who was under 16 was actually 16 or over.
Subsection 471.29(2) will provide a defence to offences committed against
subsections 471.24(2) or (3) or 471.25(2) or (3) (offences where a third
party participant is involved). The defence applies if, at the time the
defendant caused the article to be carried, the defendant believed that the
person who was 18 or over was actually under 18.
A defendant will bear a legal burden in establishing these defences and,
accordingly, must establish the elements of the defences on the balance of
probabilities (see section 13.4 and 13.5 of the Criminal Code). A legal
burden is appropriate because the defence relates to a matter that is
peculiarly within the defendant's knowledge and not available to the
prosecution.
Subsection 471.29(3) will provide that in determining whether the defendant
had the required belief, the trier of fact may take into account whether
the alleged belief was reasonable in the circumstances. This subsection is
included to prevent a defendant avoiding criminal liability simply by
asserting a belief that the victim was 16 or older at the time of the
offence where there is no reasonable basis for that belief.
Subdivision D - Miscellaneous
Section 471.30 - Geographical jurisdiction
This section will apply section 15.1 (extended geographical jurisdiction -
category A) to an offence against Subdivision B or C of this Division.
This is consistent with the jurisdiction applying to the existing carriage
service offence regime.
Section 471.31 - Definition of carry by post does not apply
For the avoidance of doubt, this section will exclude the operation of the
definition of carry by post in existing section 470.1 of the Criminal Code.
Items 15 to 19
Subdivision C of Division 474 currently includes a range of offences
related to the use of telecommunications. The proposed amendments will
divide Subdivision C into several separate Subdivisions to better reflect
the conduct involved in those offences. These items are necessary in order
to re-structure Subdivision C in this way.
Items 15 and 16
These items relate to an existing provision concerning when a person is
taken not to use a carriage service in section 474.13 of Subdivision C of
Division 474. Item 15 will insert a signpost provision relating to this
definition into the definitions section in Division 474 (Section 473.1).
Item 16 will move the existing definition in section 473.13 out of
Subdivision C and into Division 473 (which relates to preliminary matters)
as new section 473.5. This is necessary in order to limit the provisions
in the re-structured Subdivision C of Division 474 to offence and offence-
related provisions.
Item 17
This item will repeal the existing heading of Subdivision C of Division 474
of the Criminal Code and replace it with a new heading 'Subdivision C -
General offences relating to use of telecommunications'. This is necessary
due to the re-structure of Subdivision C into Subdivisions C, D, E, F and
G. Subdivision C will now only deal with general offences relating to the
use of telecommunications.
Item 18
This item will repeal existing section 474.13 (when a person is taken not
to use a carriage service), as item 16 will insert the content of this
section into new section 473.5 of Division 473.
Item 19
This item will insert a new heading Subdivision D - Offences relating to
use of a carriage service for child pornography material or child abuse
material after existing section 474.18 of the Criminal Code. Existing
offences in sections 474.19 to 474.14 will be in new Subdivision D.
Subdivision D will also include a new offence to be inserted by item 28
(section 474.24A - Aggravated offence - offence involving conduct on 3 or
more occasions and 2 or more people).
Items 20 to 27
These items make several changes to four existing offences in Division 474:
. section 474.19 (using a carriage service for child pornography material)
. section 474.20 (possessing, controlling, producing, supplying or
obtaining child pornography material for use through a carriage service)
. section 474.22 (using a carriage service for child abuse material), and
. section 474.23 (possessing, controlling, producing, supplying or
obtaining child abuse material for use through a carriage service).
Extending the conduct criminalised
Sections 474.19 and 474.22 criminalise using a carriage service to access,
cause to be transmitted, transmit, make available, publish or otherwise
distribute child pornography or child abuse material. The first change
will involve extending the conduct criminalised by existing offences. The
amendments will extend the operation of the offences to using a carriage
service to advertise or promote such material. This will ensure that
persons advertising or promoting child pornography or abuse material will
be captured, even if they do not engage in transmitting or making available
actual child pornography or abuse material. The amendments will also
extend the operation of the offences to cover soliciting such material.
This will ensure that persons asking for or requesting child pornography or
abuse material would be captured, even if no actual material is sent to
them.
Separating elements and applying absolute liability to the jurisdictional
element
The second change to sections 474.19 and 474.22 will restructure existing
paragraph (1)(a) of both offences to more clearly separate the elements of
the offence. Sections 474.19 and 474.22 will criminalise accessing,
causing material to be transmitted, transmitting, making available,
publishing, distributing, advertising, promoting or soliciting child
pornography or abuse material using a carriage service. The amendments
will separate the conduct of accessing, causing material to be transmitted,
transmitting, making available, publishing, distributing, advertising,
promoting or soliciting from the means by which this conduct occurs (using
a carriage service). This will allow for the application of absolute
liability to the element of the offence that this conduct occurs using a
carriage service.
These changes will complement the new presumption which will be inserted by
item 59. Item 59 will insert a new presumption applying to the element
(where relevant in all existing and new telecommunications offences to be
inserted by the Bill in Division 474 of the Criminal Code) that a carriage
service was used to engage in the relevant criminal conduct (new section
475.1B). This element provides the relevant connection to the
Commonwealth's constitutional power. The presumption will provide that, in
relation to the element of the offences that a carriage service was used,
if the prosecution proves beyond reasonable doubt that the person engaged
in the relevant criminal conduct, then it is presumed, unless the person
proves to the contrary, that the person used a carriage service to engage
in that conduct. The new presumption is described in detail in relation to
item 59 below.
Increasing penalties
Sections 474.19, 474.20, 474.22 and 474.23 are currently punishable by
a maximum penalty of 10 years imprisonment. However, it is evident
that the Internet is creating ever greater demands for new material of
ever greater levels of depravity and corruption. The Internet is being
used to access and distribute child pornography on a massive global
scale and offending has become pervasive and widespread. As a result,
offending behaviour is becoming increasingly destructive. Children, in
addition to being victims of the initial abuse required for the
production of the material, are exploited on a massive scale through
the repeated distribution of the image, or images, throughout
international networks.
Maximum penalties set by the Government are intended to reflect a worst
case scenario. They are also intended to indicate to the courts the
Government's position on the level of seriousness which it believes the
particular conduct involves. Accordingly, the amendments will increase
the maximum penalties for using a carriage service for child
pornography or child abuse material, or possessing such material for
use through a carriage service, from 10 years imprisonment to 15 years
imprisonment.
Items 20 to 22
These items will amend the existing offence in section 474.19 (using a
carriage service for child pornography material) of the Criminal Code.
Item 20 will amend the offence in section 474.19 by repealing paragraph
474.19(1)(a) and substituting new paragraphs (a) and (aa). New
paragraph (a) will extend the operation of the offence to advertising,
promoting or soliciting child pornography material. New paragraph (aa)
will set out the element that the conduct occurs through the use of a
carriage service as a separate element of the offence.
Item 21 will increase the maximum penalty for the offence in section
474.19 from 10 years imprisonment to 15 years imprisonment. This is
appropriate in light of the scale of contemporary offending and will
ensure that the maximum penalty reflects the worse case scenario.
Item 22 will insert a new subsection 474.19(2A) applying absolute
liability to the element of the offence that the conduct occurs through
the use of a carriage service in new paragraph (aa).
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew or was reckless as to the fact that he or she engaged in
the relevant conduct using a carriage service.
Absolute liability is appropriate and required for the element of the
offences that the person engaged in the conduct using a carriage
service because this element is a jurisdictional element of the
offence. A jurisdictional element of the offence is an element that
does not relate to the substance of the offence, but marks a
jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue
of whether the person intended to use a carriage service is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Item 23
This item will amend the offence in section 474.20 (possessing,
controlling, producing, supplying or obtaining child pornography
material for use through a carriage service) by increasing the maximum
penalty from 10 to 15 years imprisonment. This is appropriate in light
of the scale of contemporary offending and will ensure that the maximum
penalty reflects the worse case scenario.
Items 24 to 26
These items will amend the existing offence in section 474.22 (using a
carriage service for child abuse material) of the Criminal Code.
Item 24 will amend the offence in section 474.22 by repealing paragraph
474.22(1)(a) and substituting new paragraphs (a) and (aa). New
paragraph (a) will extend the operation of the offence to advertising,
promoting or soliciting child abuse material. New paragraph (aa) will
set out the element that the conduct occurs through the use of a
carriage service as a separate element of the offence.
Item 25 will increase the maximum penalty for the offence in section
474.22 from 10 years imprisonment to 15 years imprisonment. This is
appropriate in light of the scale of contemporary offending and will
ensure that the maximum penalty reflects the worst case scenario.
Item 26 will insert a new subsection 474.22(2A) applying absolute
liability to the element of the offence that the conduct occurs through
the use of a carriage service in new paragraph (aa).
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew, or was reckless as to whether, he or she engaged in the
relevant conduct using a carriage service.
Absolute liability is appropriate and required for the element of the
offences that the person engaged in the conduct using a carriage
service because this element is a jurisdictional element of the
offence. A jurisdictional element of the offence is an element that
does not relate to the substance of the offence, but marks a
jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue
of whether the person intended to use a carriage service is not
relevant to their culpability. This is consistent with Commonwealth
criminal law practice, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Item 27
This item will amend the offence in section 474.23 (possessing,
controlling, producing, supplying or obtaining child pornography
material for use through a carriage service) by increasing the maximum
penalty from 10 to 15 years imprisonment. This is appropriate in light
of the scale of contemporary offending and will ensure that the maximum
penalty reflects the worse case scenario.
Item 28
This item will insert a new aggravated offence criminalising using a
carriage service for child pornography material or child abuse material
(section 474.24A). The Internet has allowed the development of
organised, technologically sophisticated rings of child sexual abusers.
This, in turn, has caused increased levels of harm to children
resulting from the demand created by such large-scale networks. The
new offence will apply where existing child pornography or abuse
material offences are committed a number of times, as part of a child
pornography network. That is, the offence will require proof that the
conduct giving rise to the offence occurs on three or more separate
occasions, and involves two or more persons. It will carry a maximum
penalty of 25 years imprisonment.
This item will also insert a new alternative verdict provision (section
474.24B) applying to the new aggravated offence in section 474.24A.
Subdivision C of Division 474 currently includes a range of offences
related to the use of telecommunications. The proposed amendments will
divide Subdivision C into several separate Subdivisions to better reflect
the conduct involved in those offences. This item will also insert a new
heading to provide that existing section 474.25 (Obligations of Internet
service providers and Internet content hosts) will now be contained in
Subdivision E - Offence relating to obligations of Internet service
providers and Internet content hosts.
Section 474.24A - Aggravated offence - offence involving conduct on 3 or
more occasions and 2 or more people
Section 474.24A will create an aggravated offence criminalising Australians
dealing in child pornography or child abuse material overseas. The purpose
of this offence, which is directed at offenders who are involved in child
pornography networks, is designed to reflect the increased levels of harm
to child victims resulting from the demand created by such large-scale
networks.
Subsection 474.24A(1) will insert an aggravated offence that will apply if
a person commits an offence against sections 474.19, 474.20, 474.22 or
474.23 (the underlying offences) in the circumstances where the defendant
had committed an underlying offence on three or more separate occasions and
the commission of these offences involved two or more persons. These
additional elements justify the higher maximum penalty of 25 years
imprisonment by which this offence will be punishable.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out at paragraph 474.24A(1)(b). To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. the person committed an offence against one or more of the following
offences:
o section 474.19 (using a carriage service for child pornography
material)
o section 474.20 (possessing, controlling, producing, supplying or
obtaining child pornography material for use through a carriage
service)
o section 474.22 (using a carriage service for child abuse material)
o section 474.23 (possessing, controlling, producing, supplying or
obtaining child abuse material for use through a carriage service)
. the person committed these offences on three or more separate occasions,
and
. the person was reckless as to the circumstance that the commission of the
offences involved two or more people.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware that the circumstance
exists or will exist and, having regard to the circumstances known to him
or her, it is unjustifiable to take that risk.
The requirement in paragraph 474.24A(1)(a) that the person must commit the
offence on three or more separate occasions will ensure that the aggravated
offence will only apply where a person has engaged in a sustained or
repeated course of conduct sufficient to warrant the application of a
higher penalty.
Paragraph 474.24A(1)(b) will provide that the commission of each offence
must involve two or more people. As noted above, the purpose of this
provision is to target criminal networks engaged in offences involving
child pornography and/or abuse material. The requirement that two or more
persons must be involved is consistent with existing Commonwealth, State
and Territory definitions of organised criminal activity. The provision
will also state that these persons must be involved in the commission of
the offence. This requirement is intended to exclude the victim from the
list of persons who may be considered to have involvement in an offence
against this section.
Subsection 474.24A(2) will provide that there is no fault element for
the physical element described in paragraph 474.24A(1)(a) other than
the fault elements for the underlying offence. The underlying offences
themselves have specific physical and fault elements that must be
proved by the prosecution. The prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the
relevant underlying offence, including any fault elements applicable to
that offence. Subsection 474.24A(2) makes clear that for the purposes
of the element of the offence in paragraph 474.24A(1)(a), the
prosecution does not need to prove any fault elements in addition to
those fault elements already applying to the underlying offences.
A further effect of subsection 474.24A(2) is that the prosecution will
not have to prove any fault element for the physical element in
paragraph 471.20A(1)(a) that the offence was committed on three or more
separate occasions. This is appropriate because the circumstance that
the offence occurred on three or more occasions, similar to a
jurisdictional element, is not an element going to the substance of the
offence. If the prosecution proves beyond reasonable doubt that the
offender intentionally engaged in the relevant underlying offence three
or more times, the offender's knowledge as to the number of times this
occurred is not relevant to his or her culpability.
Subsection 474.24A(3) will provide that, for the avoidance of doubt, a
person does not commit the underlying offence for the purposes of
paragraph 474.24A(1)(a) if the person has a defence to the underlying
offence. This subsection makes it clear that a defendant is able to
rely any defences that apply to the underlying offences constituting a
charge under subsection 474.24A(1).
Section 474.24A(4) will provide that it is not necessary for the conduct
constituting the aggravated offence to be the same on each occasion. This
reflects the fact that offenders who are involved in criminal networks are
likely to engage in several types of prohibited conduct. For example, a
person may produce child pornography, distribute it to other members of a
child pornography network, and access child abuse material made available
by other members of the network. This person could be convicted of an
aggravated offence notwithstanding the fact that they engaged in different
forms of offending conduct on each of the three occasions.
Subsection 474.24A(5) will provide that a person who has been convicted or
acquitted of an aggravated offence may not be convicted of an offence
against sections 474.19, 474.20, 474.22 or 474.23 in relation to the
conduct that constituted the aggravated offence.
For example, a person who has been acquitted of an aggravated offence based
on three offences of accessing child pornography material cannot later be
convicted of an offence under section 474.19 of possessing of child
pornography material in relation to the same conduct.
However, subsection 474.24A(6) states that subsection (5) does not prevent
the trier of fact from making an alternative verdict under section 474.24B.
Section 474.24B (further described below) will provide that a trier of
fact may find a defendant guilty of an underlying offence as an alternative
where they are satisfied beyond reasonable doubt that the defendant
committed an underlying offence, but are unable to find that the defendant
committed an aggravated offence.
