CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2017 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2017

2016 - 2017 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2017 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, the Hon Michael Keenan MP)

CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2017 GENERAL OUTLINE 1. This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all aspects of the child sex offender cycle from the commission of an offence, to bail, sentencing and post- imprisonment. 2. This Bill combats the evolving use of the internet in child sexual abuse and addresses community concern that the sentencing for child sex offences is not commensurate to the seriousness of these crimes. 3. This Bill amends the Crimes Act 1914 (the "Crimes Act"), the Criminal Code Act 1995 (the "Criminal Code"), the Customs Act 1901 (the "Customs Act"), and the Telecommunications (Interception and Access Act) 1979 (the "TIA Act") to:  insert community safety as a factor that can be taken into account to revoke the parole of a federal offender without notice;  remove the requirement to seek leave before a recorded interview of a vulnerable witness can be admitted as evidence in chief;  prevent children and other vulnerable witnesses from being cross-examined at committal proceedings;  insert notes in the Criminal Code to provide additional clarity regarding the scope of conduct captured by child sex offences;  insert new aggravated offences for child sexual abuse that involves subjecting the child to cruel, inhuman or degrading treatment, or which causes the death of the child;  insert new offences to criminalise the grooming of third parties for the purpose of procuring a child for sexual activity;  insert a new offence to criminalise the provision of an electronic service to facilitate dealings with child abuse material online;  increase the maximum penalties for certain Commonwealth child sex offences and for breach of the obligation on internet service providers and internet content hosts to report child abuse material to police;  introduce a mandatory sentencing scheme to apply to the Commonwealth child sex offences that attract the highest maximum penalties, and all other Commonwealth child sex offences if the offender is a repeat child sex offender;  insert a presumption against bail for Commonwealth child sex offences that attract the highest maximum penalties; 2

 revise the factors which must be taken into account when sentencing all federal offenders to ensure that considerations of a guilty pleas cover any benefit to the community, or any victim of, or witness to, the offence;  make it an aggravating factor in sentencing if a federal offender used their standing in the community to assist in the commission of an offence;  ensure that when sentencing a Commonwealth child sex offender, the court must have regard to the objective of rehabilitating the person, including by considering whether to impose any conditions about rehabilitation and treatment and considering if the length of sentence is sufficient for the person to undertake a rehabilitation program while in custody;  insert additional aggravating sentencing factors that apply when a court is sentencing for certain child sex offences, including considering the age and maturity of the victim and the number of people involved in the commission of the offence;  insert a presumption in favour of cumulative sentences for Commonwealth child sex offences;  insert a presumption in favour of Commonwealth child sex offenders serving an actual term of imprisonment;  require that if a court is releasing a Commonwealth child sex offender on a recognizance release order, the offender must be supervised in the community, and undertake such treatment and rehabilitation programs as their probation officer directs;  add "residential treatment orders" as an additional sentencing alternative to allow intellectually disabled offenders to receive access to specialised treatment options;  allow certain information to be withheld from an offender where it affects the decision about their release to parole in limited national security circumstances;  reduce the amount of 'clean street time' that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and license;  require a period of time to be served in custody if a federal offender's parole order is revoked; and  remove references to "child pornography material" within Commonwealth legislation and replace with "child abuse material". FINANCIAL IMPACT 4. The financial impact of this Bill is largely limited to the costs associated with housing federal prisoners on remand and sentence. 5. The Commonwealth does not own or operate any prisons and federal prisoners are currently housed in state and territory prisons. Convicted federal offenders comprise approximately 3 percent of Australia's total prison population while convicted federal sex offenders comprise only 0.4 percent of that population. As such, the overall financial impact 3

on states and territories will be negligible. There will be some increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences, these costs will be absorbed. 4

STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 CRIMES LEGISLATION AMENDMENT (SEXUAL CRIMES AGAINST CHILDREN AND COMMUNITY PROTECTION MEASURES) BILL 2017 6. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill 7. This Bill is designed to protect the rights of children, in particular the right of children to be protected from sexual abuse. The measures adopted in the Bill are both proportionate and appropriate to address the risks faced by children. Human rights implications 8. The human rights and freedoms engaged by the Bill fall under the following conventions that Australia is a State Party to:  Convention on the Rights of the Child [1991] ATS 4 (CRC);  Convention on the Elimination of All Forms of Discrimination against Women [1983] ATS 9 (CEDAW); and  International Covenant on Civil and Political Rights [1976] ATS 5 (ICCPR). 9. The measures in the Bill promote the principles underpinning, and the fundamental rights and freedoms protected by, the CRC including:  the best interests of the child as a primary consideration (Article 3);  the right of the child to be protected from all forms of physical and mental violence, including sexual abuse (Articles 19 and 34);  the right of a child to be heard in judicial proceedings (Article 12); and  the right of the child not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37). 10. The Bill also advances measures that State Parties have undertaken to implement under the OPSC, which elaborates on Article 34 of the CRC including:  criminalising the offering, delivering or accepting a child for sexual exploitation, and distributing, disseminating, offering, selling or possessing child pornography (Article 3(1));  making child exploitation offences punishable by appropriate penalties that take into account their grave nature (Article 3(3)); 5

 protecting the rights and interests of child victims at all stages of the criminal justice process, including adopting procedures to recognise their special needs as victims (Article 8); and  strengthening laws to prevent child sexual exploitation offences (Article 9). 11. The Bill also advances Article 6 of the CEDAW which provides that States Parties shall take all appropriate measures to suppress all forms of trafficking in women. 12. The measures in the Bill may engage the following ICCPR rights:  right to liberty and freedom from arbitrary detention and the prohibition against a general rule that persons awaiting trial be detained in custody (Article 9);  that penitentiary systems shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation (Article 10(3));  right to liberty of movement and freedom to choose one's residence (Article 12(1));  right to a fair hearing in a suit of law (Article 14(1));  right to protection against arbitrary and unlawful interferences with privacy (Article 17(1));  right to the presumption of innocence (Article 18(2)); and  freedom of expression (Article 19(2)). The best interests of the child (Article 3 CRC) 13. Article 3 of the CRC provides that States Parties shall make the best interests of the child a primary consideration in all actions concerning children, including by courts of law, administrative authorities and legislative bodies. States Parties must ensure the child has such protection and care as is necessary for his or her well-being. 14. Consistent with the CRC, this Bill gives primary consideration to the best interests of the child through amendments to the legal framework applicable to Commonwealth child sex offenders. The legislation is intended to protect children from sexual abuse through various measures to prevent and deter the perpetration of child sex offences, and to improve the justice outcomes for survivors of child sexual abuse. Right of the child to be protected from sexual abuse (Articles 19 and 34 CRC) 15. Article 19 of the CRC provides that: States Parties shall take all appropriate legislative ... measures to protect the child from all forms of physical or mental violence, injury or abuse, ... including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has care of the child. 16. Article 34 similarly provides that "State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse", including taking all appropriate measures to prevent "the exploitative use of children in pornographic performances and materials". 6

17. Numerous provisions of the Bill provide measures to protect children from sexual abuse, including:  the insertion of a presumption against bail for the most serious Commonwealth child sexual offences;  the requirement for Commonwealth child sex offenders released into the community on recognisance orders to be placed under supervision conditions; and  provisions which make it easier for a Commonwealth child sex offender's parole to be revoked if they pose a danger to the community. 18. In addition, this Bill promotes Articles 19 and 34 of the CRC by increasing the general and specific deterrence for committing child sex offences, and ensuring that penalties for these offences more appropriately reflect the gravity of child sexual abuse. This is achieved through various measures, including:  the creation of new offences that criminalise emerging forms of child sexual abuse;  the mandatory sentencing regime;  the increase in maximum penalties for certain offences; and  reducing the amount of 'clean street time' that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and licence. Criminalisation of child sex abuse 19. Article 3(1) of the OPSC expands on the fundamental rights in the CRC by requiring that certain forms of child sex abuse be fully covered under criminal law. The Bill advances these Articles by introducing new offences which criminalise emerging forms of child sexual abuse. The new offence for facilitating online dealings in child abuse material criminalises new ways that child sex offenders are utilising technology to perpetrate offences. These amendments are necessary to ensure that the criminal law remains abreast of technological advances and to ensure that child sexual abuse is fully criminalised. Ensuring appropriate penalties for child sex offences 20. Similarly, Article 3(1) of the OPSC supports the CRC by providing that State Parties must make offences mentioned in the protocol "punishable by appropriate penalties that take into account their grave nature". The Bill advances this Article by increasing the maximum penalties for certain child sex offences and by instituting mandatory minimum sentences for child sex offenders. These amendments address the disparity between the seriousness of child sex offending and the sentences currently handed down by the courts. 21. The Commonwealth Director of Public Prosecutions currently appeals a high number of child sex offending cases due to manifestly inadequate sentences imposed by judges at first instance and for repeat offenders. The online sexual predation and abuse of children is also a matter of considerable concern to the community, and the amended penalties aim to more adequately reflect the serious nature of such online behaviour. 7

22. Manifestly inadequate sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children 23. Mandatory minimum sentences reflect the seriousness of child sexual abuse, including the significant harm suffered by victims. They keep offenders out of the community where they may further offend against children and may also deter others from engaging in such behaviour. Protecting the rights and interests of child victims in the criminal justice system 24. Article 8(1)(a) of the OPSC also promotes Article 34 of the CRC by stating that: States Parties shall adopt appropriate measure to protect the rights and interests of child victims ... at all stages of the criminal justice process, in particular by ... [r]ecognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their specific needs as witnesses. 25. The Bill promotes this by removing the requirement in the Crimes Act that the prosecution seek the leave of the Court before a video recording of a person can be admitted as evidence in chief of a vulnerable witness. This amendment promotes the interests of child victims of sexual offences and other crimes, and is an appropriate adaptation of criminal justice procedures to their special needs. Using pre-recorded evidence assists child victims to give evidence by reducing the stress of giving evidence for long periods, and improving the quality of their evidence. 26. This amendment also applies more broadly to vulnerable adult complainants, namely victims of slavery, trafficking and debt bondage offences. To the extent that this amendment improves the ability of the Commonwealth Director of Public Prosecutions to effectively prosecute these offences, this amendment also advances Article 6 of the CEDAW. This Article provides that States Parties shall take appropriate measures to "suppress all forms of traffic[king] in women". Right of the child not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37 CRC) 27. Article 37 of the CRC provides that States Parties shall ensure that "[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment". 28. This Bill promotes these articles through the creation of a new offence that criminalises the creation, maintenance, control or moderation of an electronic service to facilitate dealings with child abuse material, and through the creation of an aggravated offence relating to cruel, inhuman or degrading treatment in connection with sexual abuse. Child abuse material includes material that depicts a child who is a victim of torture, cruelty or physical abuse. Providing electronic services for child abuse material can result in the establishment of sophisticated criminal networks which perpetuate the demand for existing and new child abuse material. Criminalising this behaviour is therefore essential to the protection of children from torture as required under the CRC. 29. In addition, the Bill introduces mandatory minimum sentences for some Commonwealth child sex offences. This is intended to have a deterrent effect and enhance the protection of children from torture. 8

Right to liberty 30. The Bill engages Article 9(1) of the ICCPR which states that: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 31. A number of measures in the Bill may engage child sex offenders' right to liberty, namely:  the mandatory minimum sentencing scheme;  the increase in maximum penalties for certain Commonwealth child sex offences;  the presumption against bail;  the presumption in favour of an actual term of imprisonment for Commonwealth child sex offenders;  the power to revoke parole without notice if there are community safety concerns;  reducing the amount of 'clean street time' that can be credited by a court as time served against the outstanding sentence following commission of an offence by a person on parole and licence; and  the requirement that a period of time be served in custody for breach of parole or licence. 32. None of these amendments represent an infringement of the prohibition on arbitrary arrest and detention. While they may have the effect of increasing the length of time that offenders spend in custody, the grounds for this are prescribed by law, and only take effect following valid and lawful arrest and/or conviction for criminal offences. 33. Limitations on the right to liberty are permissible if in accordance with procedure established by law, and if the limitation is reasonable, necessary and proportionate. All the above mentioned amendments provide for an individual to be detained according to procedures established by this Bill. 34. The amendments are reasonable, necessary and proportionate:  The power to revoke a parole order or licence without notice if there are community safety concerns is necessary to protect the community from offenders who are likely to reoffend. Currently, even when there are serious concerns for community safety, offenders must be given notice before their parole or licence can be revoked. This means that such persons are given the opportunity to reoffend or to abscond as they know that they may be taken back into custody. This amendment is reasonable and proportionate as it only removes the notice requirement where doing so is necessary 'in the interests of ensuring the safety and protection of the community or of another person'. The amendment hence appropriately balances offenders' right to liberty with the primary right of children under the CRC to be protected from sexual abuse. 9

 The mandatory minimum sentencing scheme and increase in maximum penalties are reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for Commonwealth child sex offenders that reflect the gravity of these offences and ensure that the community is protected from child sex offenders. Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children. These amendments are reasonable given that the penalties will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures established by law. The amendments are proportionate as they are tailored to the seriousness of various child sex offences, with mandatory minimum penalties only applying to first time offenders for the most serious child sex offences. The mandatory minimum scheme will apply to child sex offences that attract lower maximum penalties where the offender has been previously convicted of another child sex offence. The increases in maximum penalties are necessary to reflect the seriousness of these behaviours. Furthermore, the mandatory minimum scheme will not apply if it is established on the balance of probabilities that the person convicted of the relevant offence was aged under 18 years when the offence was committed. Both the mandatory sentencing scheme and the increase in maximum penalties are proportionate because they only relate to the length of the head sentence, not the term of actual imprisonment that an offender will serve. Courts will retain discretion as to any term of actual imprisonment, and will retain access to sentencing alternatives that may be appropriate, for example where an offender has an intellectual disability that makes imprisonment inappropriate.  The presumption against bail aims to achieve the necessary and legitimate objective of community protection from Commonwealth child sex offenders whilst they are awaiting trial or sentencing. Commonwealth child sex offences involve offences where an element of the offence is external to Australia or where a postal or carriage service is involved. Given the proliferation of different types of online child sexual abuse and communication technologies allowing for obfuscation of online criminal conduct (e.g. encryption and virtual private networks), it is particularly important to ensure that any risk is mitigated through appropriate conditions. Where conditions cannot mitigate the risk to the community, witnesses, and victims, bail should not be granted. This measure is reasonable and proportionate as it provides the courts with a starting point of a presumption against bail for the most serious child sex offences, and where child sex offences would attract a minimum penalty on a second or subsequent offence. The presumption is rebuttable and provides judicial discretion as to determining whether a persons' risk on bail can be mitigated through appropriate conditions and ultimately to grant bail as a consequence. It further balances the rights of Commonwealth child sex offenders with the paramount right of a child to be protected from physical and sexual abuse. 10

