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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES LEGISLATION AMENDMENT
(SEXUAL OFFENCES AGAINST CHILDREN) BILL 2010
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(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
The Crimes Legislation Amendment (Sexual Offences Against Children)
Bill will ensure comprehensive coverage of sexual offences against
children, including reflecting best practice approaches domestically
and internationally. The Bill will:
. strengthen the existing child sex tourism offence regime
. introduce new offences for dealing in child pornography and child
abuse material overseas
. introduce new offences for using a postal service for child sex-
related activity
. enhance the coverage of offences for using a carriage service for
sexual activity with a child or for child pornography or child abuse
material
. make minor consequential amendments to ensure existing law
enforcement powers are available to combat Commonwealth child sex-
related offences, and
. introduce a new scheme to provide for the forfeiture of child
pornography and child abuse material and items containing such
material.
The Government amendments to the Bill address issues raised during the
Senate Standing Committee on Legal and Constitutional Affairs Inquiry into
the Bill. The amendments will insert new provisions requiring the consent
of the Attorney-General for the commencement of proceedings against a
person under 18 years of age for offences relating to online or overseas
dealings in child pornography or child abuse material.
Existing 'carriage service' offences in Division 474 of the Criminal
Code Act 1995 for using the Internet or a mobile phone for dealings in
child pornography or child abuse material and new offences to be
inserted by the Bill for Australians dealing in child pornography
material or child abuse material overseas (new Division 273 of the
Criminal Code) are intended to target adult offenders committing
offences involving the sexual exploitation of children.
These laws do not exclude the sending of child pornography or child
abuse material by persons under 18 years of age. Accordingly, young
persons who email or text sexually explicit images of themselves or of
other young people (known as 'sexting') may be subject to prosecution
for an offence. This ensures that instances of young people sending
sexually explicit images of themselves or others can be dealt with if
they are malicious or exploitative. There is also a community interest
in preventing the circulation of explicit images of minors.
However, to ensure there are sufficient safeguards to prevent the
unnecessary prosecution of young persons, the amendments will insert
new provisions requiring the consent of the Attorney-General before
proceedings for an overseas or carriage service child pornography or
child abuse material offence can be commenced against a person under 18
years of age.
FINANCIAL IMPACT STATEMENT
The amendments to the Bill will have no financial impact.
ACRONYMS
Criminal Code Criminal Code Act 1995
The Bill Crimes Legislation Amendment (Sexual Offences Against
Children) Bill
NOTES ON CLAUSES
Amendments to Schedule 1
Amendment (1)
This amendment will amend Item 4 of Schedule 1 of the Bill by inserting
a new section 273.2A 'Consent to commencement of proceedings where
defendant under 18' into Subdivision A of new Division 273 of the
Criminal Code.
Division 273 contains a suite of new offences for Australians dealing
in child pornography or child abuse material outside Australia.
Subdivision A of Division 273 sets out a number of preliminary
provisions applying to the offences. Subdivision B of Division 273
sets out the offence provisions.
The offences in Subdivision B of Division 273 are not limited to
offending by persons over 18. New section 273.2A will insert a
provision requiring the consent of the Attorney-General in relation to
the commencement of proceedings against persons under 18 for an offence
against Division 273.
Subsection 273.2A(1) will state that proceedings for an offence against
Division 273 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.
Subsection 273.2A(2) will state that a person may still be arrested
for, charged with, or remanded in custody or on bail in connection with
such an offence before the necessary consent has been given.
Amendment (2)
This amendment will amend Item 28 of Schedule 1 of the Bill by
inserting a new section 474.24C 'Consent to commencement of proceedings
where defendant under 18' into Subdivision D of existing Division 474
of the Criminal Code.
Division 474 of the Criminal Code sets out a range of
telecommunications offences (in Subdivision C). Subdivision C includes
offences directed at the use of a carriage service for dealings in
child pornography or child abuse material. The Bill splits Subdivision
C into several new Subdivisions. Existing and new offences relating to
child pornography and child abuse material will be contained in new
Subdivision D of Division 474.
The existing and new offences in new Subdivision D of Division 474 are
not limited to offending by persons over 18. New section 474.24C will
insert a provision requiring the consent of the Attorney-General in
relation to the commencement of proceedings against persons under 18
for an offence against Subdivision D of Division 474.
Subsection 474.24C(1) will state that proceedings for an offence
against Subdivision D of Division 474 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.
Subsection 474.24C(2) will state that a person may still be arrested
for, charged with, or remanded in custody or on bail in connection with
such an offence before the necessary consent has been given.
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