Subsection 474.24A(7) will provide that a person who has been convicted or
acquitted of an offence against section 474.19, 474.20, 474.22 or 474.23
cannot be convicted of an aggravated offence under section 474.24A in
relation to the same conduct.
For example, a person who has been acquitted of an offence of accessing
child pornography material pursuant to section 474.19 cannot be convicted
of an aggravated offence based on the evidence of the offence for which
they have been acquitted, in addition to two further counts of possession.
Section 474.24B - Alternative verdict if aggravated offence not proven
Section 474.24B will allow the trier of fact to return an alternative
verdict if it is satisfied that the defendant is not guilty of an offence
against subsection 474.24A(1) (an aggravated offence) but is guilty of an
offence against section 474.19, 474.20, 474.22 or 474.23 (an underlying
offence).
The purpose of this section is to ensure that offenders who have committed
offences against sections 474.19, 474.20, 474.22 or 474.23 do not escape
conviction on these lesser charges where an aggravated offence cannot be
proven beyond reasonable doubt, but the lesser charge can.
If a trier of fact hearing a prosecution for an offence against section
474.24A is satisfied that all elements of the offence are proven beyond
reasonable doubt except the aggravating elements, it is appropriate that it
be able to find the defendant guilty of an underlying offence under section
474.19, 474.20, 474.22 or 474.23.
Section 474.24B will also make clear that the defendant may only be found
guilty of an alternative offence if the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Item 29
Subdivision C of Division 474 currently includes a range of offences
related to the use of telecommunications. The proposed amendments will
divide Subdivision C into several separate Subdivisions to better reflect
the conduct involved in those offences. This item will insert a new
heading to provide that provisions relating to two new offences to be
inserted by this item (section 474.25A and 474.25B) in addition to existing
provisions (existing sections 474.26-29) will now be in Subdivision F -
Offences relating to use of carriage service involving sexual activity with
person under 16.
This item will also insert two new offences relating to the use of a
carriage service involving sexual activity with person under 16. Section
474.25A will make it an offence to use a carriage service for sexual
activity with a person under 16 years of age. Section 474.25B will set out
an aggravated offence, where a person commits an offence against section
474.25B, in the circumstances where the child has a mental impairment
and/or 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.
Section 474.25A - Using a carriage service for sexual activity with person
under 16 years of age
Section 474.25A will create an offence targeting use of a carriage service
for sexual activity with a child under the age of 16 years. The purpose of
this offence is to ensure that engaging in sexual activity with a child
online is criminalised in a comparable way to equivalent activity engaged
in in 'real life'.
The offences are only intended to capture sexual activity that occurs in
'real time.' Activity that does not occur in 'real time' is more
appropriately captured by other Commonwealth or State or Territory
offences. An example of this distinction is as follows. An offender who
masturbates in front of a web cam while a child watches online is
committing a 'real time' offence and may be prosecuted under this section.
However, the conduct of an offender who films himself or herself
masturbating and emails the film to a child would be more appropriately
captured by other offences (for example, the new section 474.27A which
makes it an offence to use a carriage service to send indecent
communications to a child, which is discussed below).
Under subsection 474.25A(1), it will be an offence for a person of at least
18 years of age to engage in sexual activity with a child under 16 years of
age using a carriage service. This offence will be punishable by a maximum
penalty of 15 years imprisonment. This penalty is consistent with the
penalty proposed for the like offence of engaging in sexual activity with a
child overseas in the child sex tourism offence regime (new section 272.9)
to be inserted in the Criminal Code by item 4.
An example of the type of conduct that would be captured by this offence is
where a person masturbates in front of a web cam while a child watches
online.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out at
paragraphs 474.25A(1)(a) and (c). To establish this offence, the
prosecution would need to prove beyond reasonable doubt that:
. the person intentionally engaged in sexual activity with another
person (the child) using a carriage service
. the child was under 16 years of age, and
. the person was reckless as to whether he or she was at least 18 years
of age.
Section 5.4 of the Criminal Code provides that a person is reckless
with respect to a circumstance if he or she is aware that the
circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take that
risk.
Subsection 474.28(1) will apply absolute liability to
paragraph 474.25A(1)(b). Absolute liability is set out in section 6.2
of the Criminal Code. The effect of applying absolute liability to an
element of an offence means that no fault element needs to be proved
and the defence of mistake of fact is not available. Accordingly,
while the prosecution will be required to demonstrate that the child
was under 16 years of age at the time the sexual activity with the
first person occurred, it will not be required to prove that the first
person knew or was negligent or reckless to that fact. Applying
absolute liability to this element of the offence is appropriate given
the intended deterrent effect of this offence and the availability of a
specific 'belief about age' defence available under
subsection 474.29(1).
Under subsection 474.25A(2), it will be an offence for a person to
engage in conduct in relation to a child under the age of 16 years that
causes the child to engage in sexual activity with another person of at
least 18 years of age using a carriage service. This penalty is
consistent with the penalty proposed for the like offence of engaging
in sexual activity with a child overseas in the child sex tourism
offence regime (new section 272.9) to be inserted in the Criminal Code
by item 4.
Examples of the type of conduct that would be captured by this offence
are where:
. a person causes a child to masturbate in front of a web cam and a
third party watches online, or
. a person causes a child to have sexual intercourse with another person
(either an adult or child) in front of a web cam and the offender or a
third party watches online.
Section 5.6 of the Criminal Code will apply an automatic fault element
to the physical element of the offence set out at
paragraph 474.25A(2)(a). Subsection 474.25A(3) will specify that the
fault element attaching to the physical element set out in
paragraph 474.25A(2)(b) is intention. To establish this offence, the
prosecution would need to prove beyond reasonable doubt that:
. the defendant intentionally engaged in conduct in relation to another
person (the child)
. the defendant intended that their conduct cause the child to engage in
sexual activity with another person (the participant) using a carriage
service
. the child was under 16 years of age when the sexual activity was
engaged in, and
. the participant was at least 18 years of age when the sexual activity
was engaged in.
Item 59 will insert a new presumption applying to the element (where
relevant in all existing and new telecommunications offences to be inserted
by the Bill in Division 474 of the Criminal Code) that a carriage service
was used to engage in the relevant criminal conduct (new section 475.1B).
This element provides the relevant connection to the Commonwealth's
constitutional power. The presumption will provide that, in relation to
the element of the offences that a carriage service was used, if the
prosecution proves beyond reasonable doubt that the person engaged in the
relevant criminal conduct, then it is presumed, unless the person proves to
the contrary, that the person used a carriage service to engage in that
conduct. The operation of the new presumption is described in detail in
relation to item 59 below.
Accordingly, new section 475.1B will apply to both of the offences in
subsections 474.25A(1) and (2). As a result, if the prosecution can prove
beyond reasonable doubt that the person engaged in sexual activity with a
child, or caused a child to engage in sexual activity with another person,
it will be presumed, unless the defendant proves to the contrary, that the
defendant used a carriage service to engage in that conduct.
Subsections 474.28(1) and (2) will apply absolute liability to
paragraphs 474.25A(2)(c)and (d). Absolute liability is set out in
section 6.2 of the Criminal Code. The effect of applying absolute
liability to an element of an offence means that no fault element needs
to be proved and the defence of mistake of fact is not available.
Accordingly, while the prosecution will be required to demonstrate that
the child was under 16 years of age when the sexual activity was
engaged in, it will not be required to prove that the defendant knew or
was negligent or reckless to that fact. Applying absolute liability to
this element of the offence is appropriate given the intended deterrent
effect of this offence and the availability of a specific 'belief about
age' defence available under subsection 474.29(1).
Similarly, the prosecution will be required to demonstrate that the
participant was at least 18 years of age when the sexual activity was
engaged in, but will not be required to prove that the defendant knew
or was negligent or reckless to that fact. Applying absolute liability
to this element of the offence is appropriate given the intended
deterrent effect of this offence and the availability of a specific
defence available under subsection 474.29(2) concerning the defendant's
belief about the participant's age.
The general defences under Part 2.3 of the Criminal Code will be
available to a person accused of an offence under subsection 474.25A(1)
or (2). In addition, two specific defences of belief about the age of
the child (under subsection 474.29(1), further described below) and the
defendant not intending to derive gratification (under
subsection 425.25A(4)) are available to a defendant charged with an
offence under subsection 474.25A(1) or (2).
Under subsection 474.25A(4), a person will not be taken to have
committed an offence against subsection 474.25A(1) or (2) if:
. the conduct constituting the offence consists only of the child being
present while sexual activity is engaged in by, or in the presence of,
a person, and
. the defendant proves that he or she did not intend to derive
gratification from the child's presence during that activity.
This defence will be included to ensure that a person is not captured
by the offences in cases where a child happens to be present but there
was no intention on the part of that person to derive gratification
from the child's presence. An example of such a situation could be
where an adult masturbates in front of a web cam while another
consenting adult watches online and a child walks in on either of those
adults while they are engaging in that activity. In such a situation,
the child's presence is incidental rather than an aspect of the
activity from which the defendant intended to derive gratification.
A defendant will bear a legal burden in relation to the matter in
subsection 474.25A(4). Sections 13.4 and 13.5 of the Criminal Code
provide that in the case of a 'legal burden' defence, a defendant must
establish the elements of the defence on the balance of probabilities.
If this is done, it will then for the prosecution to refute the defence
beyond reasonable doubt. A legal burden is appropriate as whether or
not the defendant derived gratification from something is a matter
peculiarly within the defendant's knowledge and not readily available
to the prosecution. The defendant is better placed to adduce evidence
that he or she did not intend to derive gratification from the presence
of the child during the activity concerned.
Section 474.28 will contain several technical provisions that will
apply to an offence against section 474.25A, which are further
described in relation to amendments to section 474.28 at items 45 to 55
below.
Section 474.25B - Aggravated offence - child with mental impairment or
under care, supervision or authority of defendant
Section 474.25B will insert an aggravated offence that will apply if a
person commits an offence against subsections 474.25A(1) or (2) in a
circumstance where the child has a mental impairment and/or is under
the care, supervision or authority of the person. The Government
considers such circumstances to be so serious as to warrant a specific
aggravated offence with a maximum penalty that reflects a higher level
of culpability.
Aggravated offence
Under subsection 474.25B(1), it will be an aggravated offence for a person
to commit an offence against:
. subsection 474.25A(1) (engaging in sexual activity with a child using
a carriage service), or
. subsection 474.25A(2) (causing a child to engage in sexual activity
with another person using a carriage service)
where:
. the child has a mental impairment, and/or
. 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.
This offence will be punishable by a maximum penalty of 25 years
imprisonment. This penalty reflects the higher level of culpability
associated with an offence of sexual activity with a child where the victim
has a mental impairment or is under the care, supervision or authority of
the defendant. In such cases the child is particularly vulnerable to
exploitation, including through manipulation by threats, promises or
bribes.
Position of trust or authority will be defined for the purposes of the
Criminal Code at section 272.3, which will be inserted by item 4. The
definition will prescribe the categories of relationships that would
constitute a position of trust or authority, such as a parent, guardian
or carer, or the teacher or employer of a person. However, this
aggravated factor is intended to apply more broadly than just those
specific relationships that will be prescribed under the definition of
position of trust or authority in section 272.2.
The aggravated offence in this section will apply to conduct with
children under 16. It is appropriate that the existence of any kind of
relationship, or where the child is in any way under the care,
supervision or authority of the defendant, be treated as aggravated
conduct and worthy of a higher penalty. It will be for the court to
determine in the specific circumstances of the case whether the child
was otherwise under the care, supervision or authority of the person.
This differs from other provisions relying on the definition of
position of trust or authority. It is appropriate to limit the
relationships to which the new child sex tourism offences of engaging
in sexual activity with a young person 16 years or over and under 18
where the defendant is in a position of trust or authority in relation
to the young person (sections 272.12 and 272.13 to be inserted by item
4 and described in detail above) to certain specific relationships.
The offences in new sections 272.12 and 272.13 will extend criminal
liability in certain situations involving persons aged above the age of
consent (but still below 18).
Section 474.28 sets out general provisions relating to offences in this
Subdivision. The elements that will need to be proven by the prosecution
to establish the aggravated offence will be outlined in new
subsection 474.28(7A).
Under paragraph 474.28(7A)(a), there will be no fault elements for the
physical element described in paragraph 474.25B(1)(a) other than the fault
elements for the underlying offence. The underlying offences have specific
fault elements that need to be proven by the prosecution. This is
appropriate because if the prosecution can establish all the elements of
the underlying offence, it should not be necessary for it to prove in
addition that the defendant knew that he or she committed that offence, or
was reckless or negligent as to whether he or she had committed the
offence.
Under paragraph 474.28(7A)(b), absolute liability will apply to
subparagraph 474.25B(1)(b)(i) (that the child has a mental impairment).
Absolute liability is set out in section 6.2 of the Criminal Code.
The effect of applying absolute liability to an element of an offence
means that no fault element needs to be proved and the defence of
mistake of fact is not available. Applying absolute liability to this
element of the offence is appropriate because that the defendant's
belief about whether the child had a mental impairment is peculiarly
within the knowledge of the defendant. To ameliorate the effect of
applying absolute liability to this circumstance, a defence will be
available to the defendant under subsection 474.29(3), based on a
belief that the child did not have a mental impairment.
Under paragraph 474.28(7A)(c), strict liability will apply to
subparagraph 474.25B(1)(b)(ii) (that the person is under the care,
supervision or authority of the defendant). Strict liability is set
out in section 6.1 of the Criminal Code. The effect of applying strict
liability to an element of an offence means that no fault element needs
to be proved and the defence of mistake of fact is available.
Applying strict liability to this element of the offence is appropriate
given it would be very unlikely that an offender was not aware that he
or she was, for example, the child's teacher, doctor or sports coach.
Accordingly it is not proposed to allow for a specific belief defence
in relation to the existence of a position of trust. However, the
application of strict, rather than absolute, liability will make
available the general defence of mistake of fact.
The defence of mistake of fact is set out in section 9.2 of the
Criminal Code. The defence provides that a person is not criminally
responsible for an offence that includes a physical element to which
strict liability applies if:
. at or before the time of the conduct constituting the physical
element, the person considered whether or not a fact existed, and is
under a mistaken but reasonable belief about those facts, and
. had those facts existed, the conduct would not have constituted an
offence.
Accordingly, to establish this offence, the prosecution will need to
prove beyond reasonable doubt that:
. the person committed the underlying offence, and
. the child had a mental impairment, and/or
. the person was in a position of trust or authority in relation to the
child or the child was otherwise under the care, supervision or
authority of the person.
In light of the provisions in subsection 474.28(7A), the prosecution
will be required to demonstrate that the child had a mental impairment
and/or that the person was in a position of trust or authority in
relation to the child or the child was otherwise under the care,
supervision or authority of the person. The prosecution will not be
required to prove that the person knew or was negligent or reckless to
the relevant fact/s.
The general defences under Part 2.3 of the Criminal Code will be
available to a person accused of an offence under subsection 474.25B(1)
or (2). In addition, a specific defence will be available under
subsection 474.29(3) to a person accused of an offence under
subsection 474.25B(1) where the matter of whether the child had a
mental impairment is at issue (further described in relation to section
474.29(3) below).