 The presumption in favour of a term of actual imprisonment is similarly reasonable and necessary to achieve the legitimate objective of ensuring that the courts are handing down sentences for child sex offenders that reflect the gravity of these offences, and to ensure that the community is protected from child sex offenders. The presumption is proportionate to this aim because it only applies to child sex offenders who might otherwise be released on recognizance orders. Furthermore, the court has discretion as to how long the term of imprisonment should be.  An offender who is released on parole is allowed to serve the remainder of their sentence in the community. Committing an offence while on parole or licence results in its revocation if the new sentence is more than 3 months imprisonment. Reducing the amount of 'clean street time' that can be credited by a court as time served against the outstanding sentence ensures that offenders can only receive credit for good behaviour and is necessary to prevent offenders from attempting to circumvent the legal consequences of reoffending. The amendment is reasonable and proportionate as although a person may be released into the community on parole or licence, they remain under sentence. It still enables the court to reward good behaviour but ensures that the 'clean street time' period does not extend beyond that.  The requirement for a period of time to be served in custody for breach of parole is necessary to ensure that both courts and offenders view parole conditions as serious and to ensure that parolees behave in an appropriate manner while on parole. The amendment is reasonable and proportionate because it only applies where the breach is deemed to be of sufficient seriousness to warrant further imprisonment. Given that release to parole is a privilege and not a right, it is reasonable that a parolee be returned to prison if they abuse this privilege by failing to comply with parole conditions. Prohibition against a general rule that persons awaiting trial be detained in custody 35. Article 9(3) of the ICCPR provides that: "[i]t shall not be the general rule that persons awaiting trial shall be detained in custody". This right may be impacted by the presumption created in this Bill against granting bail for those charged or convicted of Commonwealth child sex offences. Limiting this right is permissible if it aims to achieve a legitimate objective, and is reasonable, necessary and proportionate. 36. The presumption against bail measure aims to protect the community from child sex offenders while they are awaiting trial or sentencing. The arguments put forward in paragraph 34 are reiterated here. The use of communication technologies for this crime type in proliferating child sexual abuse and protecting the person's identity while perpetrating the crime is well known and provides significant difficulties to law enforcement not only in investigating the crimes in the first instance but also for the enforcement of bail conditions. Accordingly, the presumption is a necessary, reasonable and proportionate measure to ensure the broader safety of one of Australia's most vulnerable groups, children. Reformation and social rehabilitation in penitentiary systems 37. Article 10(3) of the ICCPR provides that "[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social 11

rehabilitation". This Bill promotes this right as it provides for the objective of rehabilitation of child sex offenders to be a mandatory consideration in sentencing. 38. The amendment promotes the intention of this article by requiring courts sentencing child sex offenders to consider whether it is appropriate to impose conditions about rehabilitation or treatment, and to also consider whether the sentence or order provides sufficient time for the person to undertake a rehabilitation program while in custody. Right to liberty of movement and freedom to choose one's residence 39. Article 12(1) of the ICCPR provides that "[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence". This right may be engaged by the amendment which provides that child sex offenders released on recognisance orders must be subject to supervision orders. This provision may result in conditions being set that affect an offender's movement or the location of their residence. 40. However, Article 12(3) provides that this right may be subject to restrictions provided by laws that "are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others". This amendment is therefore permissible because it restricts the right by operation of law, and is necessary to protect public morals and the rights and freedoms of children. Supervision conditions are also important to ensuring that child sex offenders are able to transition into the community and will reduce the likelihood of reoffending. Right to a fair hearing in a suit of law 41. Article 14(1) of the ICCPR provides that "[i]n the determination of ... rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing". To the extent that an individual's right to seek judicial review of a decision relating to their parole might be seen to constitute a "suit at law", this Bill may engage the right to a fair hearing in a suit at law through:  the restriction on information provided to offenders; and  the power to revoke parole without notice on community safety grounds. 42. The restriction on information provided to offenders affects offenders' right to procedural fairness as they will not be given the right to respond to all adverse information provided in relation to them. However this measure is necessary to protect confidential information, such as intelligence information, that would prejudice national security if it was disclosed to the offender or others. The restriction is reasonable and proportionate because it applies only if the Attorney-General is satisfied that disclosure of the information would be likely to prejudice national security. This is a sufficiently high bar to make it proportionate. 43. As noted above, the power to revoke parole without notice on community safety grounds is reasonable and proportionate as it only removes the notice requirement where doing so is necessary "in the interests of ensuring the safety and protection of the community or of another person". The amendment hence appropriately balances offenders' right to liberty with the primary right of children under the CRC to be protected from sexual abuse. 12

44. In addition, article 14(3)(e) provides that everyone has the right to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them. 45. Schedule 2 broadly engages Article 14 and specifically Article 14(3)(e) of the ICCPR by outlining the conditions by which a video recording of an interview with a vulnerable person can be admitted as evidence in chief in Commonwealth criminal proceedings. In this context, Schedule 2 limits the right of everyone to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as the witnesses against them. 46. While the principle of open justice is fundamental, it is well established that the right of the public to open justice must be balanced against the right of participants in the criminal justice system to safety and protection from undue distress or public embarrassment. 47. In light of the vulnerabilities of child witnesses (especially in the context of child sexual abuse offences) and vulnerable adult complainants (especially in the context of human trafficking and slavery-related offences), it is appropriate to enable the use of video recordings of interviews to be admitted as evidence in chief. Such a provision ensures that vulnerable individuals are only required to give potentially traumatising evidence once. Indeed, this provision seeks to limit the risk of re-traumatisation of vulnerable individuals participating in the criminal justice process. 48. Except as specified, the proposed protections will not affect the general power of a court to control the conduct of a proceeding, including the power of the court to control the questioning of witnesses. Specifically, the Bill will not limit the ability of the defendant`s legal representative to test evidence put before the court, including through the cross- examination of witnesses at trial. Further, the decision of the court, and any material on which the court makes its decision (that is not the subject of a suppression order), will generally be publicly available and subject to public and media scrutiny. 49. On this basis, Schedule 2 of the Bill serves the legitimate objective of seeking to limit the trauma and risk of re-traumatisation of vulnerable individuals that participation in the criminal justice process may present. Any limitation on open justice is reasonable, necessary and proportionate to achieving this objective. Right to protection against arbitrary and unlawful interferences with privacy 50. Article 17(1) of the ICCPR recognises the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence. Article 17(2) of the ICCPR recognises the right of everyone to the protection of the law against such interference. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, for a reason consistent with the ICCPR, and reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case. 51. The new offences in this Bill will be included in the list of sexual offences against children to be considered serious offences for the purposes of the TIA Act and will apply Part IE of the Crimes Act (Forfeiture of child pornography material and child abuse material) to the offences. 13

52. Consequential amendments categorise the new offences as 'serious offences' under the TIA Act. The TIA Act sets out conditions that must be met before a law enforcement agency can intercept or access telecommunications for the purposes of investigating the new offence. As a general rule, lawfully intercepted information or interception warrant information can only be authorised if the investigation or proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7 years or more. The TIA Act prohibits law enforcement agencies from intercepting telecommunications, or making historical or prospective authorisations to access stored communications, unless an appropriate warrant is in force. Requirements under the TIA Act ensure that interference with the privacy of any person or persons that may result from intercepting or accessing telecommunications data is one of a range of considerations taken into account when issuing a warrant. To the extent that the issuing of a warrant itself entails a limitation on the right to privacy that limitation is reasonable, necessary and proportionate. 53. Consequential amendments will include the new offences in the definition of Commonwealth child sex offence for the purposes of the Crimes Act. Part IE of the Crimes Act applies to Commonwealth child sex offences. Part IE contains a specific Commonwealth scheme for the forfeiture of child pornography and child abuse material. The scheme applies to an item that is either child pornography material or child abuse material, or a computer, data storage device or other electronic equipment that contains child abuse material or child pornography material. An item will become forfeitable if a law enforcement officer believes it was derived from, or used in connection with, the commission of a Commonwealth child sex offence. 54. In this case, the legitimate end is public safety, addressing crime and protecting the rights and freedoms of children. To the extent that the right to privacy is impinged, the interference is a proportional response to a pressing social need, that is, the need for law enforcement agencies to effectively investigate and prosecute crime. Right to the presumption of innocence 55. Article 14(2) of the ICCPR states that those charged with criminal offences have the right to be presumed innocent until proved guilty. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. 56. The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offences in section 474.27AA (using a carriage service to groom a third party), section 474.23A (electronic services), and the new aggravated offences in section 272.10 and 474.25B. The presumption in section 475.1B provides that if a physical element of the offence 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 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. 57. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records 14

show the computer accessed particular websites that suggest an association with the material saved on the hard drive. 58. The Bill relies on the Commonwealth's telecommunications power under the Australian Constitution. Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using 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 than those that do not. 59. Given the objective of the presumption in the Criminal Code, it is not that this would be applied to the new carriage service offences and maintains the rights of the defendant. Accordingly, the Bill does not violate the presumption of innocence. Freedom of expression 60. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person's choice. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime) where such restrictions are provided by law and are necessary for attaining one of these purposes. The requirement of necessity implies that any restriction must be proportional in severity and intensity to the purpose sought to be achieved. Limitations on freedom of expression on the grounds of public order include limitations for the purpose of preventing crime. In order for the proposed laws to be considered a necessary restriction on freedom of expression on the grounds of public order, the restriction must be clearly defined. 61. The Bill engages the right to freedom of expression in Article 19 to the extent that it creates new offences that criminalise the use of carriage and postal services to "groom" third parties; the use of carriage services to engage in aggravated child sexual abuse; and the creation, maintenance, control or moderation of electronic services to facilitate access to child abuse material. These new offences may have an impact on the use of carriage services to seek, receive and impart information. 62. To the extent that the right to freedom of expression by these offences, these restrictions are provided by law and are necessary to prevent and criminalise emerging forms of child sexual abuse. The offences are reasonable and proportionate as they only criminalise reprehensible behaviour which facilitates or perpetuates child sexual abuse. 63. The Bill also promotes the right to freedom of expression of children by further protecting their right to seek, receive and impart information using a carriage service, free from the threat of harm and sexual abuse. Conclusion 64. This Bill is compatible with human rights as it promotes and advances human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to protect children at risk of sexual abuse. 15

NOTES ON CLAUSES Preliminary Clause 1 - Short title 1. This clause provides for the short title of the Act to be the Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2017. Clause 2 - Commencement 2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that sections 1 and 2 which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives Royal Assent. Clause 3 - Schedules 3. This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule and that any other item in the Schedule has effect according to its terms. 16

Schedule 1 -Revocation of parole order or licence to protect safety Crimes Act 1914 Item 1 - After paragraph 19AU(3)(b) 4. Section 19AU of the Crimes Act outlines when the Attorney-General can revoke a parole order or licence and the procedures that must be followed when doing so. Currently, unless certain circumstances apply, before revoking a parole order or licence, a person must be notified of the specific conditions of the order or licence that they are alleged to have breached and given 14 days to respond. 5. This item amends section 19AU(3) to provide that a federal offender's parole or licence may be revoked without notice if doing so is necessary to ensure the safety and protection of the community or of another person. 6. Including this in the current list of exceptions will ensure that if the Attorney-General or their delegate becomes aware that a person who has been released into the community on parole or licence poses a threat to the safety of the community or to another person, that person can be taken into custody immediately. 7. Importantly, the person is still afforded procedural fairness as they retain the opportunity under section 19AX of the Crimes Act to make a written submission to the Attorney-General as to why the parole order should not be revoked. However, during this time the person will be remanded in custody, where they cannot cause harm. If, after considering the person's submission, the Attorney-General decides not to rescind the revocation order he or she would be immediately released from prison. Item 2 - Application provision 8. This item provides that the amendment in item 1 applies to a revocation made on or after commencement of the Bill, regardless of when the parole order was made or licence was granted. Schedule 2--Use of video recordings Crimes Act 1914 9. Schedule 2 will strengthen the protections in Part IAD of the Crimes Act for vulnerable witnesses (such as children) who give evidence in particular criminal proceedings, including for Commonwealth child sex offences and human trafficking and slavery offences. 10. Under the existing section 15YM, the leave of the court is required before a video recording of a person may be admitted as evidence in chief for a vulnerable witness. The video recorded interview must be conducted by a constable or other specified person. Currently, the court must not give leave unless it is satisfied that it is not in the interests of justice for video recorded evidence in chief to be given. 17

11. If contested by the defence, the requirement to seek leave in section 15YM may have an adverse effect on the vulnerable witness and is contrary to the intent of the vulnerable witness protections more broadly. 12. Accordingly, these provisions remove the requirement for the court to grant leave before admitting a video recording of an interview of a vulnerable person as evidence in chief. The recorded interview will still need to be conducted by a constable or a specified person. 13. The evidence in chief interviews remain subject to the rules of evidence and parts may be ruled inadmissible, thereby protecting the rights of the accused person. There are sufficient safeguards in place that the defence will not be unreasonably disadvantaged by removing the requirement in 15YM to seek leave. On balance, any disadvantages to the defence are outweighed by the uncertainty, delay and inefficiency caused by the requirement to seek leave. 14. Removing the requirement to seek leave also brings the Commonwealth's vulnerable witness protections into line with the approach taken by states and territories. Item 1 -Subsection 15YM(1) 15. Item 1 repeals the current subsection 15YM(1) and substitutes a new subsection which allows for evidence in chief of a vulnerable witness to be admitted as evidence in chief if a specified person conducted their interview. Item 2 -Subsections 15YM(2) and (3) 16. Item 2 repeals subsections (2) and (3) which will no longer be required as the court will not need to hear submissions for leave to be granted. Item 3 - Application and Saving Provisions 17. Sub-item 1 ensures that the amendments made by this schedule only apply to proceedings begun on or after the commencement of the Bill. 18. Sub-item 2 ensures that any regulations made for the purposes of paragraph 15YM(1)(a) of the Crimes Act prior to introduction and commencement of this Bill will continue to have effect. Schedule 3--Cross-examination of vulnerable persons at committal proceedings Crimes Act 1914 19. The Bill removes the requirement for vulnerable witnesses to be available to give evidence at committal proceedings. There is currently no restriction on cross-examination of vulnerable witnesses at committal proceedings (or proceedings of a similar kind) and few restrictions on the scope of questioning permitted in committal proceedings under Part IAD of the Crimes Act. 18