Subsection 474.25B(2) will provide that, 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. This subsection makes it clear that a defendant will be able
to rely on any defences that apply to the underlying offences
constituting a charge under subsection 474.25B(2).
Subsection 474.25B(3) will allow a court or jury to return an
alternative verdict if it is satisfied that the defendant is not guilty
of an offence against subsection 474.25B(1) (the aggravated offence)
but is guilty of an offence against subsection 474.25A(1) or (2) (the
underlying offence).
The purpose of this section is to ensure that offenders who have committed
an offence against subsection 474.25A(1) or (2) do not escape conviction on
these lesser charges where an aggravated offence cannot be proven beyond
reasonable doubt, but the lesser charges can.
If a jury hearing a prosecution for an offence against
subsections 474.25B(1) is satisfied that all elements of the offence
are proven beyond reasonable doubt except the aggravating element, it
is appropriate that it will be able to find the defendant guilty
instead of an offence against subsection 474.25A(1) or (2).
Subsection 474.25B(3) will also make clear that the defendant may only be
found guilty of an alternative offence if the defendant has been accorded
procedural fairness in relation to that finding of guilt.
Items 30 to 43
These amendments will improve and simplify the operation of the existing
grooming and procuring offences at sections 474.26 and 474.27.
Removing references to 'submit to' sexual activity
The grooming and procuring offences currently apply to grooming or
procuring a person under 16 years of age to engage in, or submit to, sexual
activity. Items 6 and 10 will insert definitions of 'sexual activity' and
'engage in sexual activity' respectively into the Dictionary of the
Criminal Code. The new definitions will apply to the offences in
sections 474.26 and 474.27. It is intended that submitting to sexual
activity would entail engaging in sexual activity, so the reference to a
person submitting to sexual activity is not necessary. These amendments
will omit references to a person submitting to sexual activity from these
offences.
Labelling 'the participant'
The amendments will also simplify these offences and the specific defences
available by providing that the person referred to in particular paragraphs
which deal with activity involving a person other than the sender or the
recipient is 'the participant' for the purposes of that offence. This will
simplify cross references to this person both within the offence and in the
defence provisions in section 474.29 that apply to the offences. The
defences at section 474.29 (as amended by item 56) will apply across the
offences in Subdivision F. These amendments will clearly identify the
person who is being referred to in the defence provisions at section 474.29
(as amended by item 56) for the purposes of an offence against
section 474.26 or 474.27.
Removing the indecency requirement from grooming offences
The amendments will also remove an existing element in the existing offence
in section 474.27 of using a carriage service to 'groom' persons under 16
years of age. Section 474.27 makes it an offence to transmit a
communication to a child, where the communication includes material that is
indecent, with the intention of making it easier to procure the child to
engage in some form of sexual activity. The amendments will remove the
requirement that the communication includes material that is indecent. The
practice of grooming encompasses a wide range of activity designed to build
a relationship of trust with the child for the purposes of later sexually
exploiting the child. The content of communications between the offender
and the child may not always be indecent - the grooming process is just as
likely to involve platonic, 'innocent' exchanges.
Item 30
The offence at subsection 474.26(1) currently refers to procuring a
recipient of a communication to 'engage in, or submit to, sexual activity'.
As submitting to sexual activity would entail engaging in sexual activity,
the reference to submission is not necessary. Accordingly, this item will
omit the reference to 'or submit to' from paragraph 474.26(1)(b).
Item 31
The offence at subsection 474.26(2) currently refers to procuring a
recipient of a communication to 'engage in, or submit to, sexual activity'.
As submitting to sexual activity would entail engaging in sexual activity,
the reference to submission is not necessary. Accordingly, this item will
omit the reference to 'or submit to' from paragraph 474.26(2)(b).
This item will also identify the person with whom the sender is procuring
the recipient to engage in sexual activity as the participant for the
purposes of an offence against subsection 474.26(2). This will simplify
references to that person in another element of the offence and in the
defence provisions in section 474.29 that apply to an offence against
subsection 474.26(2).
Item 32
This item will identify who the participant is for the purposes of
subsection 474.26(2). Accordingly, this item will replace a reference in
paragraph 474.26(2)(d) to 'the person referred to in paragraph b' with a
reference to 'the participant'.
Item 33
The offence at subsection 474.26(3) currently refers to procuring a
recipient of a communication to 'engage in, or submit to, sexual
activity'. As submitting to sexual activity would entail engaging in
sexual activity, the reference to submission is not necessary.
Accordingly, this item will omit the reference to 'or submit to' from
paragraph 474.26(3)(b).
Item 34
This item will identify the other person in whose presence the sender is
procuring the recipient to engage in sexual activity as the participant for
the purposes of an offence against subsection 474.26(3). This will
simplify references to that person in the defence provisions in
section 474.29 that apply to an offence against subsection 474.26(3).
Item 35
This item will remove the element in paragraph 474.27(1)(b) (that the
communication include material that is indecent) from the offence in
subsection 474.27(1) of using a carriage service to groom persons under
16 year of age for sexual activity with the sender. The practice of
grooming encompasses a wide range of activity designed to build a
relationship of trust with the child for the purposes of later sexually
exploiting the child. The content of communications between the
offender and the child may not always be indecent - the grooming
process is just as likely to involve platonic, 'innocent' exchanges.
Item 36
The offence at subsection 474.27(1) currently refers to conduct engaged in
with the intent of making it easier to procure a recipient of a
communication to 'engage in, or submit to, sexual activity'. As submitting
to sexual activity would entail engaging in sexual activity, the reference
to submission is not necessary. Accordingly, this item will omit the
reference to 'or submit to' from paragraph 474.27(1)(c).
Item 37
This item will remove the element in paragraph 474.27(2)(b) (that the
communication include material that is indecent) from the offence in
subsection 474.27(2) of using a carriage service to groom persons under
16 year of age for sexual activity with another person. The practice
of grooming encompasses a wide range of activity designed to build a
relationship of trust with the child for the purposes of later sexually
exploiting the child. The content of communications between the
offender and the child may not always be indecent - the grooming
process is just as likely to involve platonic, 'innocent' exchanges.
Item 38
The offence at subsection 474.27(2) currently refers to conduct engaged in
with the intent of making it easier to procure a recipient of a
communication to 'engage in, or submit to, sexual activity'. As submitting
to sexual activity would entail engaging in sexual activity, the reference
to submission is not necessary. Accordingly, this item will omit the
reference to 'or submit to' from paragraph 474.27(2)(c).
This item will also identify the person with whom the sender is making it
easier to procure the recipient to engage in sexual activity as the
participant for the purposes of an offence against subsection 474.27(2).
This will simplify references to that person in another element of the
offence and in the defence provisions in section 474.29 that apply to an
offence against subsection 474.27(2).
Item 39
This item will identify who the participant is for the purposes of
subsection 474.27(2). Accordingly, this item will replace a reference
in paragraph 474.27(2)(e) to 'the person referred to in paragraph c'
with a reference to 'the participant'.
Item 40
This item will remove the element in paragraph 474.27(3)(b) (that the
communication include material that is indecent) from the offence in
subsection 474.27(3) of using a carriage service to groom persons under
16 year of age for sexual activity with another child in the presence
of the sender or another person. The practice of grooming encompasses
a wide range of activity designed to build a relationship of trust with
the child for the purposes of later sexually exploiting the child. The
content of communications between the offender and the child may not
always be indecent - the grooming process is just as likely to involve
platonic, 'innocent' exchanges.
Item 41
The offence at subsection 474.27(3) currently refers to conduct engaged
in with the intent of making it easier to procure a recipient of a
communication to 'engage in, or submit to, sexual activity'. As
submitting to sexual activity would entail engaging in sexual activity,
the reference to submission is not necessary. Accordingly, this item
will omit the reference to 'or submit to' from paragraph 474.27(3)(c).
Item 42
This item will identify the other person in whose presence the sender is
making it easier to procure the recipient to engage in sexual activity as
the participant for the purposes of an offence against
subsection 474.27(3). This will simplify references to that person in the
defence provisions in section 474.29 that apply to an offence against
subsection 474.27(3).
Item 43
Items 35, 37 and 40 will amend the grooming offences at
subsections 474.27(1), (2) and (3) to remove the requirement that the
communication sent to a recipient by a defendant include indecent
material. Accordingly, this item will repeal subsections 474.27(4)
and (5), which set out how it is to be determined whether material is
indecent for the purposes of those offences. The practice of grooming
encompasses a wide range of activity designed to build a relationship
of trust with the child for the purposes of later sexually exploiting
the child. The content of communications between the offender and the
child may not always be indecent - the grooming process is just as
likely to involve platonic, 'innocent' exchanges.
Item 44
This item will create a new Commonwealth offence for using a carriage
service for indecent communications with a child, or a person the
defendant believes to be a child. Indecent will be defined by
reference to the standards of ordinary people, and whether material is
indecent will be a matter for the trier of fact.
A number of Australian States and Territories have offences which
criminalise exposing children to pornographic or indecent material.
The offences in some jurisdictions are limited to exposing children
through electronic communications, while others are much broader.
Under existing Commonwealth law, there is a general offence of using a
carriage service in a way that is menacing, harassing or offensive at
section 474.17 of the Criminal Code. It is possible that this offence
would capture indecent communications with a child. However, the
offence only carries a maximum penalty of three years imprisonment.
While this is appropriate given the breadth of the offence and the
range of behaviour that it is intended to capture (being directed at
persons of any age), the penalty is not considered to appropriately
reflect the gravity of sending indecent communications to a child.
There are also existing Commonwealth offences that criminalise using a
carriage service for certain, but not all, indecent communications with
a child. Sections 474.19 and 474.22 of the Criminal Code make it an
offence to use a carriage service for child pornography or child abuse
material. Those offences would cover situations in which the offender
emails child pornography or child abuse material to a child (as the
offences apply regardless of the age of recipient).
It is also an offence to use a carriage service to send communications
(including communications that contain indecent material) to a child,
with the intention of grooming or procuring that child for sexual
activity (sections 474.26 and 474.27 of the Criminal Code). These
offences would cover situations in which the offender emails indecent
material (such as adult pornography) to a child, with the intention of
grooming or procuring the child for sexual activity. However, the
grooming and procuring offences do not address situations in which the
offender emails adult pornography to a child with no further intent to
groom or procure the child for sexual activity. The proposed offence
is intended to fill this gap by creating a specific Commonwealth
offence of using a carriage service for indecent communications with a
child.
Section 474.27A - Using a carriage service to transmit indecent
communication to person under 16 years of age
Section 474.27A will create a new offence for a person of at least
18 years of age to use a carriage service to transmit an indecent
communication to a person under 16 years of age. The purpose of this
offence is to address situations where the offender sends indecent
material to a child with no further intent to groom or procure the
child for sexual activity.
Subsection 474.27A(1) will make it an offence for a person 18 years or
over to use a carriage service to transmit an indecent communication to
a person who is, or who the sender believes to be, under 16 years of
age. This offence will be punishable by a maximum penalty of 7 years
imprisonment. This penalty is consistent with maximum penalties for
State and Territory offences for exposing a child to indecent material.
Section 5.6 of the Criminal Code will apply automatic fault elements to
the physical elements of the offence set out at
paragraphs 474.27A(1)(a),(b) and (d) and part of
paragraph 474.27A(1)(c). To establish this offence, the prosecution
will need to prove beyond reasonable doubt that:
. the person intended to use a carriage service to transmit a
communication to another person (the recipient)
. the person was reckless as to whether the communication included
material that is indecent
. the recipient was (or the person believed the recipient was) under
16 years of age, and
. the person was reckless as to whether he or she was at least 18 years
of age.
Section 5.4 of the Criminal Code provides that a person is reckless
with respect to a circumstance if he or she is aware that the
circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take that
risk.
Item 59 will insert a new presumption applying to the element (where
relevant in all existing and new telecommunications offences to be inserted
by the Bill in Division 474 of the Criminal Code) that a carriage service
was used to engage in the relevant criminal conduct (new section 475.1B).
This element provides the relevant connection to the Commonwealth's
constitutional power. The presumption will provide that, in relation to
the element of the offences that a carriage service was used, if the
prosecution proves beyond reasonable doubt that the person engaged in the
relevant criminal conduct, then it is presumed, unless the person proves to
the contrary, that the person used a carriage service to engage in that
conduct. The operation of the new presumption is described in detail in
relation to item 59 below.
Accordingly, new section 475.1B will apply to the offence in section
474.27A. As a result, if the prosecution can prove beyond reasonable doubt
that the person transmitted an indecent communication to a child, it will
be presumed, unless the defendant proves to the contrary, that the
defendant used a carriage service to engage in that conduct.
Section 474.28 will set out general provisions relating to offences in this
Subdivision. Under subsection 474.28(1), absolute liability will apply to
the physical element of circumstance of the offence that the recipient was
under 16 years of age at the time the communication was transmitted (at
paragraph 474.27A(1)(c)). Absolute liability is set out in section 6.2 of
the Criminal Code. The effect of applying absolute liability to an element
of an offence means that no fault element needs to be proved and the
defence of mistake of fact is not available. Accordingly, while the
prosecution will be required to demonstrate that the child was under 16
years of age at the time the communication was transmitted, it will not be
required to prove that the first person knew or was reckless as to that
fact. Applying absolute liability to this element of the offence is
appropriate given the intended deterrent effect of this offence and the
availability of a specific 'belief about age' defence available under
subsection 474.29(5).
Under paragraphs 474.27A(1)(c), an offence will still be committed
where the recipient is someone whom the defendant believes to be under
the age of 16 years. This is necessary to cater for a standard
investigatory technique, where an officer assumes the identity of a
fictitious child, interacting with a potential predatory adult over the
internet, and arresting that adult before they have the opportunity to
sexually abuse a real child. Thus, a person who engages in conduct to
procure a child to engage in sexual activity outside Australia is not
able to escape liability for an offence even if their conduct was not
ultimately directed towards an actual child.
The requirement for the prosecution to prove that the person believed
the recipient to be under a certain age is consistent with the fault
element of intention, which provides that someone has intention with
respect to a circumstance if he or she believes it exists or will
exist.
Subsections 474.27A(2) and (3) will outline how a court will determine
whether material was indecent for the purposes of a prosecution for an
offence against subsection 474.27A(1).
Subsection 474.27A(2) will provide that the determination of whether
material is indecent is a matter for the trier of fact, not a legal
question. The court or jury will be charged with determining this
factual question based on the evidence presented during a prosecution.
Subsection 474.27A(3) will provide that 'indecent' means indecent
according to the standards of ordinary people. It will not be possible
to describe in legislation all of the types of material that should be
considered indecent, and in what contexts. Further, courts are well
practiced at applying the standards of ordinary people in the criminal
law context. For example, adult pornographic material, which may
otherwise be considered entirely acceptable, is likely to be considered
indecent material for a person to be sending to a recipient under
16 years of age.
The general defences under Part 2.3 of the Criminal Code will be
available to a person accused of an offence under subsection 474.25A(1)
or (2). In addition, a specific 'belief about age' defence will be
available (under subsection 474.29(5), further described below) to a
defendant charged with an offence under subsection 474.27A(1).
Subsection 474.28 will also contain several technical provisions that
will apply to an offence against section 474.27A.
Items 45 to 55
Section 474.28 currently includes several technical provisions relating
to the operation of existing offences in sections 474.26 (using a
carriage service to procure persons under 16 years of age) and 474.27
(using a carriage service to groom persons under 16 years of age) of
the Criminal Code. These include provisions about age-related issues,
evidentiary requirements and key definitions.
These items will amend section 474.28 to extend most of these
provisions to the new offences at sections 474.25A, 474.25B
and 474.27A.
Item 45
Subsection 474.28(1) provides that for the purposes of the procuring and
grooming offences at sections 474.26 and 474.27, absolute liability applies
to the physical element of circumstance in each offence that the recipient
is under 16 years of age.
This item will repeal and replace subsection 474.28(1) so that it will also
cover offences under new sections 474.25A and new section 474.27A.
The revised section will provide that absolute liability applies to the
physical element of circumstance of the offence that:
. in the case of section 474.25A, the child was under 16 years of age,
and
. in the case of section 474.26, 474.27 or 474.27A, the recipient was
someone who was under 16 years of age.
The effect of applying absolute liability to these physical elements is set
out in full under the descriptions of the new offences above.
Items 46 and 47
Subsection 474.28(2) provides that for the purposes of the procuring and
grooming offences at subsections 474.26(2) or (3) and 474.27(2) or (3),
absolute liability applies to the physical element of the circumstance in
each offence that the other person who is to engage in sexual activity with
the recipient is at least 18 years of age. Items 30 to 43 will amend those
sections so that the other person is referred to as 'the participant'.
These items will amend subsection 474.28(2) to also apply absolute
liability to the physical element of circumstance in an offence against
proposed subsection 474.25A(2) (causing a child to engage in sexual
activity with another person using a carriage service) that the other
person who is to engage in sexual activity with the child (the participant)
is at least 18 years of age. This will ensure consistency with the
existing carriage service offences at sections 474.26 and 474.27. The
effect of applying absolute liability to this physical element is set out
in full under the description of proposed section 474.25A.
Item 47 will also replace an existing reference to a person referred to
in particular paragraphs with a reference to 'the participant' to
reflect changes to terminology that will be made to sections 474.26
and 474.27 by items 30 to 43.
Item 48
Subsection 474.28(3) provides that for the purposes of the procuring
and grooming offences at sections 474.26 and 474.27, evidence that the
recipient was represented to the sender of a communication 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.
This item will amend subsection 474.28(3) so that it will also apply to new
section 474.27A. This section, to be inserted by item 44, will create a
new offence for using a carriage service for indecent communications with a
child, or a person the defendant believes to be a child under 16 years of
age. The requirement to prove the sender's belief about the age of the
recipient is a significant burden of proof for the prosecution to overcome.
This amendment will ensure that the prosecution can rely on
representations made to a defendant (e.g. in an online internet exchange
from the recipient) relating to the age of the recipient in discharging
that burden.
Items 49 and 50
Subsection 474.28(4) provides that for the purposes of the procuring
and grooming offences at sections 474.26 and 474.27, evidence that the
other person who is to engage in sexual activity with the recipient was
represented to the sender of a communication as being at least 18 years
of age or over or of a particular age is, in the absence of evidence to
the contrary, proof that the sender believed the other person to be at
least 18 years of age or over or of a particular age. Items 30 to 43
will amend those sections so that the other person is referred to as
'the participant'.
This item will amend subsection 474.28(4) so that it will also apply to
proposed section 474.25A. This section, to be inserted by item 3, will
create two new offences targeting use of a carriage service for sexual
activity with a child under the age of 16 years. The second of these
offences will apply to a person who engages in conduct in relation to a
child under the age of 16 years that causes the child to engage in
sexual activity with another person of at least 18 years of age (the
participant) using a carriage service.
The requirement to prove the sender's belief about the age of the
participant is a significant burden of proof for the prosecution to
overcome. This amendment will ensure that the prosecution can rely on
representations made to a defendant (e.g. in an online internet
exchange from the participant) relating to the age of the participant
in discharging that burden.
This item will also replace an existing reference to a person referred
to in particular paragraphs with a reference to 'the participant' to
reflect changes to terminology that will be made to sections 474.26
and 474.27 by items 30 to 43.
Item 51
Subsection 474.28(5) permits a jury or court to consider certain matters as
admissible evidence in determining how old a person is or was at a
particular time for the purposes of sections 474.26 and 474.27. The
matters listed are the person's appearance, medical or other scientific
opinions and documents being or purporting to be official or medical
records of a foreign country or copies of such records.
Subsection 474.28(6) clarifies that this does not make any other kind of
evidence inadmissible, nor affect a prosecutor's duty to do all he or she
can to adduce the best possible evidence for determining the question of
age.
This item will amend subsection 474.28(5) to apply to the whole of
Subdivision F. Subdivision F, to be created by item 29, will incorporate
existing sections 474.26, 474.27, 474.28 and 474.29 (as amended) and new
sections 474.25A, 474.25B and 474.27A.
Item 52
Subsection 474.28(7) provides that where proposed subsection 474.28(5) is
relied upon in a trial for an offence against section 474.26 or 474.27, the
court must warn the jury that it must be satisfied beyond reasonable doubt
in determining the question. The question would be that the person
concerned either is, or was at a particular time, under 16 years of age; or
is, or was a particular time, at least 18 years of age.
This item will amend subsection 474.28(7) to apply to the whole of
Subdivision F. Subdivision F, to be created by item 29, will incorporate
existing sections 474.26, 474.27, 474.28 and 474.29 (as amended) and
proposed sections 474.25A, 474.25B and 474.27A.
Item 53
Item 29 will create new offences targeting the use of a carriage
service for sexual activity with a child under the age of 16 years.
New section 474.25B will be an aggravated offence for use of a carriage
service for sexual activity with a child where that child has a mental
impairment and/or is under the care, supervision or authority of the
person.
This item will insert new subsection (7A) into section 474.28 to
provide for technical aspects of the proposed aggravated offence at
subsection 474.25B(1).
Paragraph 474.28(7A)(a) will provide that there will be no fault elements
for the physical element described in paragraph 474.25B(1)(a) other than
the fault elements for the underlying offence (an offence against
subsection 474.25A(1) or (2)).
Paragraph 474.28(7A)(b) will apply absolute liability to
subparagraph 474.25B(1)(b)(i).
Paragraph 474.28(7A)(c) will apply strict liability to
subparagraph 474.25B(1)(b)(ii).
The effect of these provisions on the operation of the offence is set
out in full under the description of proposed section 474.25B.
Item 54
Subsection 474.28(9) provides that for the purposes of the procuring
and grooming offences at sections 474.26 and 474.27, it does not matter
that the recipient to whom the sender believes the sender is
transmitting the communication is a fictitious person represented to
the sender as a real person.
This item will amend subsection 474.28(9) so that it will also apply
also to proposed section 474.27A. This section, to be inserted by
item 44, will create a new offence for using a carriage service for
indecent communications with a child, or a person the defendant
believes to be a child under 16 years of age.
This amendment will ensure that standard investigatory techniques can
be used for an offence against proposed section 474.27A. Law
enforcement agencies may conduct investigations by assuming the
identity of a 'child' in order to interact with potential predatory
adults over the internet and arrest an offender before he or she has an
opportunity to commit an offence against an actual child.
Item 55
Subsection 474.28(11) contains definitions of 'procure' and 'sexual
activity' for the purpose of the procuring and grooming offences at
sections 474.26 and 474.27. This subsection will no longer be
required, as items 99 and 100 will insert definitions of each term into
the Dictionary of the Criminal Code. Accordingly, this item will
repeal the subsection.
Item 56
Section 474.29 sets out the circumstances in which a person is not
criminally responsible (defences) for an offence against section 474.26
or 474.27 (use of a carriage service to procure or groom a person under
16 years of age to engage in sexual activity).
This item will repeal and replace section 474.29 so that it contains
defences available to all offences in Subdivision F. Subdivision F, to
be created by item 29, will incorporate existing sections 474.26,
474.27, 474.28 and 474.29 (as amended) and proposed sections 474.25A,
474.25B and 474.27A.
Comparable State and Territory child sex offences are also subject to a
belief about age defence, but the majority of States and Territories
only allow for this defence in relation to offences directed at older
children. This party reflects the fact that State and Territory child
sex offences are tiered, based on the age of the victim. The
Commonwealth's child sex related offences adopt a simple structure and
are not divided by age. As a consequence, available defences such as
the belief about age defence are applicable to conduct involving a
child of any age. It is unlikely, however, that a court or jury would
accept as reasonable a belief on the part of a defendant that a very
young child was over 16 years of age.
The defences in the new section will relate to a defendant's belief
that:
. the child or recipient was not under 16 years of age
. the other person involved in an offence was not at least 18 years of
age, and
. the child did not have a mental impairment.
The defendant will bear a legal burden in relation to a defence
available under new section 474.29. Sections 13.4 and 13.5 of the
Criminal Code provide that in the case of a 'legal burden' defence, a
defendant must establish the elements of the defence on the balance of
probabilities. If this is done, it is then for the prosecution to
refute the defence beyond reasonable doubt. A legal burden is
appropriate as the defendant's subjective belief about another person's
age or whether or not a child has a mental impairment is peculiarly
within the knowledge of the defendant and not available to the
prosecution.
Provisions impacting on evidentiary matters relevant to the defences in
this section are contained in section 474.28 and at
subsection 474.29(6).
Section 474.29 - Defences to offences against this Subdivision
Offences involving sexual activity - belief that child not under
16 years of age
New subsection 474.29(1) will provide a defence to a prosecution for an
offence against section 474.25A (using a carriage service for sexual
activity with a person under 16 years of age) to a defendant who can
prove on the balance of probabilities that, at the time the sexual
activity was engaged in, he or she believed that the child was not
under 16 years of age.
Offences involving sexual activity with person other than defendant -
belief that other person not at least 18 years of age
New subsection 474.29(2) will provide a defence to a prosecution for an
offence against subsection 474.25A(2) (causing a child to engage in
sexual activity with another person using a carriage service) to a
defendant who can prove on the balance of probabilities that, at the
time the sexual activity was engaged in, he or she believed that the
participant was not at least 18 years of age. For the purposes of
subsection 474.25A(2), the participant will be the person that the
defendant causes the child to engage in sexual activity with.
Aggravated offence involving sexual activity - belief that child did
not have mental impairment
New subsection 474.29(3) will provide a defence to a prosecution for an
offence against subsection 474.25B(1). Subsection 474.25B(1) will
create an aggravated offence that will apply if a person commits an
offence against subsection 474.25A(1) or (2) (using a carriage service
for sexual activity with a person under 16 years of age) in a
circumstance where the child has a mental impairment and/or is under
the care, supervision or authority of the person. Subparagraph
474.25B(1)(b)(i) is the element of circumstance of that offence that
the child had a mental impairment.
The defence available under new subsection 474.29(3) will apply if the
defendant can prove that, at the time the sexual activity was engaged
in, he or she believed that the child did not have a mental impairment.
However, as a consequence of the alternative verdict provision at
subsection 474.25B(2), a defendant who successfully makes out this
defence could still be convicted of an offence against
subsection 474.25A(1) or (2) (using a carriage service for sexual
activity with a person under 16 years of age) if the court or jury is
satisfied beyond reasonable doubt that he or she is guilty of such an
offence.
Offences involving procuring or grooming person for sexual activity
with person other than defendant - belief that other person not at
least 18 years of age
Subsection 474.29(4) will provide a defence to a prosecution for an
offence against subsection 474.26(2) or (3) or 474.27(2) or (3) (using
a carriage service to procure or groom a person under 16 years of age
to engage in sexual activity with someone other than the defendant) to
a defendant who can prove that, at the time the communication was
transmitted, he or she believed that the participant was not at least
18 years of age. For the purposes of sections 474.26 and 474.27, the
participant will be the person that the defendant procures or grooms
the child to engage in sexual activity with.
This subsection will be equivalent to current subsection 474.29(2),
which will be repealed by this item, except that this subsection will
apply a legal instead of evidential burden. Where the matter to be
proven relates to a defendant's subjective belief about a circumstance,
in this case, the age of the participant, it is appropriate that the
defendant bear the burden of proof on the balance of probabilities.
This change will make the defence consistent with an equivalent defence
available under the child sex tourism offence regime to be inserted in
the Criminal Code by item 4 (new section 272.16) and also with
comparable belief about age defences in most State and Territory child
sex offence provisions.
Offences involving transmission of communication - belief that
recipient not under 16 years of age
Subsection 474.29(5) will provide a defence to a prosecution for an
offence against section 474.26 (using a carriage service to procure a
person under 16 years of age), 474.27 (using a carriage service to
groom a person under 16 years of age) or 474.27A (using a carriage
service to transmit an indecent communication to a person under
16 years of age) to a defendant who can prove that, at the time the
communication was transmitted, he or she believed that the recipient
was not under 16 years of age.
The defence in this subsection will be equivalent to that in current
subsection 474.29(1), which will be repealed by this item, except that
this subsection will apply a legal instead of evidential burden. Where
the matter to be proven relates to a defendant's subjective belief
about a circumstance, in this case, the age of the recipient, it is
appropriate that the defendant bear the burden of proof on the balance
of probabilities. This change will make the defence consistent with an
equivalent defence available under the child sex tourism offence regime
to be inserted in the Criminal Code by item 4 (new section 272.16) and
also with comparable belief about age defences in most State and
Territory child sex offence provisions.
Trier of fact may take into account whether belief reasonable
Subsection 474.29(6) will provide that in determining whether a
defendant had the belief referred to in one of the defences in
section 474.29, the court or jury may take into account whether the
alleged belief was reasonable in the circumstances. This subsection
will be equivalent to current subsection 474.29(3), which will be
repealed by this item. Other provisions impacting on evidentiary
matters relevant to the defences in this section are contained in
section 474.28.
Item 57
Subdivision C of Division 474 currently includes a range of offences
related to the use of telecommunications. The proposed amendments will
divide Subdivision C into several separate Subdivisions to better reflect
the conduct involved in those offences. This item will insert a new
heading to provide that existing sections 474.29A (Using a carriage service
for suicide related material) and 474.29B (Possessing, controlling,
producing, supplying or obtaining suicide related material for use through
a carriage service) will now be contained in Subdivision G - Offences
relating to use of a carriage service for suicide related material.
Item 58
This item will repeal existing section 474.30 (Defences for NRS employees
and emergency call persons). This is necessary because item 59 will insert
this provision into Division 475 (Miscellaneous) as a consequence of the re-
structuring of Subdivision C of Division 474 into separate Subdivisions.
Item 59
This item will insert existing section 474.30 (Defences for NRS
employees and emergency call persons), which will be repealed by item
58, into Division 475 (Miscellaneous) as new section 475.1A. This is
necessary as a consequence of the re-structure of Subdivision C of
Division 474 into separate Subdivisions.
This item will also insert a new section 475.1B (provisions relating to
element of offence that particular conduct was engaged in using a
carriage service) into Division 475 of the Criminal Code.
Section 475.1B
Section 475.1B will insert a new presumption relating to the
requirement in all of the offences across Division 474 that the
relevant criminal conduct was engaged in using a carriage service. It
will also apply absolute liability to the physical element of the
conduct in the offences that a carriage service was used.