20. Presently, prohibitions on the scope of the cross-examination of a vulnerable witness appear in sections 15YB and 15YC of the Crimes Act. These provisions provide that evidence of the reputation or experience with respect to sexual activities of a child witness or child complainant is prima facie inadmissible. However, the accused's legal representatives can seek leave, for defined reasons, to cross-examine on these subjects. The ability to seek leave is not restricted to evidence at trial - it includes committal proceedings or proceedings of a similar kind. This restriction does not apply to vulnerable adult complainants, who have other protections in Part IAD. 21. By prohibiting cross-examination at committal proceedings or proceedings of a similar kind, vulnerable witnesses will be spared an additional risk of re-traumatisation. Presently, vulnerable witnesses may have to give evidence twice and often in distressing, combative environments. It will also help streamline criminal justice processes by ensuring lengthy cross-examination is reserved for trials and not committal proceedings or proceedings of a similar kind. It will also bring the Commonwealth broadly into line with practice in other Australian states and territories. Item 1 - After paragraph 15YAB(3)(b) 22. Item 1 inserts a new subparagraph 15YAB(3)(ba) which incorporates the new section 15YHA (about cross-examination at committal proceedings) as a section the court may order to apply to a special witness. Item 2 - At the end of subsection 15YF(1) 23. Item 2 inserts a note directing the reader to 15YHA, see item 5 (at the end of Division 3 of Part IAD). Item 3 - At the end of subsection 15YG(1) 24. Item 3 inserts a note directing the reader to 15YHA, see item 5 (at the end of Division 3 of Part IAD). Item 4 - At the end of subsection 15YH(1) 25. Item 4 inserts a note directing the reader to 15YHA, see item 5 (at the end of Division 3 of Part IAD). Item 5 - At the end of Division 3 of Part IAD 26. Item 5 inserts a new section 15YHA which provides that specified persons are not to be cross-examined at committal proceedings or proceedings of a similar kind. Item 6 - Subsection 15YM(4) 27. Item 6 inserts into subsection 15YM(4) the requirement, that a person who is required to be available for cross-examination and re-examination if that person gives evidence in chief by video recording, be subject to the provisions in Division 3 of Part IAD. Item 7 - Subsection 15YM(4) (note) 28. Item 7 renumbers the note as 'note 1'. 19

Item 8 - At the end of subsection 15YM(4) 29. Item 8 inserts a new 'Note 2' which flags the effect Division 3 will have on section 15YM. Item 9 - Application provision 30. Item 9 ensures that the amendments made by this schedule only apply to proceedings begun on or after the commencement of the Bill. Schedule 4--Strengthening child sexual abuse offences Criminal Code Act 1995 Item 1 - After subsection 272.9(1) of the Criminal Code (before the penalty) 31. Item 1 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity. Item 2 - Section 272.10 of the Criminal Code (heading) 32. Item 2 repeals and substitutes the heading of the aggravated offence to cover sexual intercourse or other sexual activity with a child outside Australia. Item 3 - Paragraph 272.10(1)(b) of the Criminal Code 33. Item 3 introduces new aggravated offences that apply to the underlying offences of sexual intercourse with a child outside Australia (section 272.8) and engaging in sexual activity with a child outside Australia (section 272.9). The item repeals existing paragraph 272.10(1)(b) and replaces it with new paragraph (b). 34. Section 272.10 criminalises a range of activities that aggravate the offences in sections 272.8 and 272.9 of the Criminal Code. Under new paragraph (b), it will be an aggravated offence for a person to commit an offence against sections 272.8 and 272.9 where:  the child has a mental impairment (existing subparagraph 272.10(1)(b)(i));  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 (existing subparagraph 272.10(1)(b)(ii));  the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 272.10(1)(b)(iii)); or  the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 272.10(1)(b)(iv)). 20

35. The new aggravated offences in subparagraphs 272.10(1)(b)(iii) and 272.10(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. These offences warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability. 36. Subparagraph 272.10(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual intercourse or activity referred to in sections 272.8 or 272.9 (the underlying offences). This may include, for example, where the offender causes the child to be unconscious when committing the underlying offences or causes the child to be disfigured or dismembered. 37. Subparagraph 272.10(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in the underlying offences. 'Physical harm' is limited to the definition of 'physical harm' in the Criminal Code, which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances. 38. The inclusion of the reference to 'in connection with' is intended to cover cruel, inhuman or degrading treatment that occurs both before and / or after the underlying offences, and that is directly linked to the underlying offences. 39. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a result. Under section 5.4 of the Criminal Code, a person is 'reckless' with respect to a result if he or she is aware of a substantial risk that the result will occur, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 40. Accordingly, to establish an offence under subparagraph 272.10(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:  the person committed the underlying offence, and  the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and  the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and  having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity. 41. To establish an offence under subparagraph 272.10(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:  the person committed the underlying offence, and 21

 the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and  the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and  having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity. 42. These new aggravated offences will be punishable by a maximum penalty of 25 years imprisonment, consistent with the existing aggravated offences for sexual activity where the child has a mental impairment or the person is in a position of trust or authority in relation to the child. This penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity. Item 4 - After subsection 272.13(1) of the Criminal Code (before the penalty) 43. Item 4 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity. Item 5 - Section 471.25A of the Criminal Code 44. Item 5 inserts a new section 471.25A into the Criminal Code. This item inserts a new offence criminalising using postal or similar services to "groom" another person to make it easier to procure persons under 16 years of age for sexual activity. 45. New section 471.25A complements the existing procurement and "grooming" offences set out in sections 471.24 and 474.25 of the Criminal Code. Proposed section 471.25A contains three separate offences for the "grooming" of third parties. 46. The proposed offence in subsection 471.25A(1) will address "grooming" where an adult (sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for the sender to engage in sexual activity with a specific child. The sender must be at least 18 years of age, and the child must be (or the sender believed them to be) under 16 years of age. 47. The proposed offence in subsection 471.25A(2) will address "grooming" where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child. The participant must be (or the sender believed them to be) at least 18 years of age. The child must be (or the sender believed them to be) under 16 years of age. 48. The proposed offence in subsection 471.25A(3) will address "grooming" where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child, where the sexual activity is to take place in the presence of the sender or another person. 22

49. The reference to "engage in sexual activity" in subparagraphs 471.25A(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in "real life". The definition of "engage in sexual activity" extends to an act that does not necessarily require physical contact. "Engage in sexual activity" also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity. 50. The reference to "procure" in paragraphs 471.25A(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. "Procure" is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in "consensual" sexual activity but also includes conduct where a sender may coerce a person into engaging in "non-consensual" activity. 51. Paragraphs 471.25A(1)(c) and (2)(c), and subparagraph (3)(d)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions. 52. The proposed maximum penalty is imprisonment for 15 years for each offence under section 471.25A. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences of procurement (imprisonment 15 years) and "grooming" (imprisonment 15 years) that will be increased in Part 10.5 of the Criminal Code under items 10 and 11 in Schedule 5 of this Bill. The proposed maximum penalty of 15 years' imprisonment is consistent with the serious nature of this type of offending behaviour. 'Grooming' can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the object of the 'grooming' behaviour. The maximum penalty recognises the harm done to the victims of this offence. 53. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 471.25A. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia. 54. It will be a defence to a prosecution under this new offence if the defendant can prove that, at the time the article was carried via a postal or similar service, he or she believed that the recipient was at least 16 years of age. This ensures that the new offence only targets persons trying to make it easier to engage in sexual activity with a child under the age of 16. Item 6 - Section 471.27(1) of the Criminal Code 55. This item amends the existing subsection 471.27(1) of the Criminal Code to include after "subdivision", insert "(other than section 471.25A)". The application of absolute liability will not apply to existing subsection 471.27(1). 23

Item 7 - Section 471.27(1A) of the Criminal Code 56. This item introduces an additional subsection to section 471.27 (age-related provisions relating to offences against this subdivision) for the application of absolute liability to the physical element of a recipient being under 16 years of age. This means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to that element. The impact of imposing absolute liability is balanced through the specific defence based on belief about age available under existing section 471.29. This approach is consistent with existing "grooming" offences within the Criminal Code. Item 8 - Section 471.27(2) of the Criminal Code 57. This item includes new postal or similar service offences for the "grooming" of third parties under the existing absolute liability provisions concerning the age of the participant. Item 9 - Subsections 471.27(3) and (4) of the Criminal Code 58. This item repeals the current subsections and substitutes a provision which combines those subsections. This provision, as much as its predecessor, impacts upon the evidentiary requirement to prove the sender's belief about the age of the person or, if relevant, the age of the other person who is to engage in sexual activity with the recipient, or is to be present during the sexual activity. As with the existing "grooming" provisions, ordinarily this could be a significant burden of proof for the prosecution to overcome. Accordingly, this provision in its redrafted form ensures that the prosecution can rely on representations made to a defendant (e.g. written exchanges from the recipient) relating to the age of the recipient or other person in discharging that burden. It is also intended that a defendant can introduce evidence that contradicts these types of representations made by the prosecution. Item 10 - Subsection 471.28(1) of the Criminal Code 59. This item ensures a person may be found guilty of an offence for the "grooming" of third parties even if it is impossible for the sexual activity referred to in section 471.25A to have occurred. Items 11 and 12 - Subsection 471.28(2) of the Criminal Code 60. Item 11 amends the heading of subsection 471.28(2) of the Criminal Code by repealing the heading and replacing it with a new heading: 'Fictitious persons'. This amendment is consequential to item 12 which inserts a new subsection 471.28(2A) into the Criminal Code after subsection 471.28(2). New subsection 471.28(2A) makes it irrelevant for the purposes of an offence under 471.25A whether a fictitious person is represented to the sender as a real person. This item expands the heading from 'Fictitious recipient' to 'fictitious persons' to reflect that subsections 471.28(2) and 471.28(2A) together refer to fictitious persons who may not exclusively be recipients. 61. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement agent assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child. 24

62. Item 12 applies subsection 471.28(2) to the operation of the offence for 'grooming' of third parties under section 471.25A. Subsection 471.28(2) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 5 which inserts a new offence for 'grooming' of third parties into the Criminal Code. Item 13 - Subsection 471.28(3) of the Criminal Code 63. This item applies subsection 471.28(3) to the offence for 'grooming' of third parties under section 471.25A. Section 471.28(3) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code. This amendment is consequential to item 5 which inserts a new offence for 'grooming' of third parties into the Criminal Code. Items 14, 15 and 16 - Subsection 471.29(1) of the Criminal Code 64. These items clarify that it is a defence to a prosecution for an offence against proposed section 471.25A if the defendant proves that, at the time he or she caused the article to be carried, the defendant was of the belief that the child was at least 16 years of age. This ensures that the new offence for the "grooming" of third parties only targets predators who are trying to make it easier to engage in sexual activity with a child under the age of 16. 65. The defendant will bear the legal burden of introducing evidence which supports this defence. It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defence applies do in fact exist. This is especially the case where it may relate to circumstances that must be proven are particularly within the knowledge of the person concerned. Items 17 and 18 - Subsection 471.29(2) of the Criminal Code 66. These items ensure that the existing defence under subsection 471.29(2) of the Criminal Code applies. That defence concerns the belief that the participant was under 18 years of age when the person caused the article to be carried. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 5 which inserts a new offence for 'grooming' of third parties into the Criminal Code. 67. The defendant will bear a legal burden in establishing these defences and 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 defences relate to a matter that is within the defendant's knowledge and not available to the prosecution. Item 19 - Subsection 471.29(3) of the Criminal Code 68. This item will ensure 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 child was 16 or older at the time of the offence where there is no reasonable basis for that belief. 25