The purpose of this section is to address problems being encountered by
law enforcement agencies in proving beyond reasonable doubt that a
carriage service was used to engage in the relevant criminal conduct.
For example, existing section 474.19 criminalises using a carriage
service to access child pornography material. Often the evidence that
a carriage service was used to engage in this conduct is entirely
circumstantial, consisting of evidence, for example, that the
defendant's computer had child pornography material on the hard drive,
that the computer was connected to the Internet and that records show
the computer accessed particular websites with names suggesting an
association with child pornography material.
Division 474 contains offences directed at telecommunications services,
criminalising the use of a carriage service for a diverse range of
criminal conduct. These offences rely on the Commonwealth's
telecommunications power under the Constitution. Thus, the requirement
in offences across Division 474 that the relevant criminal conduct be
carried out through a carriage service is a jurisdictional requirement.
A jurisdictional element of the offence is an element that does not
relate to the substance of the offence, or the defendant's culpability,
but marks a jurisdictional boundary between matters that fall within
the legislative power of the Commonwealth and those that do not.
Subsection 475.1B(1) will provide for a new presumption applying to the
physical element in offences across Division 474 that a carriage
service was used to engage in the particular criminal conduct. That
is, if 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 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.
A defendant will bear a legal burden in relation to proving that he or
she did not use a carriage service to engage in the conduct.
Sections 13.4 and 13.5 of the Criminal Code provide that in the case of
a 'legal burden', a defendant must prove the relevant matter on the
balance of probabilities. If this is done, it is then for the
prosecution to refute the matter beyond reasonable doubt. Accordingly,
in relation to section 475.1B, it will be presumed that the defendant
used a carriage service to engage in the conduct unless the defendant
can prove on the balance of probabilities that he or she did not use a
carriage service to engage in the conduct.
A legal burden is appropriate because, if the prosecution has proved
beyond reasonable doubt that the defendant engaged in the relevant
criminal conduct, then the defendant should only be absolved from
liability for a Commonwealth telecommunications offence if the
defendant can prove they did not use a carriage service to engage in
the conduct.
Subsection 475.1B(2) will apply absolute liability to the physical
element in offences across Division 474 that a carriage service was
used to engage in the relevant criminal conduct (the physical element
to which the above described presumption will apply). That is, if 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 the prosecution proves beyond reasonable doubt
that the person intended to engage in that particular conduct, then
absolute liability will apply to the physical element of the offence
that a carriage service was used to engage in that particular conduct.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of
fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the
defendant knew, or was reckless that, he or she engaged in the relevant
conduct using a carriage service.
Absolute liability is appropriate and required for the element of the
offences that the person engaged in the conduct using a carriage
service because this element is a jurisdictional element of the offence
and does not relate to the substance of the offence or the culpability
of the defendant. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers.
Item 60
This item will insert a new definition relevant to existing offences in
section 474.19 (using a carriage service for child pornography
material) and section 474.22 (using a carriage service for child abuse
material). Sections 474.19 and 474.22 criminalise using a carriage
service to make available child pornography or child abuse material.
This item will insert a new extended definition of make available into
the Dictionary of the Criminal Code. Make available, in relation to
material, will include, but not be limited to, describing how to obtain
access, or describing methods that are likely to facilitate access, to
material (for example by setting out the name of a website, an IP
address, a URL, a password, or the name of a newsgroup).
This definition will make clear that using a carriage service to make
child pornography or child abuse material available will include, for
example, using a carriage service to distribute a list of URLs linking
to sites containing child pornography or child abuse material.
Part 3 - Consequential amendments
Existing child sex offences are referred to in a number of Acts in
order to allow the exercise of certain law enforcement powers for the
investigation of such offences. Minor technical amendments are
required to include updated references to existing and new child sex
tourism and other child sex offence provisions to reflect the changes
made by this Bill.
Part 3 will make consequential amendments to the Australian Crime
Commission Act 2002, the Crimes Act 1914, the Surveillance Devices Act
2004 and the Telecommunications (Interception and Access) Act 1979 to
ensure that existing law enforcement powers are available to combat all
Commonwealth child sex offences in the Criminal Code, including new
offences that will be inserted by Schedule 1 of this Bill.
Australian Crime Commission Act 2002
Item 61 - Definition of 'serious and organised crime'
This item will ensure that the Australian Crime Commission (ACC) is able to
conduct intelligence operations and investigations into child sex-related
activity carried out via a postal or carriage service by amending the
definition of serious and organised crime in subsection 4(1) the Australian
Crime Commission Act (ACC Act).
Currently, the Australian Crime Commission (ACC) is able to undertake
intelligence operations or to investigate matters relating to 'federally
relevant criminal activity' where authorised by the ACC Board under section
7C of the ACC Act. Federally relevant criminal activity is defined in
subsection 4(1) to include a relevant criminal activity, where the
'relevant crime' is an offence against a law of the Commonwealth.
Subsection 4(1) defines relevant crime to include serious and organised
crime.
The definition of serious and organised crime in subsection 4(1) of the Act
currently includes a reference to offences that are serious offences within
the meaning of the Proceeds of Crime Act 2002, are of a kind prescribed by
regulations or involve any of the criminal conduct listed in
paragraph 4(1)(d) of the Act (such as theft, fraud, violence or
cybercrime). The Australian Crime Commission Amendment Regulations 2006
(No 4) (the 2006 Regulations) prescribe existing carriage service offences
in sections 474.19, 474.20, 474.22, 474.23, 474.26 and 474.27 of the
Criminal Code for the purposes of this definition.
This item will amend paragraph 4(1)(d) to insert a reference 'an offence
against Subdivision B or C of Division 471, or D or F of Division 474, of
the Criminal Code'.
The effect of this item will be to enable the ACC Board to authorise the
ACC to conduct investigations or intelligence operations into:
. new offences relating to the use of a postal or similar service for child
pornography material or child abuse material (Subdivision B of proposed
new Division 471)
. new offences relating to the use of a postal or similar service involving
sexual activity with a person under the age of 16 (Subdivision C of
proposed new Division 471)
. existing offences relating to the use of a carriage service for child
pornography material or child abuse material (Subdivision D of Division
474), and
. new and existing offences relating to the use of a carriage service
involving sexual activity with a person under the age of 16 (proposed new
Subdivision F of Division 474).
The inclusion of a reference to existing offences in Division 474 (that is,
sections 474.19, 474.20, 474.22, 474.23, 474.26 and 474.27) will enshrine
in the Act the changes that were made to the definition of serious and
organised crime by the 2006 Regulations. Those changes enabled the ACC to
conduct an intelligence operation or investigation into networks of people
using a carriage service to exchange child pornography or child abuse
material, or to procure or groom persons under 16 for sexual
activity.
Crimes Act 1914
Items 62, 63 and 64 - Controlled operations for obtaining evidence about
Commonwealth offences
In June 2009, the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009 was introduced into Federal Parliament. If enacted, that
Bill will insert a new Division 1 of Part IAB into the Crimes Act, which
will contain preliminary provisions relating to the authorisation, conduct
and monitoring of controlled operations.
Under proposed section 15GD, a controlled operation for the purposes of
Part IAB will be defined to mean an operation that:
. involves the participation of law enforcement officers
. is carried out to obtain evidence that may lead to the prosecution of a
person for a serious Commonwealth offence or a serious State offence that
has a federal aspect, and
. may involve a law enforcement officer or other person in conduct that
would, apart from Part IAB, constitute a Commonwealth offence.
Proposed section 15GE of Division 1 will define the serious Commonwealth
offences to which Part IAB (as amended by that Bill) will apply.
Items 62 and 63 will include updated references in proposed section 15GE to
existing and new child sex offences in the Criminal Code relating to
conduct engaged in outside Australia and the use of postal and carriage
services (most of which will be either or amended by this Bill). Item 64
sets out the application of the controlled operations provisions to child
sex offences.
Item 62 - Paragraph 15GE(2)(v)
Subsection 15GE(1) defines serious Commonwealth offence to mean a
Commonwealth offence involving a matter mentioned in subsection 15GE(2)
that is punishable by imprisonment for three or more years. Subsection
15GE(2) contains an exhaustive list of matters to which subsection 15GE(1)
relates, such as theft, fraud, violence and people smuggling.
Item 62 will replace the reference to 'child sex tourism' in paragraph
15GE(2)(v) with a reference to 'a sexual offence against a person who is
under 18 outside Australia'. This amendment will ensure that the
definition of serious Commonwealth offence comprehensively covers the
overseas child sex-related offences to be inserted in the Criminal Code by
this Bill and more appropriately reflects the nature of those offences.
Item 63 - Subsection 15GE(3)
Item 63 will repeal proposed subsection 15GE(3) of the Crimes Act, which
currently deems the terrorism offences in Part 5.3 of the Criminal Code and
the carriage service offences in sections 474.19, 474.20, 474.22, 474.23,
474.26 and 474.27 of the Criminal Code to be serious Commonwealth offences
for the purposes of Part IAB.
The item will replace the subsection with a new 15GE(3), which will deem
the following Criminal Code offences to be serious Commonwealth offences
for the purposes of Part IAB:
. offences contained in Part 5.3 (relating to terrorism), previously
covered by proposed subsection 15GE(3)
. new offences relating to the use of a postal or similar service for child
pornography material or child abuse material (Subdivision B of proposed
new Division 471)
. new offences relating to the use of a postal or similar service involving
sexual activity with a person under the age of 16 (Subdivision C of
proposed new Division 471)
. existing offences relating to the use of a carriage service for child
pornography material or child abuse material (Subdivision D of Division
474), and
. new and existing offences relating to the use of a carriage service
involving sexual activity with a person under the age of 16 (proposed new
Subdivision F of Division 474).
This amendment will ensure that the provisions in Part IAB of the Crimes
Act (as amended by the Serious and Organised Crime Bill) relating to the
authorisation, conduct and monitoring of controlled operations will apply
to the full suite of existing and new offences applying to child sex-
related activity carried out via a postal or carriage service.
Item 64 - Application
This item will ensure that a controlled operation may be authorised in
relation to conduct constituting an offence described in
subsections 15GE(2) and (3) (as amended by items 62 and 63) even if that
conduct occurred before the commencement of this item.
The item clarifies that a controlled operation will not be able to be
authorised in relation to conduct that did not constitute an offence before
the commencement of this item.
For example, a controlled operation may be authorised in relation to
conduct that occurred prior to the commencement of this item that would
constitute the existing offence of using a carriage service to procure a
person under 16 years of age (in section 474.26).
However, a controlled operation could not, under these amendments, be
authorised in relation to conduct that occurred prior to commencement of
this item that would constitute the new offence (to be inserted by the
Bill) of using a carriage service for sexual activity with a person under
16 years of age (section 474.25A).
Items 65-69 - Protection of children in proceedings for sexual offences
Part IAD of the Crimes Act sets out provisions relating to the protection
of children in proceedings for sexual offences, which includes special
rules and procedures relating to the admissibility of evidence, cross-
examination of child witnesses and special facilities and arrangements for
child witnesses to give evidence (such as via closed-circuit television or
video recordings).
Items 65 to 69 amend section 15Y of Part IAD to include updated references
to existing and new child sex offences in the Criminal Code. Items 70 and
71 will amend section 15YT to clarify the effect of Part IAD on the
operation of video-link evidence provisions in new Divisions 272 and 273 of
the Criminal Code.
Item 65 - Paragraph 15Y(1)(a)
This item will repeal paragraph 15Y(1)(a), which provides that Part IAD
applies to proceedings for an offence against Part IIIA (relating to child
sex tourism). It is necessary to repeal this provision because the
offences in Part IIIA will be transferred to new Division 272 of the
Criminal Code by this Bill.
Item 66 - After paragraph 15Y(1)(caa)
This item will insert new paragraphs 15Y(1)(cab) and (cac) into section
15Y, which sets out the proceedings to which Part IAD applies. The
amendment will provide that Part IAD will apply to proceedings for the
following Criminal Code offences:
. child sex offences committed outside Australia (contained in new Division
272, inserted by this Bill), and
. offences involving child pornography material or child abuse material
outside Australia (contained in new Division 273, inserted by this Bill).
This will ensure that the special rules and procedures under Part IAD will
continue to be available for offences of the same nature as those currently
contained in Part IIIA of the Crimes Act, but which will be revised and
included in new Division 272 of the Criminal Code.
This item will also extend the special rules and procedures in Part IAD to
proceedings for the new offences in Division 273 of the Criminal Code,
which relate to conduct involving child pornography or child abuse material
outside Australia. Together with the amendments made by items 67 - 69
(discussed below), this will ensure that Part IAD applies to all existing
and proposed child sex offences in the Criminal Code.
Item 67 - Paragraph 15Y(1)(ca)
Item 67 will repeal paragraph 15Y(1)(ca), which provides that Part IAD
applies to proceedings for an offence against sections 474.26 or 474.27 of
the Criminal Code, which relate to use of a carriage service to procure or
groom persons under 16 years of age).
This item will replace this paragraph with new paragraphs 15Y(ca) and
(cba), which apply Part IAD to proceedings for the following Criminal Code
offences:
. new offences relating to the use of a postal or similar service for child
pornography material or child abuse material (Subdivision B of proposed
new Division 471)
. new offences relating to the use of a postal or similar service involving
sexual activity with a person under the age of 16 (Subdivision C of
proposed new Division 471)
. existing offences relating to the use of a carriage service for child
pornography material or child abuse material (Subdivision D of Division
474), and
. new and existing offences relating to the use of a carriage service
involving sexual activity with a person under the age of 16 (proposed new
Subdivision F of Division 474).
Because new Subdivision F of Division 474 of the Criminal Code will include
sections 474.26 and 474.27, it is necessary to repeal the reference to them
in the current paragraph 15Y(1)(ca).
Together with the amendments made by items 65 and 66 (discussed above),
this will ensure that Part IAD applies to all existing and proposed child
sex offences in the Criminal Code.
Items 68 and 69 - Paragraph 15Y(1)(e) and (f)
These items will correct what appears to be an error in paragraphs
15Y(1)(e) and (f). Those paragraphs in 15Y(1) will be amended to ensure
that Part IAD applies to proceedings that arise through the extension of
criminal liability to persons who commit an offence that:
. includes the commission of, or intention to commit, an offence referred
to in 'one of the preceding paragraphs' of subsection 15Y(1) (see
paragraph 15Y(1)(e)), or
. relates to an attempt, conspiracy or incitement to commit an offence
referred to in 'one of the preceding paragraphs' of subsection 15Y(1)
(see paragraph 15Y(1)(f)).
Currently, paragraphs 15Y(1)(e) and (f) operate in relation to some, but
not all, of the offences specified in the preceding paragraphs in
subsection 15Y(1).
Item 70 - Video link evidence provisions relating to child sex offences
outside Australia unaffected
This item will repeal section 15YT, which provides that Part IAD does not
affect the operation of the video link evidence provisions in Part IIIA of
the Crimes Act. It will also substitute the repealed section with a new
section 15YT, which provides that Part IAD does not affect the operation of
the video link evidence provisions which will be introduced into Divisions
272 and 273 of the Criminal Code by this Bill (relating to child sex
offences committed outside Australia and offences involving child
pornography material or child abuse material outside Australia,
respectively).
It is necessary to repeal and replace the existing provision because the
child sex-related video-link evidence provisions, which are currently
contained in Part IIIA, will be transferred by this Bill to new Division
272 of the Criminal Code. New Division 273 will also contain similar video-
link evidence provisions applying to the new offences in that Division,
which relate to dealing in child pornography or child abuse material
overseas.
Item 71 - Application
This item preserves the application of sections 15Y and 15YT of Part IAD,
as in force before the commencement of items 65, 68, 69 and 70, to
proceedings for offences under Part IIIA (which relate to child sex
tourism).
Surveillance Devices Act 2004
Items 72 and 73 - Emergency authorisation - risk of loss of evidence
Under section 30 of the Surveillance Devices Act (the SD Act), an emergency
authorisation for the use of a surveillance device can be made where there
is a risk of loss of evidence in relation to certain offences. Currently,
the existing child sex tourism offences in Part IIIA of the Crimes Act are
listed (in subparagraph 30(1)(a)(iii)) as offences for which an emergency
authorisation may be sought.
Items 72 and 73 will amend paragraph 30(1)(a) of the SD Act to:
. replace references to the current child sex tourism provisions in the
Crimes Act with updated references to the proposed new child sex offences
for conduct occurring outside Australia in the Criminal Code, and
. insert references to the proposed new Criminal Code overseas child
pornography and child abuse material offences, to allow the making of
emergency authorisations in relation to these proposed new offences.
Item 72 - Subparagraph 30(1)(a)(iii)
This item will repeal subparagraph 30(1)(a)(iii), which provides that
offences against Part IIIA of the Crimes Act (relating to child sex
tourism) are offences in relation to which an emergency authorisation may
be sought.
This amendment will reflect the repeal of the offences in Part IIIA, which
Schedule 1 of this Bill will transfer to new Division 272 of the Criminal
Code.
Item 73 - Subparagraph 30(1)(a)(viii)
This item amends subparagraph 30(1)(a)(viii) of the SD Act to include a
reference to offences against proposed new Divisions 272 and 273 of the
Criminal Code (which relate to child sex offences committed outside
Australia and offences involving child pornography or child abuse material
outside Australia, respectively).
This item will ensure that the new offences in Divisions 272 and 273 are
offences in relation to which an emergency authorisation may be sought
under section 30 of the SD Act.
Item 74 - Application
This item will clarify that, despite the repeal of the reference to Part
IIIA of the Crimes Act in subparagraph 30(1)(a)(iii), an emergency
authorisation may still be sought in relation to conduct that constituted
an offence under Part IIIA while those offences remained in force.
Telecommunications (Interception and Access) Act 1979
Items 75 - 78 - Definition of serious offences in section 5D
Under the Telecommunications (Interception and Access) Act (TIA Act),
telecommunications interception (TI) warrants may only be issued to further
the investigation of a 'serious offence'. Section 5D of the TIA Act
defines serious offence for the purposes of the Act. Section 5D currently
contains references to existing carriage service offences in Division 474
of the Criminal Code , the existing child sex tourism offences in Part IIIA
of the Crimes Act and offences relating to child pornography.
Items 75 - 78 will ensure that TI warrants may be issued for the full suite
of Commonwealth child sex offences, including new offences to be inserted
into the Criminal Code by this Bill. This will reflect the serious nature
of Commonwealth child sex offences, which warrant the use of covert powers.
Item 75 - Subsection 5D(2A)
This item will repeal subsection 5D(2A) of the TIA Act, which contains a
reference to existing carriage service offences in sections 474.19, 474.20,
474.22, 474.23, 474.26 and 474.27 of the Criminal Code.
The reference to these provisions will be replaced by a reference to
Subdivisions D and F of Division 474 of the Criminal Code in new
subsection 5D(3B) (discussed below), which will cover existing and new
child sex-related carriage service offences.
Item 76
This item will omit the reference to existing child sex tourism offences in
Part IIIA of the Crimes Act in subparagraph 5D(3)(d)(xi).
Under subsection 5D(3) of the TIA Act, a TI warrant is only available for
the investigation of an offence to which a maximum penalty of at least
seven years imprisonment applies, and where the offence involves, among
other things, two or more offenders and substantial planning and
organisation.
Following the removal of the reference to Part IIIA of the Criminal Code in
subparagraph 5D(3)(d)(xi), a reference to proposed new Division 272 of the
Criminal Code (which will include updated child sex tourism offences) will
be included in new subsection 5D(3B) of the TIA Act (discussed below).
The removal of the reference to Part IIIA of the Crimes Act in subsection
5D(3) will remove the need to prove the additional requirements (that is,
the seven year imprisonment threshold and that the offence involved two or
more offenders etc) for a TI warrant to be available for the investigation
of child sex tourism offences. This will ensure consistency with other
Commonwealth child sex offences currently prescribed in section 5D, which
do not require proof of these additional requirements.
Item 77
This item will repeal existing subsection 5D(3B) of the TIA Act, which
deems an offence to be a serious offence for which TI is available if the
conduct constituting the offence involved:
. the production, publication, possession, supply or sale of, or other
dealing in, child pornography, or
. consenting to or procuring the employment of a child, or employing a
child, in connection with child pornography.
Item 77 will replace the subsection with a new subsection 5D(3B), which
will consolidate all of the new and existing Commonwealth child sex
offences (that is, offences in Divisions 272, 273, 471 and 474 of the
Criminal Code) into one subsection as serious offences for the purposes of
the TIA Act.
The new subsection 5D(3B) will retain the wording of the repealed
subsection, to ensure that other offences relating to child pornography or
the procurement of a child in connection with child pornography remain
within the definition of serious offence.
Item 78 - Application
Subitem (1) will provide that the proposed new subsection 5D(3B) of the
definition of serious offence in the TIA Act will only capture offences
committed on or after commencement, apart from in circumstances set out in
subitems (2) and (3).
Subitem (2) will provide that the new subsection 5D(3B) does, however,
apply to the following offences, whether or not the conduct constituting
the offence was committed before, on or after commencement of this item:
. an offence against the existing carriage service offences (in sections
474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the Criminal Code),
or
. an offence involving the production, publication, possession, supply,
sale of, or other dealing in, child pornography, or consenting to,
employing, or procuring the employment of, a child for child pornography
(previously specified in the repealed subsection 5D(3B), which will be
included in proposed new paragraph 5D(3B)(b)).
This clarifies that a TI warrant may be issued under subsection 5D(3B) for
the investigation of conduct that would have constituted an offence before
the commencement of these amendments.
Subitem (3) will provide that the new paragraph 5D(3B)(a) is to be taken to
include a reference to an offence under Part IIIA of the Crimes Act
(relating to child sex tourism), as in force before the commencement of
this item.
This clarifies that a TI warrant may be issued under new subsection 5D(3B)
for conduct that constituted a child sex tourism offence under Part IIIA of
the Crimes Act.
Schedule 2 - Forfeiture of child sex material
GENERAL OUTLINE
Schedule 2 will provide for a specific scheme in the Crimes Act 1914
for the forfeiture of child pornography and child abuse material that
is related to a Commonwealth child sex offence. Once forfeited, such
items will become the property of the Commonwealth.
In the course of investigations, law enforcement agencies may seize or
otherwise obtain child pornography and child abuse material in forms
such as photos or DVDs, or computers or other electronic equipment
containing such material. It is essential for law enforcement agencies
to be able to deal appropriately with such material or equipment,
regardless of whether criminal proceedings subsequently occur.
Currently, there is no specific Commonwealth scheme for dealing with
such material or equipment. In cases where no person is convicted of
an offence (either because no prosecution is commenced or a prosecution
is commenced but results in an acquittal) the seized items must be
returned. The return of child pornography and child abuse material, or
items containing such material, is clearly inappropriate, and risks
subjecting the owner to prosecution for State and Territory possession
of child pornography offences. In cases where a person is convicted of
an offence, an application must currently be made for the forfeiture of
the material under the Proceeds of Crime Act 2002. This is a lengthy
process and one ill-suited for dealing with child pornography and child
abuse material.
The proposed Commonwealth forfeiture scheme draws on existing State,
Territory and international approaches. Those schemes, being either
specific schemes for the forfeiture of child pornography and child
abuse material or general forfeiture schemes applicable to child sex
offences, fall into three broad categories:
. post-conviction - this allows a court to order the forfeiture of child
pornography and child abuse material following the conviction of a person
for a relevant child sex offence
. acquittal - this allows a court to order the forfeiture of child
pornography and child abuse material where a prosecution for an offence
is commenced but the defendant is acquitted, and
. on application to a court - this allows a court to order the forfeiture
of seized material on application as a distinct action, separate to any
prosecution which may or may not have occurred.
The availability of some or all of these types of forfeiture varies
between schemes.
Administrative forfeiture
Under the proposed Commonwealth scheme, child pornography or child
abuse material or articles containing such material will be forfeited
via a notice scheme administered by the Australian Federal Police (AFP)
and State and Territory police forces, or by the court in case of
dispute.
Provision for administrative forfeiture in the first instance is
necessary to allow the relevant law enforcement agency to efficiently
deal with a high volume of material or articles seized or otherwise
obtained. It will allow for administrative forfeiture in cases where
the forfeiture of the material is undisputed. Accordingly, the court
would not need to deal with every item believed to be child pornography
or child abuse material.
The scheme will apply to all child pornography or child abuse material
seized or otherwise obtained by a Commonwealth, State or Territory
police officer, where he or she believes on reasonable grounds that the
material or article was derived from or used in connection with the
commission of a Commonwealth child sex offence. Under the scheme, an
officer will have the power to issue a notice for the forfeiture of the
material or article.
The scheme will apply to articles containing child pornography or child
abuse material (such as computers) as well as to the material itself.
It is important that computer hard drives or other data storage devices
containing the material are forfeited so that they can be either
destroyed or completely wiped by authorities, as selective deletion of
files, in addition to being time-consuming, will not necessarily (for
technical reasons) result in the offensive files being permanently
irretrievable.
The Commonwealth child sex offences to which the scheme will apply
include the existing child sex tourism offence regime and offences for
using a carriage service for child sex-related activity (as amended by
this Bill), new offences for using a postal service for child sex-
related activity and new offences of dealing in child pornography or
child abuse material overseas.
Issue of a notice
A member of the AFP or a State or Territory police force may issue a
forfeiture notice to the owner of the material or article or the person
in possession of the material or article. The notice must be given to
the owner of the material or article or, if the owner cannot be
identified after reasonable inquiry, the person who possessed the
material or article before it was seized or otherwise obtained.
An issuing officer may also give a copy of the notice to any person
whom they reasonably believe will be directly or indirectly affected by
the proposed forfeiture of the material or article specified in the
notice.
Content of the notice
The notice will be in writing and must:
. identify the material or article containing the material which is the
subject of the notice
. explain that the issuing officer believes on reasonable grounds that the
material or article was derived from or used in connection with the
commission of a Commonwealth child sex offence
. explain that the material or article will be forfeited to the
Commonwealth unless the owner or a person who has a right to possess the
material or article objects to the forfeiture and notifies the head of
the relevant police force within 30 days
. explain the circumstances in which the notice recipient or a person who
would be affected by the proposed forfeiture may request from the head of
the relevant police force within 30 days of the issue of the notice, a
copy of lawful material that is proposed to be forfeited
. explain the effect of forfeiture of the material or article
. explain the circumstances in which compensation is payable to a person
who owned, had a right to possess or who otherwise had property in a
thing which is forfeited, and
. request a person claiming compensation for forfeiture of the thing to
notify the head of the relevant police force of that claim.
Forfeiture if no objection is raised
If no objection is received by the head of the police force that
includes the officer that issued the notice within the specified time
frame, the material or article will be taken to be forfeited to the
Commonwealth. The material or article may be destroyed or otherwise
dealt with by the head of the relevant police force in any manner which
he or she thinks fit, including by retaining the material or article
for as long as it is required for evidential purposes or for research,
intelligence, training or victim identification purposes.
Dealing with an objection or request for copies
Objections
If there is an objection to the forfeiture of the item or material, and
the head of the relevant police force is not persuaded that the grounds
for the objection warrant return of the material or article, the matter
must be resolved by a court on application by the Commonwealth Director
of Public Prosecutions (CDPP).
Copies
If the recipient of a notice, or a person who would be affected by the
proposed forfeiture of material or an article, makes a request within
30 days for copies of legitimate parts of the material or article (that
is, parts that are not related to a Commonwealth child sex offence) the
head of the relevant police force must, to the extent that it is
reasonably practicable to do so, provide copies of the material to the
person.
To ensure that the AFP or a State or Territory police force is not
required to retain material once it is forfeited, copies will not be
required to be given where a request is not made within a 30 day
period, or before a court has made a forfeiture order.
Court-ordered forfeiture
Disputed forfeiture proceedings, and proceedings initiated apart from
the administrative scheme, will be dealt with by a court on application
by the CDPP. The court will be required to order the forfeiture of all
child pornography or child abuse material, or articles containing such
material, that it is satisfied were derived from or used in connection
with the commission of a Commonwealth child sex offence:
. in respect of which a person is or has been convicted, or
. that the court is satisfied (on the balance of probabilities) has been
committed.
In making a finding that a Commonwealth child sex offence has been
committed on the balance of probabilities, it would not be necessary
for a court to make a finding against any specific person, but rather
to determine that a Commonwealth child sex offence has been committed.
Forfeiture may therefore be available even where a prosecution has not
commenced (for example, due to a lack of evidence against any
particular person or where the owner's involvement is innocent).
A prosecutor who makes an application to the court for the forfeiture
of material or articles must give written notice of the application to
any person who claims to own or have a right to possess, the material
or article, or any person whom the prosecutor reasonably believes would
be directly or indirectly affected by the proposed forfeiture. A court
may make a forfeiture order even if a person who is given notice fails
to appear at the hearing of the application.
Where a court has ordered the forfeiture of material or articles, the
AFP Commissioner may deal with the thing in any way he or she considers
appropriate, including by destroying the thing, or retaining it for
evidential, research, intelligence, training or victim identification
purposes. Where the forfeited material or article was the subject of a
disputed forfeiture initiated by a State or Territory police officer,
the head of the relevant police force would determine how a forfeited
thing is to be dealt with.
A court may make an order in relation to the payment of a reasonable
amount of compensation to a person with property in equipment that
would be covered by a forfeiture order at the same time that it deals
with the forfeiture matter.
Compensation for administrative and court-ordered forfeiture
The scheme will provide for the reasonable compensation of innocent
third parties who have a property interest in equipment that has been
forfeited under the scheme, either administratively or as a result of a
court order.
Compensation will only be available for the forfeiture of a computer,
data storage device or other piece of electronic equipment containing
child abuse or child pornography material. This will ensure that
compensation is not payable for the forfeiture of other items that
merely constitute child abuse or child pornography material.
Under the scheme, the recipient of a forfeiture notice will be required
to notify the head of the relevant police force of their intention to
seek compensation. If the matter cannot be resolved between the
parties, it may be determined by the court on application by the
person.
A person will be not be entitled to compensation where he or she has
been convicted of or is found by a court - either in the current
proceedings, or previously - to have committed the Commonwealth child
sex offence to which the forfeiture leading to the compensation claim
relates.
A court will be required to defer consideration of a compensation
matter in relation to a person if the person is the subject of an
investigation or civil or criminal proceedings relating to a
Commonwealth child sex offence (including appeal proceedings).