Item 20 - Section 474.23A of the Criminal Code (conduct for the purposes of electronic service used for child abuse material) 69. Item 20 will insert new section 474.23A to criminalise the provision of an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code. 70. The new offence will help to address the ever increasing role played by electronic services (such as online fora, websites and other storage and exchange platforms) in enabling the exchange of child abuse material. These services, which are often hosted on the Dark Web, are particularly abhorrent as they facilitate the offending of a large, sometimes global, audience and promote the production of new child abuse material. In particular, there has been a rise in the number of websites that function for the sole purpose of facilitating the online distribution of child abuse material and encouraging discussion about child sexual abuse amongst its members. 71. The consequences of providing these electronic services cannot be overstated. This behaviour results in the establishment of sophisticated, elaborate and global criminal networks which perpetuate the demand for new and existing child abuse material. The electronic services often take advantage of anonymising and encrypting technology, giving criminals a safe online environment to access and share child abuse material and to reinforce and enable their offending behaviours. 72. This offence will also address a gap in the law which means that individuals cannot be prosecuted for the provision of electronic services to facilitate dealings with child abuse material unless it can be proven that they are also accessing child abuse material or encouraging others to do so. Where this cannot be proven, there is limited criminal recourse against the individual. 73. New section 474.23A inserts a definition of electronic service into the Criminal Code. An electronic service means a service a purpose of which is to allow persons access to, or deliver, material by way of a carriage service. The reference to persons in the definition is read in accordance with paragraph 23(b) of the Acts Interpretation Act 1901 to also include a person in the singular. This definition is purposefully broad to capture a range of existing and future technologies, including hardware and software, which may be used by offenders to commit these crimes. Examples of electronic services include websites and chat fora, hosting services including cloud and web hosting, peer to peer sharing platforms and email distribution lists, as well as many others. 74. The offence does not require the offender to undertake conduct in relation to the electronic service using a carriage service. Instead, the definition of electronic service provides that the service in question must be able to be accessed or used to deliver content by means of a carriage service, whether at the time of the offending or in the future. This relates to the offender's intention that the electronic service will be used (by the offender or another person) to facilitate an offence contrary to sections 474.22 or 474.23, both of which include an element of undertaking the criminal behaviour using a carriage service. 75. The purposive definition of electronic service means that the service does not need to be operational or "live" at the time the offending takes place. Similarly, an offender may be 26

found guilty of the offence even if committing an offence against sections 474.22 or 474.23 is impossible for any reason. Together, these factors ensure that the offence applies to a wide range of factual circumstances and allows law enforcement to intervene at an early stage in the offending timeline. The application of the definition for electronic service will mean that the presumption and absolute liability provisions in section 475.1B relating to the physical element of use of a carriage service are unnecessary in the context of the new offence and do not apply. 76. The inclusion of the carriage service requirement in the definition of electronic service provides the nexus between the new offence and the telecommunications head of legislative power in the Constitution. 77. The physical element of this offence requires the offender to undertake conduct in relation to an electronic service. The range of conduct criminalised by the this offence includes when the offender creates, develops, alters, maintains, controls, moderates, makes available, advertises or promotes an electronic service with the intention of facilitating dealings with child abuse material online. Examples of this conduct may include writing computer code, providing infrastructure to enable hosting of websites or moderating the content or use of a chat forum for the creation and sharing of child abuse material. 78. New subparagraph 474.23A(1)(a)(iv) also captures an offender (Person A) who assists another person (Person B) to do any of the conduct listed above with the intention of facilitating dealings with child abuse material online. Unlike the complicity and common purpose provision in section 11.2 of the Criminal Code, subparagraph 474.23A(1)(a)(iv) does not require that Person B also commits an offence against section 474.23A. An example of this would include: Person A instructs Person B, an employee of a legitimate website development company, to create a web content management system. Person A intends for the website to be used to facilitate dealings with child abuse material. Person B does not know what the website will be used for. Person A is guilty of assisting Person B to create an electronic service with the intention that the service will be used to facilitate dealings with child abuse material. Person B creates an electronic service but without intending for it to be used in this way. Person B cannot be guilty of an offence against new section 474.23A. 79. Because new section 474.23A already envisages scenarios in which multiple people are involved in the offending, section 474.24A (Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people) does not apply to this offence. 80. The mental element of this offence requires the offender to undertake the requisite conduct in relation to the electronic service with the intention that the service will be used in committing, or facilitating the commission of, an offence against sections 474.22 or 474.23. The offence does not require the prosecution to prove that a person (being the offender or someone else) actually used the requisite electronic service to commit an offence contrary to sections 474.22 or474.23. 81. Section 11.1 of the Criminal Code does not apply to this offence, meaning that a person cannot attempt to commit an offence against section 474.23A. The offence already covers a broad range of scenarios in the timeline of offending, ranging from the creation of 27

an electronic service that has not gone live yet to the maintenance of an established website with a global following. 82. New section 474.23A is not limited in application to offenders over 18 years of age. In accordance with section 474.24C of the Criminal Code, the Attorney-General must provide his consent to commence proceedings where the offender is under the age of 18. Section 474.24C ensures that there are sufficient safeguards to prevent the unnecessary prosecution of young persons. 83. The offence will be punishable by a maximum penalty of 18 years' imprisonment. This penalty reflects the higher level of culpability associated with an offence for facilitating the offending of others, including the promotion and creation of child abuse material. 84. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 474.23A, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia. Item 21 - Subsections 474.24(1), (3) and (4) of the Criminal Code 85. Item 21 updates the text of subsections 474.24(1), (3) and (4). Section 474.24 deals with defences in respect of child abuse material. 86. Item 21 omits reference to "474.22 (474.22 (using a carriage service for child abuse material) or 474.23 (possessing etc. child abuse material for use through a carriage service)" in subsections 474.24(1), (3) and (4), and substitutes this with "474.22, 474.23 or 474.23A". The purpose of this change is to streamline reference to offences within Division 474, and to ensure that these provisions apply to the "new" offence in section 474.23A (conduct for the purposes of electronic service used for child abuse material). Items 22 and 23 - Clarifying notes in 474.25A of the Criminal Code (using a carriage service for sexual activity with person under 16 years of age) 87. This item will insert notes in section 474.25A of the Criminal Code to clarify the scope of the conduct captured by the offence includes live-streamed child abuse. Section 474.25A was introduced with the purpose of ensuring 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 only capture sexual activity that occurs in "real time", using a carriage service. Sexual activity with a child that does not occur in "real time" is captured by other Commonwealth, state or territory offences, including offences for transmitting child abuse material under sections 474.22 and 474.23 and offences for engaging in sexual activity with a child outside Australia in Division 272 of the Criminal Code. 88. The notes reflect the scope of the conduct captured by the offences in section 474.25A by more clearly drawing attention to the existing definition of engaging in sexual activity in 28

the Dictionary of the Criminal Code and as it applies to offences relating to the use of a carriage service involving sexual activity with persons under 16 years of age. 89. Item 22 inserts a note after subsection 474.25A(1) (engaging in sexual activity with child using a carriage service). This note aims to clarify, by way of examples, that the offence covers a person using a carriage service to see or hear, in "real time", a person under 16 years of age engage in sexual activity. This note also provides that the offence covers a person engaging in sexual activity that is seen or heard, in "real time", by a person under 16 years of age using a carriage service. 90. The definition of engage in sexual activity in the Dictionary of the Criminal Code ensures that a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity. 91. Item 23 inserts a note after subsection 474.25A(2) (causing child to engage in sexual activity with another person). The note aims to clarify, by way of example, that the offence covers causing a person under 16 years of age to engage in sexual activity that is seen or heard, in "real time", by another person by using a carriage service, or to cause a person under 16 years of age to use a carriage service to see or hear, in "real time", another person engage in sexual activity. Item 24 - Section 474.25B of the Criminal Code (heading) 92. Item 24 repeals the heading before section 474.25B of the Criminal Code and replaces it with 'Aggravated offence - using a carriage service for sexual activity with person under 16 years of age'. This item reflects the expansion of aggravating factors described in item 26 to include two additional factors of aggravation in section 474.25B. Item 25 - Paragraph 474.25B(1)(a) of the Criminal Code 93. Item 25 inserts reference to "the underlying offence" in existing paragraph 474.25B(1)(a). This provides clarity in reference to the aggravated offences by ensuring that the "underlying offence", for the purposes of this provision, means an offence against subsections 474.25A(1) or (2). Item 26 - Section 474.25B of the Criminal Code - Aggravated offence - using a carriage service for sexual activity with person under 16 years of age 94. Item 26 introduces new aggravated offences that apply to the offence of using a carriage service to engage in sexual activity with a person under the age of 16 in section 474.25A. The item repeals existing paragraph 474.25B(1)(b) and replaces it with "new" paragraph (b). 95. Section 474.25B operates to criminalise a range of activities that aggravate the use of a carriage service for sexual activity with a child as criminalised under existing section 474.25A of the Criminal Code. Under new paragraph (b), it will be an aggravated offence for a person to commit an offence against section 474.25A (using a carriage service for sexual activity with person under 16 years of age) where:  the child has a mental impairment (existing subparagraph 474.25B(1)(b)(i)); 29

 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 (existing subparagraph 474.25B(1)(b)(ii));  the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iii)); or  the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iv)). 96. The new aggravated offences in subparagraphs 474.25B(1)(b)(iii) and 474.25B(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. The Government considers such circumstances to be so grave as to warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability. 97. Subparagraph 474.25B(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in the underlying offence. 98. This may include, for example, where the offender causes the child to be unconscious when committing the underlying offence or causes the child to be disfigured or dismembered. 99. Subparagraph 474.25B(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in subsections 474.25A(1) or (2) (the underlying offence). "Physical harm" is limited to the definition of "physical harm" in the Criminal Code, which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances. 100. The inclusion of the reference to "in connection with" is intended to cover treatment that occurs both before and / or after the sexual activity, and that is directly linked to the sexual activity. 101. Subsection 474.28(7A) will continue to apply to this offence. 102. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a result. Under section 5.4 of the Criminal Code, a person is "reckless" with respect to a result if (a) he or she is aware of a substantial risk that the result will occur, and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 103. Accordingly, to establish an offence under subparagraph 474.25B(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:  the person committed the underlying offence, and  the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and 30

 the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and  having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity. 104. To establish an offence under subparagraph 474.25B(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:  the person committed the underlying offence, and  the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and  the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and  having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity. 105. These new aggravated offences will be punishable by a maximum penalty of 25 years imprisonment, consistent with the existing aggravated offences for sexual activity where the child has a mental impairment or the person is in a position of trust or authority in relation to the child. This penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity. Item 27 - Section 474.27AA of the Criminal Code 106. This item inserts a new section 474.27AA into the Criminal Code. This item will insert a new offence criminalising using a carriage service to "groom" another person to make it easier to procure persons under 16 years of age for sexual activity. 107. New section 474.27AA complements the existing procurement and grooming offences set out in sections 474.26, 474.27 and 474.25C of the Criminal Code. Proposed section 474.27AA contains three separate offences for the online "grooming" of third parties. 108. The proposed offence in subsection 474.27AA(1) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with the sender. 109. For example, an act of "grooming" a third party using a carriage service may include a person who is an adult (Person A) and is in a relationship with another adult (Person B), using their phone to text Person B offering to look after Person B's son, who is under 16 years of age, with the intention of engaging in sexual activity with the son while Person B is away. 31

110. The proposed offence in subsection 474.27AA(2) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another person (the participant). 111. The proposed offence in subsection 474.27AA(3) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another child, under 18 years of age, in the presence of the sender or another person (the participant). 112. The reference to "engage in sexual activity" in subparagraphs 474.27AA(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in "real life". The definition of 'engage in sexual activity' extends to an act that does not necessarily require physical contact and includes engaging in online sexual activity with a child. 'Engage in sexual activity' also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity. 113. The reference to "procure" in paragraphs 474.27AA(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. "Procure" is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in "consensual" sexual activity but also includes conduct where a sender may coerce a person into engaging in "non-consensual" activity. 114. Paragraphs 471.25A(1)(c) and (2)(c), and subparagraph (3)(d)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions. 115. The proposed maximum penalty is imprisonment for 15 years for each offence under section 474.27AA. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences of procurement (imprisonment 15 years) and "grooming" (imprisonment 15 years) that will be increased in Part 10.6 of the Criminal Code under item 10 and 11 of Schedule 5. The proposed maximum penalty of 15 years' imprisonment is consistent with the serious nature of this type of offending behaviour. Grooming can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the object of the grooming behaviour. The maximum penalty recognises the harm done to the victims of this offence. 116. The conduct in sections 474.27AA(1)(a), (2)(a) and (3)(a) requires that a carriage service is used to engage in the criminalised conduct. This provides the relevant connection with the Commonwealth's telecommunications power under the Australian Constitution. 117. The presumption set out in section 475.1B of the Criminal Code that conduct is engaged in using a carriage service will apply as the offence will be inserted into Subdivision F of Division 474 of the Criminal Code. This presumption means that if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves contrary, that the person engaged in that conduct using a carriage service. 32

118. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 474.27AA, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia. Item 28 - Paragraph 474.28(1)(a) of the Criminal Code 119. This item amends paragraph 474.28(1)(a) by inserting a reference to section 474.27AA so that absolute liability applies to the physical element of the circumstances of the offence that the child referred to is someone who is under 16 years of age. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Item 29 - Subsection 474.28(2) of the Criminal Code 120. This item amends subsection 474.28(2) by inserting a reference to section 474.27AA(2) or 474.27AA(3) so that absolute liability applies to the physical element of the circumstances of the offence that the participant is at least 18 years of age. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Item 30 - Subsection 474.28(3) and (4) of the Criminal Code 121. This item amends subsections 474.28(3) and (4) by repealing the subsections and replacing them with a new subsection 474.28(3). New subsection 474.28(3) provides that evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence that is contrary, proof that the defendant believed the person to be under, of, at least or over that age. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Item 31 - Subsection 474.28(8) of the Criminal Code 122. This item amends paragraph 474.28(8) by inserting a reference to section 474.27AA so that a person may be found guilty for an offence under 474.27AA even if it is impossible for the sexual activity to take place. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Items 32 to 34 - Subsection 474.28(9) of the Criminal Code 123. Item 32 amends the heading of subsection 474.28(9) of the Criminal Code by repealing the heading and replacing it with a new heading: "Fictitious persons". This amendment is consequential to item 34 which inserts a new subsection 474.28(9A) into the Criminal Code after subsection 474.28(9). New subsection 474.28(9A) makes it irrelevant for the purposes of an offence under 474.27AA whether a fictitious person is represented to the sender as a real person. This item expands the heading from "Fictitious recipient" to 33

"fictitious persons" to reflect that subsections 474.28(9) and 474.28(9A) together refer to fictitious persons who may not exclusively be recipients. 124. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement agent assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child. 125. Item 33 applies subsection 474.28(9) to the operation of the offence for online "grooming" of third parties under section 474.27AA. Subsection 474.28(9) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. 126. Item 34 inserts a new subsection 474.28(9A) into subsection 474.28(9) of the Criminal Code. New subsection 474.28(9A) provides that, for the operation of section 474.27AA, it does not matter that the child is a fictitious person represented to the sender as a real person. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Item 35 - Subsection 474.28(10) of the Criminal Code 127. This item applies subsection 474.28(10) to the offence for online "grooming" of third parties under section 474.27AA. Section 474.28(10) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. Items 36 to 37 - Subsection 474.29(4) of the Criminal Code 128. Item 36 amends the heading of subsection 474.29(4) of the Criminal Code by repealing the heading and replacing it with a new heading: "Procuring and "grooming" offences involving child engaging in sexual activity with other participant - belief that participant under 18 years of age". The new heading makes clear that the person, referred to in the heading and the object of offences for grooming and procuring, is a child. This amendment is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. 129. Item 37 applies subsection 474.29(4) to subsections 474.27AA(2) and 474.27AA(3). Subsection 474.29(4) provides that it is a defence to a prosecution under subsections 474.27AA(2) and 474.27AA(3) if the defendant can prove that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 27 which inserts a new offence for online "grooming" of third parties into the Criminal Code. 34