Crimes Act 1914
Item 1 - 5 - Subsection 3(1)
These items will define terms associated with the new forfeiture scheme,
and insert those new definitions into subsection 3(1) of Part I of the
Crimes Act (which includes definitions that are to be applied throughout
the entire Act).
The following terms are defined and inserted:
child abuse material will be defined to have the same meaning as in Part
10.6 of the Criminal Code - that is, material that depicts or describes a
person under 18 years of age as a victim of torture, cruelty, or physical
abuse, and does so in a way that reasonable persons would regard as being,
in all the circumstances, offensive.
child pornography material will be defined to have the same meaning as in
Part 10.6 of the Criminal Code. That definition covers a range of
material, including that which depicts or describes a person under 18 years
of age engaged or involved in a sexual pose or sexual activity and material
the dominant characteristic of which depicts for a sexual purpose the
sexual organs, the anal region, or the breasts of a person under 18 years
of age.
Commonwealth child sex offence will be defined to mean the following
categories of offences under the Criminal Code:
. child sex offences outside Australia (new Division 272)
. offences involving child pornography material or child abuse material
outside Australia (Division 273)
. offences relating to the use of postal or similar services in
connection with child pornography material, child abuse material and
sexual activity involving children (Subdivisions B and C of Division
471)
. offences relating to use of telecommunications in connection with
child pornography material, child abuse material and sexual activity
involving children (Subdivisions D and F of Division 474).
Part 2.4 of the Criminal Code contains provisions that extend criminal
liability to persons who do not actually commit an offence, but:
. attempt to commit an offence (attempt: section 11.1)
. are accomplices to the commission of an offence (complicity and common
purpose: section 11.2)
. procure the commission of an offence by an agent (innocent agency:
section 11.3)
. incite the commission of an offence (incitement: section 11.4), or
. conspire with another person to commit an offence (conspiracy: section
11.5).
The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009,
if enacted, will insert a new section 11.2A into Part 2.4 of the Criminal
Code to extend criminal liability to persons who agree to commit an offence
together, where an offence is committed under that agreement (that is, the
offence of joint commission).
Paragraphs (b) and (c) of the definition of Commonwealth child sex offence
will include the extensions of criminal responsibility in sections 11.1 -
11.5, where they relate to any of the offences referred to in paragraph (a)
(outlined above).
The new Part IE, which will contain the Commonwealth forfeiture scheme,
will not only apply to offences specified in the definition of Commonwealth
child sex offence in this item, but also to other Commonwealth child sex
offences that were in force before the commencement of the new Part.
The Note at the end of the definition directs the reader to Schedule 2 of
this amending Act, item 9 of which sets out the relevant offences. These
include the child sex tourism offences formerly in Part IIIA of the
Crimes Act, existing child sex offences in the Criminal Code (which will be
amended by this Act), and provisions relating to extensions of criminal
liability for these offences.
For further information, see the explanation of item 9, below.
data will be given the same meaning that it has in subsection 3C(1) of Part
IAA of the Crimes Act (which concerns search, information gathering and
arrest and related powers). That is, data will include information in any
form, and any program (or part of a program).
The definition will be moved to subsection 3(1) of Part I of the Crimes Act
(which contains preliminary provisions) so that it applies throughout the
entire Act.
data storage device will be given the same meaning that it has in
subsection 3C(1) of Part IAA of the Crimes Act (which concerns search,
information gathering and arrest and related powers). That is, data
storage device will be defined to mean a thing, such as a disk or file
server, which contains, or is designed to contain, data for use by a
computer.
The definition will be moved to subsection 3(1) of Part I of the Crimes Act
(which contains preliminary provisions) so that it applies throughout the
entire Act.
Item 6 - Subsection 3C(1) (definition of data)
This item will repeal the definition of data in subsection 3C(1) of Part
IAA of the Crimes Act. The definition will be moved to subsection 3(1) of
Part I of the Act.
Item 7 - Subsection 3C(1) (definition of data storage device)
This item will repeal the definition of data storage device in subsection
3C(1) of Part IAA of the Crimes Act. The definition will be moved to
subsection 3(1) of Part I of the Act.
Item 8 - After Part ID
This item will insert a new Part IE of the Crimes Act, which will contain a
specific Commonwealth scheme for the forfeiture of child pornography and
child abuse material. The key features of the scheme are set out in the
general outline to this Schedule, above.
Division 1 - Things this Part applies to
Section 23ZA - Application
This section provides that the new forfeiture scheme in Part IE applies to
an item that is a forfeitable thing, defined to mean either:
. child abuse material or child pornography material (as defined in
subsection 3(1) of the Crimes Act), or
. a computer, data storage device (as defined in subsection 3(1) of the
Crimes Act) or another piece of electronic equipment that contains
child abuse material or child pornography material.
This section will enable such material or articles to be forfeited under
the scheme, provided other conditions (outlined below) are met.
Division 2- Forfeiture by operation of law after notice is given
Division 2 of Part IE establishes a notice scheme for the forfeiture of
child pornography or child abuse material by operation of law, which would
be administered by the AFP or, where appropriate, State and Territory
police.
The Division also sets out the circumstances in which persons who would be
affected by a proposed forfeiture under the scheme may request copies of
legitimate parts of the material or article.
Section 23ZB - Forfeiture of material by operation of law
This section sets out the arrangements for the notice scheme under which
administrative forfeiture may occur. The section also deals with the
forfeitable things to which the administrative scheme applies, persons who
may issue a forfeiture notice, persons who must be given a notice to
trigger the operation of the scheme, and the content and effect of a
notice.
Subsection 23ZB(1) provides that section 23ZB applies in relation to a
forfeitable thing if a constable believes that the forfeitable thing is
derived from, or was used in connection with, the commission of a
Commonwealth child sex offence. The new definition of Commonwealth
child sex offence in subsection 3(1) of the Act (inserted by item 3 and
discussed above) will apply, as will the definition of forfeitable
thing in new section 23ZA.
While the scheme will only apply to Commonwealth child sex offences,
State and Territory police officers will also be able to exercise
powers under the scheme. This is achieved through the application to
the new Part 1E of the existing subsection 3(1) definition of constable
(which refers to a member or special member of the AFP or a member of
the police force or police service of a State or Territory). This
approach is consistent with that currently taken in the Crimes Act to
other Commonwealth law enforcement powers (for example, search,
information gathering, arrest and related powers). It is appropriate
that State and Territory police are capable of exercising these
particular powers to deal with situations where a State or Territory
police officer (for example, in investigating conduct giving rise to
State and Commonwealth offences) obtains forfeitable things that are
related to a Commonwealth child sex offence.
Under this subsection, the notice scheme will apply to any forfeitable
thing, regardless of whether it was seized or otherwise obtained by a
police officer, and whether it was obtained in the course of an
investigation into a Commonwealth, State or Territory offence. This
will enable the forfeiture of child pornography or child abuse material
that provides evidence of a Commonwealth child sex offence, regardless
of how the material comes into the possession of the police. This
would allow forfeiture where, for example, material found in the course
of an investigation into an unrelated Commonwealth offence or a State
or Territory offence is subsequently determined to be child pornography
or child abuse material.
To issue a notice, a constable must form the belief that a thing was
'derived from or used in connection with the commission of' a
Commonwealth child sex offence. This ensures there is a clear
constitutional link between the forfeited thing and Commonwealth
legislative power. It will also ensure that all child pornography or
child abuse material likely to be relevant to Commonwealth offences is
covered by the scheme.
Subsection 23ZB(2) provides a constable with the power to issue a
forfeiture notice in respect of a forfeitable thing to the owner or, if the
constable is unable to identify the owner after reasonable inquiry, to a
person who possesses the thing.
The owner need not be the sole owner of the thing, and may include a person
who owns a thing jointly with others. For example, a constable may issue a
husband with a forfeiture notice in relation to a home computer, where the
husband owns the computer jointly with his wife.
The requirement that a constable make reasonable inquiries to identify the
owner of the thing before giving a notice to a person who possesses the
thing will ensure that, where possible, owners are made aware of the
proposed forfeiture of their property. This is an important safeguard for
'innocent owners,' such as the owner of an Internet café in which a
customer has used a computer to download child pornography. However, given
that the overarching objective of the administrative forfeiture scheme is
to allow the police to efficiently deal with a high volume of child
pornography and child abuse material, it is appropriate to permit a
constable to issue a person in possession with a notice, in certain
circumstances.
Where a person is given a notice in relation to an item that has been
lawfully seized, the 'person who possesses the thing' is taken to include a
person who would possess the thing, had it not been seized.
Subsection 23ZB(3) sets out the matters that are required to be identified
and explained in a valid forfeiture notice. This will properly inform
persons with an interest in the thing that is proposed to be forfeited of
their rights and obligations under the administrative forfeiture scheme to
ensure that the process is conducted fairly and efficiently.
Where the provision refers to 'the head of the police force' or 'the head
of a police force that includes the constable', the reference is to the
Commissioner of the police force of which the constable that gave the
notice is a member.
Subsection 23ZB(4) permits a constable who has given a notice to an owner
or possessor of a thing to then give a copy of that notice to any person
whom he or she reasonably believes will be directly or indirectly affected
by the proposed forfeiture. This will provide an additional safeguard for
people who, while not the owners or possessors of a piece of electronic
equipment, may have important or valuable data stored on it, such as tax
records on an accountant's computer, or family photographs on a relative's
computer.
The provision of a copy of the notice will enable a constable to alert such
a person to the fact that forfeiture is proposed to occur within 30 days in
the absence of an objection, and that the affected person may be entitled,
within that time, to request copies of any lawful material contained in the
material or article. Section 23ZC deals with providing copies of innocuous
parts of material proposed to be forfeited, and is discussed below.
Subsection 23ZB(5) provides that, in the absence of an objection by the
owner or person with a right to possess a thing that is the subject of a
forfeiture notice within 30 days of the notice being given, the thing is
automatically forfeited to the Commonwealth at the end of the 30 days.
Specifying a 30 day period for automatic forfeiture will enable law
enforcement agencies to deal with forfeiture matters in a timely and
efficient manner. This is also consistent with the 30 day period applying
to forfeiture under section 205A of the Customs Act 1901, under which
things seized as forfeited goods may be forfeited within 30 days of the
issue of a notice.
Subsection 23ZB(6) includes a mechanism for referring disputed forfeiture
matters to a court. The subsection provides that, where there is an
objection to a proposed forfeiture within 30 days of the notice being
given, the Commonwealth is required to institute forfeiture proceedings
under section 23ZD (which provides for forfeiture of material by court
order on application, and is discussed below). The head of the police
force that includes the constable that gave the notice is required to
instruct the CDPP to make the application, which the Director must then
make.
The subsection allows for the situation where an objection is made on
grounds that the head of the relevant police force is persuaded are
correct. In such instances, it will not be necessary for the forfeiture
matter to proceed to court.
Under section 31 of the Director of Public Prosecutions Act 1983, the
Director is permitted to delegate his power to institute such proceedings
to a member of the staff of the Office of the CDPP.
Subsection 23ZB(7) ensures that an objection or lack of an objection to a
forfeiture notice will not be taken to be an admission by the person that
makes the objection of any liability in relation to a Commonwealth child
sex offence, and cannot be relied on as evidence against the person in
proceedings for the offence.
Section 23ZC - Providing copies of innocuous parts of material to be
forfeited
This section provides for requests for the provision of copies of innocuous
parts of a thing, or data contained in a thing, that is proposed to be
forfeited.
Subsection 23ZC(1) provides that the section applies where a thing is the
subject of a forfeiture notice and, within 30 days of the notice being
given, the notice recipient or another person who would be directly or
indirectly affected by the proposed forfeiture has requested in writing
(given to the head of the police force that includes the constable that
issued the notice) that they be given a copy of innocuous parts of the
thing or data contained in the thing. The definition of data in subsection
3(1) of the Act (moved to that subsection by item 4, and discussed above)
will apply.
The subsection enables people who may have an interest other than property
in the thing that is proposed to be forfeited to request copies of
innocuous material. This is an important safeguard for people who, while
not the owners or possessors of a piece of electronic equipment, may
nonetheless have important or valuable data stored on the equipment. By
way of example, this could include people with tax records stored on an
accountant's computer, or with family photographs stored on a relative's
computer.
Paragraph 23ZC(1)(c) requires a request to clearly specify the parts or
data to which the request relates to enable those parts or data to be
readily identified. This will ensure that authorities are not required to
analyse each individual file on a computer to ensure that only innocuous
material is being copied, which is extremely time-consuming and labour-
intensive.
The subsection also makes it clear that the section will only apply where a
thing specified in the request is not child abuse material or child
pornography material.
Subsection 23ZC(2) provides that a head of a police force must comply with
a request for copies of innocuous parts or data on a thing where he or she
is satisfied that it is reasonably practicable to do so. Conversely, where
the head of a police force is not satisfied that it is reasonably
practicable to comply with a request (for example, where the request is non-
specific or unreasonably broad), the head of the police force is not
obliged to comply with the request. This is an appropriate limitation to
place on the obligation to provide copies, given the significant resources
and cost involved in discharging that obligation.
Subsection 23ZC(3) provides that the head of a police force is not obliged
to comply with a request where:
. compliance might endanger the safety of a person
. compliance might prejudice an investigation or prosecution (not
limited to a Commonwealth child sex offence), or
. possession by the person of the copy might constitute a Commonwealth,
State or Territory offence (such as offences relating to possession of
child pornography).
This last ground of refusal is consistent with that set out in section 3N
of the Crimes Act, which sets out the requirement to provide copies of
material seized under a warrant.
Subsection 23ZC(4) provides that if the head of the relevant police
force complies with a request to provide copies of parts of, or data
contained in, a thing that is subsequently forfeited as a result of a
conviction of a person for a Commonwealth child sex offence (dealt with
in section 23ZD), the court may order the person to pay the relevant
police force the costs incurred in complying with the request.
This would provide a mechanism for the AFP and State and Territory
police forces to seek reimbursement for discharging what is often a
costly obligation to provide copies, but would - appropriately - be
limited to circumstances where the person making the request is later
convicted of a Commonwealth child sex offence.
Division 3 - Forfeiture by court order on application
Section 23ZD - Forfeiture of material by court order on application
This section sets out the circumstances in which a court will be
required to order the forfeiture of a forfeitable thing (as defined in
new section 23ZA). The section also sets out the application and
notice procedure for court-ordered forfeiture and the additional orders
the court may make in dealing with a forfeiture application.
Subsection 23ZD(1) provides that the CDPP (or a member of staff of the
Office of the CDPP to whom this power has been delegated under section
31 of the Director of Public Prosecutions Act) may apply to a State or
Territory court for a forfeiture order.
The subsection requires the court, on application by the CDPP, to order
the forfeiture of all forfeitable things that the court is satisfied
were derived from or used in connection with the commission of a
Commonwealth child sex offence, that:
. a person is (in the current proceedings) or has been (by another court)
convicted of, or
. the court is satisfied (on the balance of probabilities) has been
committed.
The new definition of Commonwealth child sex offence in subsection 3(1)
of the Crimes Act (inserted by item 3 and discussed above) will apply,
as will the definition of forfeitable thing in section 23ZA. To avoid
doubt, paragraph 23ZD(1)(b) provides that the court will not be
required to order the forfeiture of things that have already become the
property of the Commonwealth (for example, under section 23ZB).