Items 38 to 39 - Subsection 474.29(5) of the Criminal Code 130. Item 38 amends the heading of subsection 474.29(5) of the Criminal Code by repealing the heading and replacing it. This amendment is consequential to item 27 which inserts a new offence for the online "grooming" of third parties into the Criminal Code. 131. Item 39 amends the subsection 474.29(5) by inserting a new subsection 474.29(5A) into the Criminal Code. This amendment is consequential to item 27 which inserts a new offence for the online "grooming" of third parties into the Criminal Code and provides that it is a defence to a prosecution under this new offence if the defendant can prove that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age. This ensures that this new offence for the online "grooming" of third parties only targets predators who are trying to make it easier to engage in sexual activity with a child under the age of 16. Item 40 - Insert electronic service into Dictionary of Criminal Code 132. Item 40 inserts a reference to the definition of electronic service as defined in new section 474.23A into the Dictionary of the Criminal Code. Schedule 5--Increased penalties Criminal Code Act 1995 Items 1 and 2- Subsections 272.9(1) and (2) of the Criminal Code (penalty) 133. Item 1 repeals the existing penalty under subsection 272.9(1) and substitutes it with a maximum penalty of 18 years imprisonment. 134. Item 2 repeals the existing penalty under subsection 272.9(2) and substitutes it with a maximum penalty of 18 years imprisonment. 135. These amendments ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 18 years' imprisonment strikes an appropriate balance between the maximum penalty of 15 years' imprisonment for offences preparatory to engaging in sexual activity with a child, including procuring and 'grooming' offences, and the maximum penalty of 20 years' imprisonment for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code).Item 3 - Subsection 272.15(1) of the Criminal Code (penalty) 136. Item 3 repeals the existing maximum penalty of 12 years' imprisonment under subsection 272.15(1) and substitutes it with a maximum penalty of 15 years imprisonment. 137. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm "grooming" has on a child victim. "Grooming" is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ 'grooming' behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of 'grooming' can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of 'grooming') the perpetrator impacts the child victim's psychosocial development. 35

Items 4 and 5 - Subsection 471.25 of the Criminal Code (Using a postal or similar service to "groom" persons under 16) 138. Items 4 and 5 repeal the existing maximum penalties of 12 years' imprisonment for offences under subsections 471.25(1) and 471.25(2) of the Criminal Code (using a postal or similar service to "groom" persons under 16) and substitute them with a maximum penalty of 15 years. 139. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm 'grooming' has on a child victim. 'Grooming' is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ 'grooming' behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of 'grooming' can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of 'grooming') the perpetrator impacts the child victim's psychosocial development. Item 6 - Subsection 471.26(1) of the Criminal Code (Using a postal or similar service to send indecent material to person under 16) 140. Item 6 repeals the existing maximum penalty of 7 years' imprisonment in subsection 471.26(1) and substitutes this with a maximum penalty of 10 years' imprisonment. A comparative increase will be made to section 474.27A (using a carriage service to transmit indecent communication to person under 16 years of age). 141. This will also bring the maximum penalty in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim. Item 7 - Section 474.25 of the Criminal Code (Obligations of internet service providers and internet content hosts) 142. Item 7 repeals the existing maximum penalty of 100 penalty units for non-compliance with the obligation in section 474.25 and substitutes this with a maximum penalty of 800 penalty units. 143. Section 474.25 obliges Internet Service Providers and Internet Content Hosts who become aware that the service they provide can be used to access particular material that they have reasonable grounds to believe is child abuse material to refer the details of that material to the Australian Federal Police within a reasonable time. 144. Increasing the penalty for Internet Service Providers and Internet Content Hosts that do not comply with this obligation reflects the serious effects on children and the community that can result from the proliferation of, and access to, child abuse material. 36

Item 8 and 9 - Section 474.25A of the Criminal Code (Using a carriage service for sexual activity with a person under 16 years of age) 145. Items 8 and 9 repeal the existing maximum penalties of 15 years' imprisonment for offences under subsections 474.25A(1) and 474.25A(2) of the Criminal Code (using a carriage service for sexual activity with a person under 16 years of age) and substitutes these with a maximum penalty of 18 years' imprisonment. 146. These amendments ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 18 years' imprisonment strikes an appropriate balance between the maximum penalty of 15 years' imprisonment for offences preparatory to engaging in sexual activity with a child, including procuring and "grooming" offences, and the maximum penalty of 20 years' imprisonment for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code). Item 10 and 11 - Section 474.27 of the Criminal Code (Using a carriage service to "groom" persons under 16 years of age) 147. Items 10 and 11 repeal the existing maximum penalties of 12 years' imprisonment for offences under subsections 474.27(1) and 474.27(2) (using a carriage service to "groom" persons under 16 years of age) and substitute these with maximum penalties of 15 years' imprisonment. 148. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm 'grooming' has on a child victim. 'Grooming' is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ 'grooming' behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of 'grooming' can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of 'grooming') the perpetrator impacts the child victim's psychosocial development. Item 12 - Section 474.27A of the Criminal Code (Using a carriage service to transmit indecent communication to person under 16 years of age) 149. Item 12 repeals the existing maximum penalty of 7 years' imprisonment in subsection 474.27A(1) and substitutes this with a maximum penalty of 10 years' imprisonment. 150. This brings the term of imprisonment in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim. Application of the increased penalties 151. Retrospectivity will not apply to the increase in maximum penalties for the offences where a person has been convicted of an offence committed before but subsequently sentenced to. 37

Schedule 6--Minimum sentences Crimes Act 1914 152. Child sexual abuse and conduct such as "grooming" and procuring has significant impacts on child victims and the community. Accordingly, a significant penalty is necessary to protect the community, reflect the harm done to victims and deter others from offending. 153. This schedule inserts mandatory minimum penalties into the Crimes Act. Mandatory minimum penalties will apply in two circumstances: firstly, for offences classified as the most serious Commonwealth child sex offences (section 16AAA); secondly, to all Commonwealth child sex offences (excluding section 474.25C of the Criminal Code) where the Commonwealth child sex offence(s) are a second or subsequent offence (section 16AAB). Item 1 - At the end of subsection 16A(1) 154. This clarifies that, despite section 16A(1), there will be applicable minimum penalties for certain Commonwealth child sex offences under proposed sections 16AAA, 16AAB and 16AAC. Item 2 - After section 16AA Section 16AAA 155. The proposed section 16AAA and relevant table establishes that if a person is subject to the offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2. For example, where a person commits an aggravated child pornography offence against section 471.22 of the Criminal Code, the person must be sentenced to a minimum penalty of 6 years subject to the reduction principles in proposed section 16AAC. 156. The offences included under the proposed section 16AAA attract a minimum penalty upon a first and subsequent conviction. The offences are limited to the serious Commonwealth child sex offences involving engaging in sexual activity with children or aggravated offences within Division 272, 273, 471 and 474 of the Criminal Code. Section 16AAB 157. The proposed section 16AAB and relevant table sets out the minimum penalty a person is to be sentenced for an individual offence where that offence is a second or subsequent offence and the requirements for applying the second or subsequent offence minimum penalties. 158. For second or subsequent offence minimum penalties to apply, the person must be convicted of a "Commonwealth child sexual abuse offence" (proposed paragraph 16AAB(1)(a). 159. The proposed section 16AAB(1) sets out the circumstances that must be met before minimum penalties can be applied to an offence for being a second or subsequent offence. 38

The proposed section 16AAB(1)(a) requires that the person has been convicted and is being sentenced for a Commonwealth child sex offence. 160. The proposed section 16AAB(1)(b) requires that the person must have been convicted previously of a child sexual abuse offence in an earlier sitting. The reference to "in an earlier sitting" is intended to exclude a first time offender being subject to the minimum penalties where the person has been convicted and is now being sentenced for multiple "child sexual abuse offence(s)". Section 16AAB(1)(b) utilises the definition of "child sexual abuse offence" which includes certain Commonwealth child sex offences and state and territory registrable child sex offences (see item 2, Part 1 of Schedule 15). 161. The proposed section 16AAA and relevant table establishes that if a person is subject to the offences in column 1, the court must impose a sentence of imprisonment of at least the period specified in column 2, subject to any reductions under proposed section 16AAC. The offences within table 16AAC are the remainder of the child sexual abuse offences except sections 474.25 and 474.25C. 162. Section 474.25 is not suitable for mandatory minimum penalties due to the offence being for Internet Service Providers and Internet Content Hosts. In recognising the vital role that internet service providers and internet content hosts play in combatting the sexual abuse of children, other measures have been proposed (see increase in penalties in item 7 of Schedule 5). 163. Section 474.25C is an offence targeted at the very preliminary stages of the offending spectrum. It captures those who engage in conduct to prepare to cause harm, without the need to demonstrate a sexual intent. As such, mandatory minimum penalties will not apply to section 474.25C. 164. An example of the mechanics of the second or subsequent offence minimum penalties regime would be where an offender has previously been convicted of a state or territory child abuse material possession offence 12 months ago and that offender is now being sentenced for accessing child abuse material through a carriage service. The court would be required to apply a minimum penalty of 4 years subject to any reductions under proposed section 16AAC. Section 16AAC 165. The proposed section 16AAC sets out the exclusions and reductions to the mandatory minimum penalties. Exclusion - People aged under 18 166. The proposed subsection 16AAC(1) excludes people under the age of 18 when the offence that the relevant provision specifies a minimum penalty for was committed while they were under the age of 18 years. Reductions of minimum penalty 167. The Bill recognises the value of a guilty plea and cooperation with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective criminal justice system and to reduce impacts on witnesses and victims. 39

168. The proposed subsection 16AAC(2) permits the court to impose a sentence of imprisonment of less than the minimum penalties specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2). This can be done if the court considers it appropriate to reduce the sentence because of either or both of the following: (a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty, and (b) the court is taking into account, under paragraph 16A(2)(h), the person having co- operated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence. 169. In reducing the minimum penalty, the proposed subsection 16AAC(3) sets out the restrictions on any reductions done so under the proposed subsection 16AAC(2). Proposed paragraph 16AAC(3)(a) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed subsection 16AAC(2)(a). Proposed paragraph 16AAC(3)(b) allows for a reduction of up to 25% of the period specified in column 2 of the applicable item in the relevant table should the court reduce the minimum penalty pursuant to proposed subsection 16AAC(2)(b). The proposed paragraph 16AAC(3)(c) allows for a reduction of up to 50% taking into account both of the matters in paragraphs (a) and (b). Item 3 - Application provision 170. Sub-item 1 ensures that the mandatory minimum penalties only apply in relation to conduct engaged in, on or after the commencement of the Bill. 171. Sub-item 2 allows for previous convictions of conduct that would amount to "child sexual abuse offence" regardless of whether the relevant previous conviction of the person occurred before, on or after the commencement of the Bill. This ensures that, in determining second and subsequent mandatory penalties, any previous convictions of child sexual abuse conduct are captured. Schedule 7--Presumption against bail Crimes Act 1914 172. Schedule 7 amends the existing section 15AA and creates a presumption against bail for a person alleged to have committed the most serious Commonwealth child sex offences and most second or subsequent offences (excluding section 474.25C). The presumption is intended as a starting point for determining bail as it is inappropriate that such a person be granted bail in relation to these offences unless circumstances exist justifying the grant of bail. 173. The schedule also makes a minor amendment to section 15AA. 40

Part 1 - Court records Item 1 - After subsection 15AA(3) 174. The proposed subsection 15AA(3AA) requires that where a bail authority is a court and grants bail, the court must state the reasons for doing so in writing, and cause those reasons to be entered in the court's records. Item 2 - Application provision 175. The proposed amendment to section 15AA will apply to decisions made on or after the commencement of the Bill by a bail authority to grant bail to a person charged with, or convicted of, an offence. Part 2 - Commonwealth child sex offences Crimes Act 1914 Presumption against bail for Commonwealth child sex offenders 176. This Part introduces an offence-based presumption for certain Commonwealth child sex offences. The Government considers that the criminal conduct involved in this crime type targets one of the most vulnerable groups in the community: children. 177. While bail conditions may act as an effective deterrent, they are only as good as the practical measures taken to enforce those conditions. The ease in utilising anonymising practices such as encryption and virtual private networks makes the enforcement of conditions particularly difficult where that relates to internet offending. Item 3 - After section 15AA 178. This item inserts proposed section 15AAA which sets out to what offences the presumption against bail applies. 179. The proposed paragraph 15AAA(1)(a) applies this presumption against persons charged with, or convicted of, the most serious Commonwealth child sex offences to which mandatory minimum penalties apply (see table in the proposed section 16AAA in Schedule 6). 180. The proposed paragraph 15AAA(1)(b) applies this presumption for all offences subject to a mandatory minimum penalty on a second or subsequent offence (see proposed table under subsection 16AAB(2) in Schedule 6) where the person has been previously convicted of child sexual abuse. A child sexual abuse offence is defined in proposed section 3(1) of the Crimes Act in Schedule 15. 181. Applying this definition, the proposed paragraph 15AAA(1)(b) captures persons previously convicted of state and territory registrable child sex offences and Commonwealth child sex offences. It will also capture child sex offences which were committed under Commonwealth legislation that has since been repealed. These will be an offence against sections 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any 41

time before the commencement of this Act and an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010. This will be achieved by the use of "child sexual abuse offence" in the proposed subsection 15AAA(b) (see the detailed explanation of this proposed definition at item 2 of Part 1 of Schedule 15). 182. Proposed subsection 15AAA(2) will require that a bail authority be satisfied that circumstances exist to grant bail to a person taking into account such of the matters outlined in paragraphs 15AAA(2)(a) - (f) as are relevant and known to the bail authority. 183. In considering these matters, the bail authority will be required, as part of its assessment, to consider the bail conditions which could reasonably be imposed on the person to address those matters. 184. Proposed paragraph 15AAA(2)(a) requires that the bail authority consider whether the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail. 185. Proposed paragraph 15AAA(2)(b) requires the bail authority consider whether the person would be likely to commit a further offence if the person were granted bail. 186. Proposed paragraph 15AAA(2)(c) requires the bail authority consider whether the person would likely put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail. 187. Proposed paragraph 15AAA(2)(d) requires the bail authority consider whether a person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail. 188. Proposed paragraph 15AAA(2)(e) requires the bail authority to consider the impact a refusal of bail would have on someone who is aged under 18 years. A person who is under the age of 18 years can be severely affected by being remanded into custody and a decision to do so should be considered a matter of last resort. 189. Where a person has pleaded guilty to a charge or been convicted of the offence, proposed section 15AAA(2)(f) requires the bail authority to consider whether that person would not be likely to undertake a rehabilitation program, or not comply with any bail conditions relating to rehabilitation or treatment, while released on bail. A key aspect of preventing further offending for this crime type may be active participation in, and compliance with, rehabilitation or treatment programs. 190. If the bail authority is satisfied that the above matters can be addressed through conditions, and there are no other matters the court deems relevant to the refusal of granting bail, the person must be released on bail. 191. Where a bail authority is a court and does grant bail, the court must state those reasons in writing, and cause those reasons to be entered in the court's records. 192. Despite any law of the Commonwealth, subsection 15AAA(4) ensures there is right of appeal for the Director of Public Prosecutions or the person against the decision of a bail authority where bail is granted or refused pursuant to subsection 15AAA(1). 42

193. Subsections 15AAA(5) - (8) set out how an appeal may be initiated, notification requirements for the Director of Public Prosecutions, when a decision is stayed until appeal decision and the interaction with the laws of a state or a territory. Subsections 15AAA(5)-(8) are similar to the existing provisions relating to bail in s.15AA. Item 4 - Application provision 194. Sub-item 1 ensures that the proposed section 15AAA will apply to decisions made on or after the commencement of the Bill, by a bail authority to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement). 195. Given the proposed amendments to the definition of 'Commonwealth child sex offence' before the commencement of the Bill (for example, the amalgamation of the terms 'child pornography material' and 'child abuse material' into the single definition of 'child abuse material'), sub-item (2) ensures that section 15AAA applies in relation to that conduct as if, on or after that commencement, that conduct before commencement constituted a 'Commonwealth child sex offence'. For example, if a person committed an offence that would constitute a repealed 'child pornography material' offence before the commencement, the strict bail rules would apply to those persons after the date of commencement. 196. The proposed repealing of provisions relating to "child pornography material" does not remove the criminality attached to conduct that would attract those offences but encapsulate it through expansion of the existing definition of "child abuse material". See the detailed explanation of these proposed amendments for items 1 and 2 of Part 1 of Schedule 15. Accordingly, sub-item 2 preserves this application as if conduct that would have previously constituted a Commonwealth child sex offence and now does not constitute a Commonwealth child sex offence, section 15AAA applies to those ongoing criminal prosecutions. Schedule 8--Matters court has regard to when passing sentence etc. Crimes Act 1914 Items 1 and 2 - Paragraph 16A(2)(g) and after 16A(2)(m) 197. These items introduce additional general sentencing factors to which the court must have regard when sentencing a federal offender. The existing paragraph 16A(2)(g) is expanded upon so that in addition to considering the fact that the person pleaded guilty to the charge in respect of the offence, regard is also to be had to the timing of that plea and the degree to which these factors resulted in any benefit to the community or to any victim of or witness to the offence. 198. The amendment to paragraph 16A(2)(g) is an acknowledgement that is it appropriate for offenders to be offered a reduction in their sentence as early guilty pleas reduce the costs associated with prosecuting offenders and save victims and witnesses from the often harrowing experience of giving evidence and being cross-examined in open court. 43

199. Proposed paragraph 16A(2)(ma) introduces as a new sentencing consideration whether the person's standing in the community was used to aid in the commission of the offence. Where this is the case it is to be taken as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates. 200. It is intended that this will capture scenarios where a person's professional or community standing is used as an opportunity for the offender to abuse children. For example, this would cover a medical professional using their professional standing as a "medical practitioner" or a person using "celebrity" status to create opportunities to sexually abuse children. Item 3 - After subsection 16A(2) 201. This item inserts subsection 16A(2AAA) which introduces a specific sentencing factor relating to rehabilitation that the court must have regard to when sentencing people for Commonwealth child sex offences in the Criminal Code. This factor must be considered in addition to the general sentencing factors in subsection 16A(2), as part of the overall balancing exercise undertaken in order to determine a sentence of appropriate severity. 202. This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of at least 18 months is required for offenders to be able to complete a relevant sex offender program. 203. The new subsection requires the court to have regard to the objective of rehabilitation when determining the sentence to be passed or order to be made. Under subsection 16A(2AAA) the court will have to consider if it would be appropriate to make orders imposing conditions about rehabilitation or treatment options. A further consideration is whether the sentence or non-parole period set provides sufficient time for the person to undertake rehabilitation. For example, generally a non-parole period of at least 18 months is required for offenders to complete a sex offender rehabilitation program while in prison. 204. In taking these matters into consideration the court is only required to have regard to what they consider appropriate, taking into account such matters as are relevant and known to the court. There is no requirement for the courts to conduct independent enquiries into rehabilitation options for a particular offender. Item 4 - Subsection 16A(2A) 205. This item makes it clear paragraph 16A(2)(ma) has primacy over 16A(2). The prohibition in subsection 16A(2A) against taking into account any form of customary law or cultural practice as a reason for aggravating the seriousness of the criminal behaviour does not apply if this is what gave rise to the person's standing in the community and was used by the person to aid in the commission of the offence. Item 5 - Subsection 16A(3) 206. This is a consequential amendment to Item 3 The purpose of paragraph 16A(2AAA)(3) is to give further guidance to the courts in considering whether to impose an order under subsections 19B, 20 and 20AB instead of imprisonment as the appropriate 44

punishment. The matters that a court in this situation is to consider are the nature and severity of the conditions that may be imposed on the person. Criminal Code Act 1995 Item 6 - Subsection 272.30(2) of the Criminal Code 207. This item is a consequential amendment to Item 3. Subsection 272.30(2) of the Criminal Code sets out sentencing factors to be taken into consideration for an offence against subdivision B of the Criminal Code, but makes it clear that these considerations are in addition to any other matters the court must take into account, including subsection 16A(2). This item amends this to cover section 16A more broadly. Item 7 - Application provision 208. This item provides that the amendments made by Schedule 8 apply in relation to determining a sentence to be passed, or an order to be made, in respect of a person for a federal offence, regardless of whether than person was charged with or convicted of the offence before or after commencement of the Bill. Schedule 9--Additional sentencing factors for certain offences Criminal Code Act 1995 Item 1 - Subsection 272.30(1) of the Criminal Code 209. Item 1 inserts new additional factors for mandatory consideration at sentencing, including one aggravated factor and one relevant factor. 210. When sentencing a person convicted of an offence in Subdivision B of Division 272, the court must now take into account as an aggravating factor if the person in relation to whom the offence was committed was under 10 years of age at the time of offending. 211. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending. 212. The court must now also take into account as a relevant factor the number of people involved in the offending. This recognises that in certain instances, offences against Subdivision B are potentially more serious and harmful to victims if multiple people are involved, so far as these matters are relevant and known to the court. Item 2 - After subsection 272.30(1) of the Criminal Code 213. Item 2 inserts subsection 272.30(1A) which limits the court's requirement to consider the matters in subsections 272.30(1)(a) and (c) to occasions where the matters in those subsections are relevant and known to the court. 45

Item 3 - Section 471.29A of the Criminal Code 214. Item 3 inserts section 471.29A in Division 471 of the Criminal Code. Subsection 471.29A(1) provides that a court, when determining the sentence or the order to be made against a person for an offence against Subdivision C of Division 471 (Offences relating to use of postal or similar service involving sexual activity with person under 16), must consider: (a) the age and maturity of the victim or intended victim of the offence, and (b) if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and (c) the number of people involved in the commission of the offence. 215. The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that the sexual history of the victim be taken into account when considering their maturity. 216. The seriousness of offending behaviour in Subdivision C of Division 471 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending. 217. The court must also take into account as a relevant sentencing factor the number of people involved in the offending. This recognises that, in certain instances, offences against Subdivision C are potentially more serious and harmful to victims if multiple people are involved. 218. Section 471.29A provides that the court is required to take these factors into account as far as they may be known to the court. The factors in subparagraphs 471.29A(1) (a) and (c) need only be considered if they are relevant, whereas the factor in subparagraph 471.29A(1)(b), when known, must always be considered. 219. The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings. 220. New subsection 471.29A(3) ensures that the matters mentioned in subsections 471.29A(1) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act, which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences. 46

Item 4--section 474.29AA of the Criminal Code (Sentencing) 221. Item 4 inserts section 474.29AA in Division 474 of the Criminal Code. Subsection 474.29AA(1) provides that a court, when determining sentence or the order to be made against a person for an offence against Subdivision F of Division 474 (Offences relating to use of carriage service involving sexual activity with person under 16), must consider:  the age and maturity of the victim or intended victim of the offence, and  if the victim or intended victim of the offence was under 10 when the offence was committed - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates, and  the number of people involved in the commission of the offence. 222. The intention behind this provision is to allow the court to consider the unique circumstances of any case. The age and maturity of the victim or intended victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that sexual history of the victim be taken into account when considering their maturity. 223. The seriousness of offending behaviour in Subdivision F of Division 474 of the Criminal Code will be aggravated where the victim or intended victim was under 10 years of age at the time of the offending. The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending. 224. The court must also take into account, as a relevant sentencing factor, the number of people involved in the offending. This factor recognises that, in certain instances, offences against Subdivision F are potentially more serious and harmful to victim if multiple people are involved. 225. Section 474.29AA provides that the court is required to take these factors into account as far as they may be known to the court. The factors in subparagraphs 474.29AA(1)(a) and (c) need only be considered if they are relevant, whereas the factor in subparagraph 474.29AA(1)(b), when known, must always be considered. 226. The provision is framed so that the prosecution can lead evidence to establish these factors through the course of the proceedings. 227. New subsection 474.29AA(3) ensures that the matters mentioned in subsections 474.29AA(1) and (2) are in addition to any other matters the court must take into account - for example, section 16A of the Crimes Act, which deals with matters the court must take into account when passing sentences for federal offences. This is intended to avoid doubt that existing sentencing factors apply to the relevant offences. 47

Item 5 - Application provision 228. Item 5 prescribes the application of the amendments made by Schedule 9 (Additional sentencing factors for certain offences). This provision ensures that the amendments made by Schedule 9 apply in determining the sentence to be passed (or order to be made) for a person for an offence that is committed on or after commencement of this item. Schedule 10--Cumulative sentences Crimes Act 1914 229. This Schedule inserts a presumption in favour of cumulative sentences when sentencing Commonwealth child sex offenders and the respective rules in applying that presumption. Item 1 - Before subsection 19(1) 230. This item inserts the sub heading "General requirements" before section 19(1) to aid the readability of the section. Its inclusion indicates that the rules under existing subsections 19(1) - (4) apply to sentencing all federal offenders. This requires that the courts follow the general rules concerning commencement dates and preventing gaps between sentences. Item 2 - At the end of section 19 231. This item inserts proposed subsections 19(5) - (7) which provide additional rules the court must have regard when sentencing for Commonwealth child sex offenders. Proposed subsection 19(5) requires that when sentencing an offender for a Commonwealth child sex offence a court must not make an order that has the effect that a term of imprisonment for that offence would be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment. 232. The presumption in favour of cumulative sentences only operates where a person is being sentenced for multiple Commonwealth child sex offences or Commonwealth child sex offences in addition to a state or territory registrable child sex offence. 233. The objective of the presumption is to act as a yardstick against which to examine a proposed sentence of an offender for multiple child sex offences to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children. It benefits circumstances such as where offences are committed against separate victims over an extended period of time. The proposed subsection 19(6) provides an exception to this rule where the court is satisfied that imposing a sentence in a different manner (such as partly cumulatively or concurrently) would be of a severity appropriate in all the circumstances. 234. The proposed subsection 19(6) recognises there will be circumstances where the application of this presumption would result in an unacceptable outcome. Accordingly, discretion is retained for the court to consider the outcome for all the offences in totality and, if appropriately satisfied, order the sentence in a different manner provided that the sentence overall is still of a severity appropriate in all the circumstances. 48

235. However, the proposed subsection 19(7) requires that where a court under subsection 19(6) is satisfied that the sentences does not need to be served cumulatively, the court must explain the reasons for doing so and ensure that the reasons are entered in the records of the court. Item 3 - Application provision 236. This item provides that the presumption in favour of cumulative sentencing applies to sentencing orders made on or after commencement of this Schedule where the offences to which the sentences relate were committed on or after that commencement. Schedule 11--Conditional release of offenders after conviction Crimes Act 1914 Item 1 - Paragraph 20(1)(b) 237. This amendment requires that a child sex offender serve an actual term of imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance order. This amendment is intended to ensure that all offenders convicted of Commonwealth child sex offences serve a period of imprisonment that is not suspended. Commonwealth child sex offence is defined: see items 3 - 6 in Schedule 15 of the Bill and Explanatory Memorandum. 238. Paragraph 20(1)(b)(i) applies to people convicted of a Commonwealth offence that is not a Commonwealth child sex offence. It preserves the current position and provides that the court can order that the offender be released either immediately or after serving only a portion of the sentence of imprisonment. 239. Paragraphs 20(1)(b)(ii) and 20(1)(b)(iii) apply to people convicted of a Commonwealth child sex offence and provide that the court can only release a person on a recognizance order immediately (without serving any period of imprisonment) if the court is satisfied that there are exceptional circumstances. Otherwise the child sex offender will have to serve an actual term of imprisonment before being released into the community on recognizance. Item 2 - Subsection 20(1A) 240. This is a consequential amendment to Item 2. It makes subsection 20(1A) subject to subsection 20(1B), making it clear that persons convicted of child sex offences are subject to the specific conditions set out in subsection 20(1B). Item 3 - After subsection 20(1A) 241. This item inserts a new subsection after subsection 20(1A) to require that a court making a recognizance release order for a child sex offender must attach certain conditions to the order. This differs from the requirements for other federal offenders who, although they must comply with the general condition to be of good behaviour, may or may not be subject to other conditions. 49