The relevant standard of proof for all of the matters about which the
court is required to be satisfied in subsection 23ZD(1) is the balance
of probabilities (see subsection 23ZD(6), discussed below).
Note 1 at the end of subsection 23ZD(1) clarifies that the CDPP may
make a forfeiture application under the subsection either:
. following an objection to a proposed administrative forfeiture and as a
result of an instruction from the head of the relevant police force
(under subsection 23ZB(6)), or
. on the CDPP's own initiative (that is, where court-ordered forfeiture
is sought in the first instance and the matter has not been dealt
with under the administrative scheme).
Note 2 at the end of subsection 23ZD(1) clarifies that, while a court
must apply a civil standard of proof in reaching a finding that a thing
should be forfeited, a forfeiture order may be made in the course of
either civil or criminal proceedings.
Subsection 23ZD(2) sets out the notice procedure that is to apply to
applications made under subsection 23ZD(1). The subsection requires
the CDPP to provide notice of the application to any person who claims
to own or have a right to possess the material or article, or any
person whom the CDPP reasonably believes would be directly or
indirectly affected by the proposed forfeiture. This broad notice
procedure will ensure that all persons with an interest in a
forfeitable thing are afforded the opportunity to attend the hearing of
the application, and make representations if invited to do so by the
court. However, a court may still make an order where the person
notified fails to appear (see subsection 23ZD(4), discussed below).
Subsection 23ZD(3) allows the court to make any interim orders that it
considers appropriate. These include, but are not limited to, orders
relating to the delivery or retention of things pending the decision of
the court on the application for a forfeiture order, and orders
relating to the making and provision of copies of innocuous parts of
material or data contained in a forfeitable thing. The subsection
enables a court to make an order in relation to the provision of
copies, notwithstanding that the person failed to lodge a written
request for copies within 30 days of the forfeiture notice being issued
(as required by subsection 23ZC(1)).
Subsection 23ZD(4) sets out the circumstances in which a court is not
prevented from ordering the forfeiture of all things that it is
satisfied were derived from, or used in connection with, the commission
of a Commonwealth child sex offence under subsection 23ZD(1). The
subsection provides that a forfeiture order:
. may be made even if a person entitled to be given notice of the
application fails to appear at the hearing of the application
. need not, but may be, based on a finding as to the commission of a
particular Commonwealth child sex offence
. need not be based on a finding that a particular person committed a
Commonwealth child sex offence.
This subsection clarifies that it is not necessary for a court, in
ordering the forfeiture of a thing, to make a finding against any
specific person. Rather, the court need only be satisfied, on the
balance of probabilities, that a Commonwealth child sex offence has
been committed. Forfeiture may therefore be available even where a
prosecution has not commenced, or where a prosecution was commenced but
resulted in an acquittal. It is appropriate to apply the civil
standard of proof in such circumstances because the determination is
not directed against a person but rather at the fact that the material
in question should be forfeited.
Subsection 23ZD(5) permits a court, upon making a forfeiture order, to
order the Commonwealth to pay a reasonable amount of compensation to a
person who owns, has a right to possess or otherwise has property in a
computer, data storage device, or other electronic equipment covered by
the forfeiture order (a data storage device is defined in
subsection 3(1) of the Crimes Act and is discussed above). The
Commonwealth's liability to pay compensation is set out in section
23ZF. Allowing the court to hear and determine a forfeiture order and a
related compensation matter at the same time will ensure the most
efficient use of the court's resources.
Compensation will not be available for all forfeitable things (as
defined in section 23ZA) but rather electronic equipment that
constitutes a forfeitable thing. This is intended to ensure that no
compensation is payable for child pornography or child abuse material.
To make an order in relation to compensation, subsection 23ZD(5)
requires the court to be satisfied that the person seeking
compensation:
. has appeared at the hearing of the forfeiture application
. 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 to
which the forfeiture relates
. is not the subject of civil or criminal proceedings in another court
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
. is not the subject of an investigation into a Commonwealth child sex
offence of which the thing provides evidence.
The grounds upon which a person is ineligible for compensation in
paragraphs 23ZD(5)(b) - (d) mirror those in new section 23ZF (which
gives rise to the Commonwealth's liability to pay a person compensation
for the forfeiture of electronic equipment, and is discussed below).
Under paragraph 23ZD(5)(b), a court may refuse to order the
Commonwealth to pay compensation for a forfeiture to a person if it
finds, on the balance of probabilities, that the person:
. committed or has previously been found to have committed the
Commonwealth child sex offence to which the forfeiture relates, or
. is or has been convicted of the Commonwealth child sex offence to
which the forfeiture relates.
Under this paragraph, it is open to the court, for the purposes of
determining the compensation matter, to receive evidence and to find
that the person seeking compensation committed the Commonwealth child
sex offence to which the forfeiture relates. An example illustrating
the need for this provision is set out below.
A person is charged with accessing child pornography over the internet.
The person is tried and ultimately acquitted because the jury is unable
to discount the possibility that someone else was responsible for
accessing the defendant's computer (although they would have been
satisfied on the balance of probabilities that it was the defendant).
The CDPP then applies for forfeiture under 23ZD(1) to ensure that the
computer containing the material is forfeited and erased. The CDPP
advises the court that it does not have to make a finding that a
particular person committed the offence and the court orders forfeiture
without making any such finding.
By relying on paragraph 23ZD(5)(c), the Commonwealth could resist a
claim for compensation by putting forward evidence to support a
finding, on the balance of probabilities, that a person committed the
relevant Commonwealth child sex offence.
Under paragraphs 23ZD(5)(c) and (d), a court may refuse to make an order
for compensation if satisfied that the person seeking compensation is the
subject of an investigation, or civil or criminal proceedings relating to a
Commonwealth child sex offence (including appeal proceedings).
Subsection 23ZD(6) clarifies that the relevant standard of proof for the
matters listed in subsections 23ZD(1) and (5) is the balance of
probabilities.
Division 4 - Provisions relating to forfeiture under this Part generally
Sections 23ZE and 23ZF deal with the effect of forfeiture under new Part IE
and the circumstances giving rise to the Commonwealth's liability to pay
reasonable compensation for a forfeited thing. Section 23ZG provides a
power of delegation for the head of a Commonwealth, State or Territory
police force in relation to the powers, functions and duties conferred on
the head by Part IE.
All three provisions apply in relation to both administrative forfeiture
(under section 23ZB) and court ordered forfeiture (under section 23ZD).
Section 23ZE - Effect of forfeiture under this part
Subsections 23ZE(1) - (3) provide that, where a thing is forfeited under
Part IE (either by operation of law under section 23ZB or by court order
under section 23ZD), the forfeited thing becomes the property of the
Commonwealth. Where the Commonwealth does not have possession of the
thing, a constable may take possession without a warrant.
Subsection 23ZE(4) provides that, once forfeited, the Commissioner (defined
in subsection 3(1) to mean the Commissioner of the AFP) may deal with the
thing in any way he or she considers appropriate, including by destroying
the thing. Where the forfeited thing was the subject of a disputed
forfeiture initiated by a State or Territory police officer, the head of
the relevant police force may determine how a forfeited thing is to be
dealt with.
Forfeited items that are not destroyed may be retained for as long as they
are required for evidential, research, intelligence, training or victim
identification purposes.
Section 23ZF - Compensation for forfeiture of electronic equipment etc.
Section 23ZF sets out the scope of the Commonwealth's liability to pay
compensation for a forfeited thing and includes an application procedure
for resolving disputed compensation matters.
Subsection 23ZF(1) sets out the circumstances which give rise to the
Commonwealth's liability to pay compensation. It provides that section
23ZF applies to a person who owned, had a right to possess or otherwise had
property in a computer, data storage device or other electronic equipment
that was forfeited under Part IE. A data storage device is defined in
subsection 3(1) (inserted by item 5, discussed above).
The inclusion of such a provision is an important safeguard for innocent
third parties who may not have been aware of a proposed forfeiture or who,
if they were aware, declined to object or were unsuccessful in preventing
the proposed forfeiture. For example, the provision would assist an
employer where an employee has used a computer to download child
pornography, and that computer is forfeited under Part IE.
The broad application of the compensation provision to persons with an
interest in forfeited property is intended to make certain the
constitutional basis for Part IE. In particular, the provision for
compensation for innocent third parties will remove the risk that a
court would regard a forfeiture under Part IE as an acquisition of
property other than on just terms (contrary to paragraph 51(xxxi) of
the Commonwealth Constitution).
Subsection 23ZF(2) makes the Commonwealth liable to pay a reasonable amount
of compensation for a forfeiture to a person referred to in
subsection 23ZF(1). The effect of subsections 23ZF(1) and (2) is that the
entitlement to seek compensation simply arises after a thing has been
forfeited (whether under the administrative scheme in section 23ZB or
pursuant to a court order under section 23ZD), and provided the person
seeking compensation has property in the forfeited thing. No time limits
apply to when a person must seek compensation.
Subsection 23ZF(3) sets out the application procedure for court proceedings
to resolve disputed compensation matters. This procedure may only be
relied upon where the parties are unable to agree on the amount of
compensation between themselves.
A forfeiture notice (or copy of a notice) given by a constable under
section 23ZB should inform the notice recipient of the circumstances in
which compensation is payable and request a person who wishes to claim
compensation to notify the head of the relevant police force of that claim
(see the requirements in relation to the content of the notice set out in
subsection 23ZB(3)). Where a request is made, and if the head of the
police force (or their delegate, under section 23ZG) and the person seeking
compensation agree on the amount of compensation to be paid, the matter
need not proceed to a court.
However, if the parties are unable to agree, the person is entitled, under
subsection 23ZF(3), to apply to a court of competent jurisdiction in a
State or Territory for the recovery from the Commonwealth of such
reasonable amount of compensation as the court determines. While the
subsection does not specify the matters a court would take into account in
determining a 'reasonable amount', the nature of the applicant's property
interest in the forfeited thing would be relevant.
Although subsection 23ZF(3) obliges the CDPP and the person seeking
compensation to attempt to resolve the claim for compensation before
proceeding to court, this should not interfere with the court's ability to
determine a compensation matter at the same time it deals with the
forfeiture matter under subsection 23ZD(5).
The requirement that a person apply to a State or Territory court of
competent jurisdiction will enable the same courts that are permitted to
determine a forfeiture matter under Part IE to determine a compensation
matter, provided the court has jurisdiction to deal with a claim in the
amount specified.
Subsection 23ZF(4) requires the court to defer consideration of the
compensation matter until such time as the person is no longer covered by
the circumstances set out in paragraphs 23ZF(4)(a) - (c). The subsection
provides that the court must not determine an amount of compensation for a
person, while that person:
. is the subject of an investigation relating to a Commonwealth child
sex offence of which the forfeited thing provides evidence, or
. is the subject of civil or criminal proceedings (including appeal
proceedings) relating to a Commonwealth child sex offence from which
the thing was allegedly derived, or in connection with which the thing
was allegedly used.
This is necessary to ensure that the Commonwealth's liability to pay
compensation only extends to persons who were not involved in the
commission of a Commonwealth child sex offence to which the forfeited thing
relates. At the same time, the provision ensures that persons whose
culpability in relation to a Commonwealth child sex offence has not been
finally determined are not unjustly deprived of their entitlement to
compensation. It does so by allowing the court to consider the matter when
a person is no longer the subject of a criminal investigation or court
proceedings.
Subsection 23ZF(5) ensures that the Commonwealth's liability to pay
compensation does not extend to persons who are found to have committed a
Commonwealth child sex offence to which the forfeiture relates. Under the
subsection, the Commonwealth is not liable to pay compensation to a person
who:
. is or has been convicted of a Commonwealth child sex offence to which
the forfeiture relates
. has been found by a court in civil proceedings to have committed a
Commonwealth child sex offence to which the forfeiture relates, or
. the court, in the current proceedings, finds (on the balance of
probabilities) to have committed a Commonwealth child sex offence to
which the forfeiture relates.
It is therefore open to the court, for the purposes of determining the
compensation matter, to receive evidence and find that the person
seeking compensation committed a Commonwealth child sex offence to
which the forfeiture relates.
The grounds upon which a person will be ineligible for compensation in
subsection 23ZF(5) mirror those contained in paragraphs 23ZD(5)(b) -
(d) (which allow a court to determine a claim for compensation at the
same time it makes a forfeiture order, discussed above).
Section 23ZG - Delegation by head of police force
This item will permit the AFP Commissioner or the head of a State or
Territory police force to delegate any of the powers, functions and duties
conferred on him or her under the new Part IE. The relevant powers,
functions and duties relate to receiving and dealing with requests for
copies of innocuous material and compensation for forfeited items, dealing
with objections to administrative forfeiture and determining how a
forfeited thing is to be dealt with.
While it is appropriate to confer these powers, functions and duties on the
head of the relevant police force in the first instance, it may not always
be practical for that person to exercise these powers personally.
Consistent with the delegation power included in the Australian Federal
Police Act 1979, this provision enables delegation to any constable who is
a member of the force.
Item 9 - Application of Part 1E of the Crimes Act 1914
Subitem (1) provides that the new Part IE will apply in relation to all
Commonwealth child sex offences, whether or not the conduct constituting
those offences occurred before, on or after the commencement of the Part.
The provision would not impose retrospective criminal liability.
This will ensure that all child pornography or child abuse material linked
to the commission of a Commonwealth child sex offence is captured by the
scheme. It is appropriate that the scheme, in aiming to prevent the return
of child pornography or child abuse material to an owner, does not
distinguish between material on the basis of when the relevant criminal
conduct occurred.
Subitem (2) provides that the new Part IE will apply in relation to conduct
that occurred before the commencement of Part IE, where that conduct would
constitute an offence against:
. Part IIIA of the Crimes Act (relating to child sex tourism), which is
to be repealed by this Bill
. sections 474.19, 474.20,474.22, 474.23, 474.26 or 474.27 of the
Criminal Code (offences relating to the use of telecommunications),
which are to be amended by this Bill
. any of the provisions set out above, because of sections 11.1 - 1.5 of
the Criminal Code, which extend criminal liability to persons who do
not actually commit an offence, but:
o attempt to commit an offence (attempt: section 11.1)
o are accomplices to the commission of an offence (complicity and
common purpose: section 11.2)
o agree to commit an offence with another person or persons, and
an offence is committed under that agreement (joint commission:
section 11.2A, to be inserted by the Crimes Legislation
Amendment (Serious and Organised Crime) Bill, if enacted)
o procure the commission of an offence by an agent (innocent
agency: section 11.3)
o incite the commission of an offence (incitement: section 11.4),
or
o conspire with another person to commit an offence (conspiracy:
section 11.5)
. Part IIIA of the Crimes Act (relating to child sex tourism) that is
taken to have been committed because of sections 5, 7, 7A and 86 of
the Crimes Act, which extend criminal liability to persons who do not
actually commit an offence, but:
o aid, abet, counsel or procure, or by act or omission are in any
way knowingly concerned in the commission of an offence (former
section 5)
o attempt to commit an offence (former section 7)
o incite, urge, aid or encourage the commission of an offence
(former section 7A), and
o conspire with another person to commit an offence (former
section 86).