242. The conditions that apply to child sex offenders under 20(1A) are that the person will, during the specified period:  be subject to the supervision of a probation officer;  obey all reasonable directions of the probation officer;  not travel interstate or overseas without the written permission of the probation officer; and  undertake such treatment or rehabilitation programs that the probation officer reasonably directs. 243. Importantly, the directions of the probation officer must be reasonable. For example, a direction to attend a rehabilitation program in a different city to which the person lives would not be reasonable as it may be impossible to fulfil. Item 4 - Application and saving provisions 244. Sub item 1 provides that the amendments made by this Schedule apply in relation to an order made on or after commencement of this Schedule when sentencing a person in respect of an offence committed on or after that commencement. 245. Sub item 2 provides that the repeal and substitution of paragraph 20(1)(b) does not affect the validity of an order given under that paragraph before the commencement of this Schedule. Schedule 12--Additional sentencing alternatives Crimes Act 1914 Item 1 - After subparagraph 20AB(1AA)(a)(vii) 246. This item amends the list of sentencing alternatives in subsection 20AB(1AA) to include 'residential treatment orders'. Section 20AB(1AA) empowers courts to make certain alternative sentencing orders that are available under state or territory law. The new subparagraph is intended to capture the residential treatment order available under section 82AA of the Sentencing Act 1991 (Vic), as well as any similar orders that may exist or be enacted in other states and territories. It is appropriate that courts have the discretion to access such orders that have been designed to specifically meet the needs of certain classes of offenders. Item 2 - Subsection 20BQ(3) 247. This item provides that if the court makes an order under section 19BQ in respect of a person suffering from a mental illness or intellectual disability, it can still make a residential treatment order under the proposed subparagraph 20AB(1AA)(a)(vii). Item 3 - Application provision 248. This item provides that amendments made by this Schedule apply in relation to a sentence passed, or an order made, on or after the commencement of this Schedule, in respect of a person convicted before, on or after that commencement. 50

Schedule 13--Release on parole Crimes Act 1914 Item 1 - Subparagraph 19AL(2)(a)(ii) 249. This item is a consequential amendment to item 4 which inserts a new provision to ensure that information that could prejudice national security is not disclosed as a result of the operation of Part1B of the Crimes Act. This amendment explicitly provides that the requirement in subparagraph 19AL(2)(a)(ii) for the Attorney-General to provide reasons for a refusal to make a parole order is subject to the new section 22B. 250. In deciding whether to release a person on parole, the Attorney-General may have regard to a range of matters set out in section 19ALA, including the risk to the community of releasing the person on parole. 251. The effect of this amendment is that if an offender is refused parole, partially or wholly on the basis of intelligence information, the statement of reasons does not need to set out this information if disclosure of that information may adversely impact national security. Withholding such information is necessary for the protection of the public. Item 2 - Subsection 19AL(2) (note) 252. This item is consequential to item 3 which inserts a second note under this subsection. Item 3 - At the end of subsection 19AL(2) 253. This item inserts a second note under subsection 19AL(2). The note outlines the new section 22B to make it easier to understand its effect on subparagraph 19AL(2)(a)(ii). Item 4 - At the end of Division 10 of Part B 254. This item inserts a new section to maintain the security of reports, documents and information from being disclosed to a person under Part 1B of the Crimes Act in instances where its provision is, in the opinion of the Attorney-General, is likely to prejudice national security. 255. Subsection 22B(1) applies to reports and documents, whether in their entirety or in part. This includes documents provided to, or prepared by, the Commonwealth Parole Office. For example, reports prepared by an intelligence agency or corrective services agency, file notes or submissions to the Attorney-General. 256. Subsection 22B(2) applies to information about the content of a report or other document covered by subsection (1). This would apply to prevent a person from being required to disclose the general nature, or a summary of, information in a document that is covered by subsection (1). 257. Normally, in the course of making parole decisions, information adverse to an individual is put to that person for comment prior to the making of a decision. Although this amendment limits the procedural fairness afforded to federal offenders, it only does so to the extent necessary and proportional to protect national security and the public interest. The 51

amendment strikes an appropriate balance between these interests by ensuring that information can only be withheld on this limited ground. Item 5 - Application provisions 258. This item sets out the application of the amendments in items 1 and 4. 259. Sub item 1 provides that the amendment to subparagraph 19AL(2)(a)(ii) applies in relation to notices given on or after commencement of the Schedule about refusing to make a parole order, regardless of when the sentence was imposed. 260. Sub item 2 provides that section 22B applies to the provision of documents and information on or after commencement of the Schedule, regardless of when the documents or information were obtained. Schedule 14--Revocation of parole order or licence Crimes Act 1914 Item 1 - Subsection 19AA(2) 261. Section 19AA of the Crimes Act covers remissions and reductions of federal sentences. Subsection 19AA(2) applies state and territory laws relating to "clean street time" to federal offenders. "Clean street time" refers to the period between when an offender is released on parole or licence up to the time their parole or licence is revoked. Revocation can occur either as a result of the person committing a new offence or because they have failed to comply with a condition of their release. Upon revocation, the person is liable to serve that part of the sentence that was outstanding at the time of their release from prison. However, that period can be reduced by "clean street time". 262. This amendment is consequential to Item 5 which introduces a federal policy for "clean street time" in instances where revocation occurs following the commission of an offence. Removing the reference in subsection 19AA(2) to parole orders or licences that are "taken to be revoked" is necessary to ensure that the application of state and territory laws on "clean street time" will now only operate in respect of revocations made by the Attorney- General under section 19AU. Item 2 - Subsection 19AA(3) 263. Not all states and territories allow credit for time served without reoffending while on parole or licence. Subsection 19AA(3) provides that if the state or territory law does not provide for "clean street time" the court or prescribed authority must take in to account the time the person spent on parole or licence before revocation when determining the further period to be served in prison. 264. The amendment is consequential to Item 5 and is necessary so that subsection 19AA(3) only applies to revocations made by the Attorney-General under section 19AU. 52

Item 3 - Subsection 19AG(5) (paragraph (ca) of the note) 265. This is a consequential amendment to items 7 and 8. This note is no longer relevant as it is no longer possible to make a recognizance release order under section 19AR. Item 4 - Subsection 19APB(2) 266. The effect of section 19APB of the Crimes Act is that while a parole order or licence is in place the parolee or licensee is still considered to be serving their sentence. It is only when the parole or licence period ends without the parole order or licence having been revoked, or the person is otherwise discharged from imprisonment, that the person has completed their sentence. 267. Item 4 is a consequential amendment to item 5. The amendment ensures that where the parole or licence period ends before the revocation time determined under section 19AQ, subsection (2) operates to prevent the discharge of the sentence under subsection (1). 268. The proposed new subsection 19APB(2) applies where a determination as to revocation time under subsections 19AQ(1) or (2) occurs at a time after the end of the parole or licence period and has the effect that the person is taken not to have completed the sentence and remains liable to serve the balance of the outstanding sentence. Item 5 - Section 19AQ 269. This item amends and replaces the existing section 19AQ which provides that a parole order or licence is automatically revoked when the person is sentenced for a further offence committed while on parole or licence. A person on parole or licence who has their parole revoked is liable to serve the remainder of the outstanding sentence less any "clean street time". Clean street time refers to the period between when an offender is released into the community on parole or licence and the time their parole or licence is revoked following the commission of a new offence. The effect of automatic revocation based on the date of sentencing rather than at the time at which the further offence was committed has led to offenders receiving credit for time during which they have not been of good behaviour. Often it is also the case that the offender has no time left to serve because of the lapse of time between the commission of the offence and the date of sentencing. 270. The proposed new section 19AQ addresses this problem by requiring the court that sentences the person for the new offence to determine the time when the parole order or licence is taken to be revoked by determining when the new offence was committed. 271. Under proposed subsection 19AQ(1), if a person who is serving the balance of their sentence out in the community on a parole order commits a further federal, state or territory offence during the parole period, the court sentencing the person for the new offence must determine the time when the parole order is taken to have been revoked. However, if the new sentence is a sentence of, or aggregating, a period less than three months then a revocation time does not need to be determined by the court. This is because if the new offence is considered to be trivial, returning the person to prison to serve the balance of the outstanding sentence is not warranted. Instead the person would continue to be subject to the parole order. 53

272. Proposed subsection 19AQ(2) operates in the same way to proposed subsection 19AQ(1), but applies to licences instead of parole orders. 273. Proposed subsection 19AQ(3) ensures that the revocation time determined by the court is linked to commission of the offence. Paragraphs 19AQ(3)(b) and (c) allow a determination to be made even if the court cannot say definitively when the new offence was committed or where the offence formed part of an ongoing course of conduct. For example, conspiracy situations. 274. Proposed subsection 19AQ(4) outlines the amount of time a person is liable to serve in respect of the outstanding sentence that was the subject of the parole order or licence. This may be either the entire balance of the outstanding sentence (as provided by paragraph 19AQ(4)(a)) from the date of their release on parole or licence to the end of the parole or licence period or, if the court considers it appropriate having regard to the person's good behaviour, that period reduced by the period of "clean street time" (as provided by paragraph 19AQ(4)(b)) by deducting the period from the date of release to the date of revocation from the balance of the outstanding sentence. 275. Subsection 19AQ(5) mirrors the existing subsection 19AQ(6) and provides that revocation under this section does not occur where the new sentence imposed is a suspended sentence. Item 6 - Section 19AR (heading) 276. This item is a consequential amendment to Item 5 and ensures that the heading to section 19AR remains accurate following the change from revocation automatic on sentencing for a new offence to revocation occurring at a time determined by the court. Item 7 - Subsections 19AR(1) and (2) 277. This item repeals the existing subsections 19AR(1) and (2) and substitutes a new subsection 19AR(1) which removes the option previously available to the courts of setting a recognizance order if a person had their parole or licence revoked under section 19AQ. 278. The proposed subsection 19AR(1) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a federal offence. In this instance, the court imposing the new federal sentence must fix a single new non-parole period in respect of both the new sentence and the outstanding sentence, having regard to the total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply. Item 8 - Subsection 19AR(3) 279. This item repeals the existing subsection 19AR(3) and substitutes a new subsection which removes the option previously available to the courts of setting a recognizance order if a person had their parole or licence revoked under section 19AQ. 280. The proposed subsection 19AR(3) applies to a person serving a federal sentence who is later sentenced to another term of imprisonment for a state or territory offence. In this instance, the court imposing the new state or territory sentence must fix a single new non- parole period in respect of the outstanding Commonwealth sentence, having regard to the 54

total period of imprisonment that the person is liable to serve. The court is not required to fix a non-parole period if the circumstances in subsection 19AR(4) apply. Item 9 - Subsection 19AR(4) 281. This item repeals the existing subsection 19AR(4) and substitutes a new subsection which mirrors the existing provision but includes an additional instance where the court may decline to fix a non-parole period. 282. Paragraph 19AR(4)(b) provides that the court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence. This is because it is meaningless to set a non-parole period for the outstanding sentence if a person could not be released from custody to be under supervision in the community because they must continue to serve a state or territory sentence on which they are not yet eligible for release. Items 10 - 14 - Subsections 19AR(5), 19AR(6), 19AR(7) 283. This item is necessary because it will no longer be possible to make a recognizance order under section 19AR. Item 15 - Subsection 19AS(1) 284. This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing subsection 19AS(1) and substitutes a new subsection to reflect the changes made to section 19AQ. It does not impact how section 19AS operates. Item 16 - Subsection 19AS(2) 285. This item is a consequential amendment to item 15 which restructures subsection 19AS(1) Item 17 - Paragraphs 19AT(1)(a) and (b) 286. This item is a consequential amendment to item 5, which moves away from automatic revocation because of the imposition of a new sentence to court directed revocation. It repeals the existing paragraphs 19AT(1)(a) and (b) and substitutes a new subsection to reflect the changes made to section 19AQ. It does not impact how section 19AT operates. Item 18 - Subsection 19AW(2) 287. This item amends subsection 19AW(2) so that if a prescribed authority cannot complete the hearing immediately and issue a warrant for detention then they must issue a warrant for the person to be remanded into custody pending completion of the hearing. As the person's parole order or licence has been revoked, they no longer have legal authority to be in the community and must be returned to prison to continue serving their sentence. This previously was left to the discretion of the court. 55

Item 19 - Paragraph 19AW(3)(a) 288. This item amends paragraph 19AW(3)(a) to make it clear that the prescribed authority can only decline to fix a non-parole period if it is inappropriate to do so because of the serious nature of the breach of conditions that led to the revocation of the order or licence. This will ensure that paragraph 19AW(3)(a) is not read-down and used to avoid setting a custodial sentence. Item 20 - Subsection 20(6) 289. This is a consequential amendment to items 7 and 8 that is necessary as it is no longer possible for the court to set a recognizance order under section 19AR. Item 21 - Application provisions 290. This item sets out the application provisions for Schedule 14. 291. Sub item 1 provides that the proposed amendments in items 1, 4, 5 and 7-17 of this Schedule apply in relation to the revocation, on or after the commencement of this Bill, of a parole order or licence relating to a sentence imposed on a person before, on or after the commencement of this Bill. 292. Sub item 2 provides that the proposed amendment in item 2 applies in relation to fixing, on or after the commencement of this Bill, a non-parole period in respect of a sentence. These amendments will apply whether that sentence was imposed before, on or after the commencement of this Bill. 293. Sub item 3 provides that the proposed amendments in items 18 and 19 of this Schedule apply in relation to hearings begun on or after the commencement of this Schedule (whether the order revoking the relevant parole order or licence was made before, on or after that commencement). 294. The application of the proposed amendments in this manner is justified as it relates to the revocation of a parole order or license after the commencement of the Bill. The proposed amendments are also reasonable and necessary to ensure the continued protection of the community and that breaches of a parole order or release on license are adequately punished where appropriate. Schedule 15--Expanding the meaning of child abuse material and other consequential amendments 295. The Criminal Code and other Commonwealth legislation currently distinguish between "child abuse material" and "child pornography material". Attaching the term "pornography" to this material proves to be a barrier in conveying the seriousness and gravity of the offences depicted in that material, as well as the harm faced by the children in that material. The inference remains that "pornography" is associated with consenting subjects, which is entirely inappropriate given this behaviour involves the abuse and corruption of children. 56

296. Accordingly, this Bill proposes to repeal reference to "child pornography material" and reconstitute the current definitions of "child abuse material" and "child pornography material" into a single definition of "child abuse material". Part 1--Amendments Crimes Act 1914 Item 1 - Subsection 3(1) (definition of child pornography material) 297. This item amends section 3 of the Crimes Act to remove the words "child pornography material has the same meaning as in Part 10.6 of the Criminal Code". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 2 - Subsection 3(1) 298. This item inserts the definition of "child sexual abuse offence". This definition is relevant to the mechanics of the presumption against bail in Schedule 7 and the mandatory minimums in Schedule 6. 299. This definition includes the following offences: (a) a Commonwealth child sex offence; or (b) an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2017; or (c) an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010; or (d) a state or territory registrable child sex offence. 300. It ensures that repealed offences at a Commonwealth level are also captured as part of previous offences. Item 3 - Subsection 3(1) (subparagraph (a)(ii) of the definition of Commonwealth child sex offence) 301. This item amends section 3 of the Crimes Act to remove references to "child pornography material" in the definition of "Commonwealth child sex offence". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 57

Item 4 - Subsection 3(1) (subparagraphs (a)(iii) and (iv) of the definition of Commonwealth child sex offence) 302. This item amends section 3 of the Crimes Act to remove references to "child pornography material" in the definition of "Commonwealth child sex offence". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously covered by this definition to the definition of "child abuse material". Item 5 - Subsection 3(1) (note to the definition of Commonwealth child sex offence) 303. This item amends subsection 3(1) of the Crimes Act to remove the note to the definition of Commonwealth child sex offence. This amendment will remove the note, which was relevant at the time that the forfeiture provisions in the Crimes Act were introduced but is no longer used in relation to offences that were committed before the commencement of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010. Item 6 - Subsection 3(1) 304. Item 6 inserts the new definitions of "Commonwealth child sexual abuse offence" and "State or Territory registrable child sex offence". 305. The definition of "Commonwealth child sexual abuse offence" captures the offences which are subject to the mandatory minimum penalties under section 16AAB(a) (second or subsequent offence). It excludes offences which would ordinarily be captured by the mandatory minimum penalties in the first instance. 306. The proposed definition of "States or Territory registrable child sex offence" is intended to capture state and territory registrable child sex offences as a "previous offence" for the purposes of both the presumption against bail (Schedule 7), the mandatory minimum penalties (Schedule 6) and cumulative sentencing (Schedule 10). It is critical that state and territory child sexual abuse offences be captured to ensure that repeat offenders are treated consistently in applying the Commonwealth measures, whether or not their first offence was a state, territory or Commonwealth child sex offence. 307. The definition will include any offence where a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a state or territory for committing, and in respect of which a child was a victim, an intended victim, or the offending involved child abuse material. Section (b) of the definition clarifies that it is not intended to capture offences which would be registrable on an offender register, however described, that is not a child sexual abuse offence. Item 7 - Paragraph 15GE(2)(w) 308. This item amends paragraph 15GE(2)(w) to remove references to "child pornography material" and ensures that the paragraph is consistent with the terms used and defined in the Criminal Code. It is intended that this amended paragraph will operate so as to ensure that all offences relating to child abuse material in the Criminal Code that are punishable for a maximum penalty of imprisonment for 3 years or more, are classified as "serious 58

Commonwealth offences" for the purposes of the Crimes Act. Offences in the Criminal Code that were captured by this paragraph prior to this amendment will continue to be captured by the amended paragraph. Item 8 - Paragraph 15GE(3)(b) and (d) 309. This item amends paragraphs 15GE(3)(b) and (d) to remove references to "child pornography material". This amendment is consequential to item 24 which amends the heading of Subdivision B of Division 471 of the Criminal Code to remove reference to "child pornography material", and item 32 which amends the heading of Subdivision D of Division 474 of the Criminal Code to remove reference to "child pornography material". Item 9 - Paragraph 15Y(1)(cac) 310. This item amends paragraph 15Y(1)(cac) to remove references to "child pornography material". This amendment is consequential to item 14 which amends the heading of Division 273 of the Criminal Code to remove reference to "child pornography material". Item 10 - Part IE (heading) 311. This item amends the heading of Part IE to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition to the definition of "child abuse material" to the definition of "child abuse material". Item 11 - Paragraph 23ZA(b) 312. This item amends paragraph 23ZA(b) to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously covered by this definition to the definition of "child abuse material". Item 12 - Paragraph 23ZA(c) 313. This item amends paragraph 23ZA(c) to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 13 - Paragraph 23ZC(1)(c)(ii) 314. This item amends paragraph 23ZA(b) to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 59

Criminal Code Act 1995 Item 14 - Division 273 of the Criminal Code (heading) 315. This item amends the heading of Division 273 to remove reference to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 15 - Subsection 273.1(1) of the Criminal Code (note) 316. This item amends the note under subsection 273.1(1) to remove reference to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 16 - Subdivision B of Division 273 of the Criminal Code (heading) 317. This item amends the heading of Subdivision B of Division 273 to remove reference to "child pornography material". This amendment is consequential to items 30 and 31which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 17 - Section 273.5 of the Criminal Code 318. This item repeals the offence relating to "child pornography material" under section 273.5 and defences related to this offence under section 273.9. This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 319. Behaviour previously captured by the repealed offence under section 273.5 will now be captured by the offence in section 273.6. Item 18 - 273.7(1)(a) of the Criminal Code 320. Behaviour previously captured by the repealed offence under section 273.5 will now be captured by the offence in section 273.6. Item 19 - Subsections 273.7(2), (3), (5) and (7) of the Criminal Code 321. This item repeals subparagraphs that refer to the repealed offence detailed in item 17. This item is consequential to item 17 that repeals offences relating to "child pornography material" under sections 273.5 and defences related to these offences in section 273.9. 60

Item 20 - Section 273.8 of the Criminal Code 322. This item repeals references to the repealed offence detailed in item 17. This item is consequential to item 17 that repeals offences relating to "child pornography material" under section 273.5 and defences related to these offences in section 273.9. Item 21 - Subsections 273.9(1), (4) and (5) of the Criminal Code 323. This item repeals references to the repealed offence detailed in item 17. This item is consequential to item 17 that repeals offences relating to "child pornography material" under section 273.5. Item 22 - Paragraph 279.1(d) of the Criminal Code 324. This item repeals references to the repealed offence detailed in item 17. This item is consequential to item 17 that repeals offences relating to "child pornography material" under section 273.5. Item 23 - Subsection 470.4(1) (note) of the Criminal Code 325. This item amends the note under subsection 470.4(1) to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 24 - Subdivision B of Division 471 of the Criminal Code (heading) 326. This item amends the heading of Subdivision B of Division 471 to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 25 - Sections 471.16, 471.17 and 471.18 of the Criminal Code 327. This item repeals offences relating to "child pornography material" under sections 471.16 and 471.17 and defences related to these offences under section 471.18. This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 328. Behaviour previously captured by the repealed offences under section 471.16 and 471.17 will now be captured by the offences in sections 471.19 and 471.20 respectively. The defence relating to this behaviour that was previously provided for in section 471.18 will now be provided for in section 471.21. Items 26 to 28 - Section 471.22 of the Criminal Code 329. These items repeal subparagraphs that refer to the repealed offences detailed in item 25. These items are is consequential to item 25 that repeals offences relating to "child 61

pornography material" under sections 471.16 and 471.17 and defences related to these offences in section 471.18. Items 29 - Section 471.23(b) of the Criminal Code 330. This item repeals references to the repealed offences detailed in item 25. These items are consequential to item 25 that repeals offences relating to "child pornography material" under sections 471.16 and 471.17 and defences related to these offences in section 471.18. Item 30 - Section 473.1 of the Criminal Code (definition of child abuse material) 331. This item expands the definition of "child abuse material" to include the material previously covered by the definition of "child pornography material" (this definition is repealed in item 31). Expanding the definition of "child abuse material" to include all the material covered by "child pornography material" will ensure that "child abuse material" captures the sexual abuse, and depictions or representation of the sexual abuse of children. This item makes changes to terminology but does not have any net effect on the scope of material or conduct criminalised under the Criminal Code. Item 31 - section 473.1 of the Criminal Code (definition of child pornography material) 332. This item repeals the definition of "child pornography material". The material covered by the definition of "child pornography material" will be amalgamated into the definition of "child abuse material" in item 30. Amalgamating the two definitions will remove the current distinction in the Criminal Code between "child abuse material" and "child pornography material". 333. This amendment updates Commonwealth legislation to reflect changes to international language norms and the gravity of material that depicts child sexual abuse. The use of the word "pornography" does not convey the seriousness or gravity of the criminal activity that is depicted in material that depicts child sexual abuse, nor the harm that is inflicted on the children involved. The increase in the availability of legal adult pornography online has resulted in the reduction of the social stigma that was previously associated with the term "pornography". "Pornography" is often associated with consenting subjects, which is inappropriate given that this behaviour involves the abuse of children who cannot provide consent. Item 32 - Subdivision D of Division 474 of the Criminal Code (heading) 334. This item amends the heading of Subdivision D to remove references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". Item 33 - Sections 474.19, 474.20 and 474.21 of the Criminal Code 335. This item repeals sections 474.19, 474.20 and 474.21 in the Criminal Code. This amendment is consequential to items 30 and 31which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". These 62

sections will be repealed to ensure that all references to "child pornography material" in the Criminal Code are removed. 336. Behaviour previously captured by the repealed offences under section 474.19 and 474.20 will now be captured by the offences for "child abuse material" in sections 474.22 and 474.23 respectively. The defences relating to this behaviour that were previously provided for in section 474.21 will now be provided for in section 474.24. Item 34 - Paragraph 474.24A(1)(a) of the Criminal Code 337. This item amends subsection 474.24A(1)(a) of the Criminal Code by removing "one or more" and substituting it with "either". This amendment is consequential to item 35 which repeals subparagraphs 474.24A(1)(a)(i) and (ii) of the Criminal Code. Item 35 - Subparagraphs 474.24A(1)(a)(i) and (ii) of the Criminal Code 338. This item repeals subparagraphs 474.24A(1)(a)(i) and (ii) to remove the subparagraphs that reference sections 474.19 and 474.20 that reference "child pornography material". This amendment is consequential to item 33 which repeals sections 474.19 and 474.20 of the Criminal Code. Item 36 - Subsections 474.24A(2), (3), (5) and (7) of the Criminal Code 339. This item omits references to "474.19" and "474.20" in subsections 474.24A(2), (3), (5) and (7) of the Criminal Code. This amendment is consequential to item 33 which repeals sections 474.19 and 474.20 of the Criminal Code. Item 37 - Paragraph 474.24B(b) of the Criminal Code 340. This item omits references to "474.19" and "474.20" in paragraph 474.24B(b) of the Criminal Code. This amendment is consequential to item 33 which repeals sections 474.19 and 474.20 of the Criminal Code. Item 38 - Paragraph 474.25(b) of the Criminal Code 341. This item repeals paragraph 474.25(b) of the Criminal Code and substitutes it with a paragraph without references to "child pornography material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in section 473.1 of the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material" in section 473.1 of the Criminal Code. Customs Act 1901 Item 39 - Paragraph 233BAB(1)(h) 342. This item amends paragraph 233BAB(1)(h) to remove the reference to "child pornography". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". While the Customs Act does not rely on the definitions in the Criminal Code, this 63

amendment ensures consistency across Commonwealth legislation to references of this type of material. 343. Given the amendment of subsection 233BAB(4) of the Customs Act by item 40, this amendment will ensure that the amended paragraph 233BAB(1)(h) will continue to capture the same goods that were previously captured under the definition of "child pornography". Item 40 - Subsection 233BAB(3) 344. This item repeals subsection 233BAB(3) which defines "child pornography". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 345. The repeal of subsection 233BAB(3) will require consequential amendments to be made to the Customs Regulations 2015 to remove obsolete reference to 'child pornography'. Item 41 - Subsection 233BAB(4) 346. This item amends subsection 2323BAB(4) to add those materials that were covered by the definition of "child pornography" to the definition of "child abuse material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". 347. This amendment will ensure that the amended paragraph 233BAB(1)(h) will continue to capture the same goods that were previously captured under the definition of "child pornography" which is repealed by item 31 above 348. The change in definition will not impact ongoing prosecutions instituted before the commencement of the Bill. Further explanation of this issue is set out in item 49 below. Item 42 - Subsection 233BAB(4A) 349. This item is consequential to item 40 which repeals subsection 233BAB(3) and removes a redundant reference to subsection (3). Telecommunications (Interception and Access) Act 1979 Item 43 - Subsection 5D(3B) (heading) 350. This item amends the heading of Subsection 5D(3B) to remove references to "child pornography" and substitutes it with "child abuse material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". While the TIA Act does not currently rely on the definitions in the Criminal Code, this amendment ensures consistency across Commonwealth legislation to references of this type of material. 64

Item 44 - Subsection 5D(3B)(b)(i) 351. This item amends paragraphs 5D(3B)(b)(i) to remove references to "child pornography" and substitute it with "child abuse material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". This amendment will ensure consistency across Commonwealth legislation to references of this type of material Item 45 - Subsection 5D(3B)(b)(ii) 352. This item amends paragraphs 5D(3B)(b)(ii) to remove references to "child pornography" and substitute it with "such material". This amendment is consequential to items 30 and 31 which repeal the definition of "child pornography material" in the Criminal Code and add material previously captured in the definition of "child pornography material" to the definition of "child abuse material". This amendment will ensure consistency across Commonwealth legislation to references of this type of material. Part 2 - Application and transitional provisions Item 46 - Application and transitional provisions (Controlled operations) 353. This item inserts an application provision for amendments made under this Bill to paragraph 15GE(2)(w) of the Crimes Act, ensuring that the Bill only affects controlled operations authorised on or after the commencement date. This amendment is consequential to item 7 in Part 1 of Schedule 15 which removes references to "child pornography material" in paragraph 15GE(2)(w) ensuring that the paragraph is consistent with the terms used and defined in the Criminal Code. Item 47 - Application and transitional provisions (Serious Offences) 354. This item inserts an application provision for amendments made under this Bill to paragraph subsection 5D(3B) of the Telecommunications (Interception and Access) Act 1979 ensuring that the amendments effect offences committed on or after the commencement date. This amendment is consequential to items 44 and 45 which remove references to "child pornography" in paragraph 5D(3B)(b) ensuring that the paragraph is consistent with the terms used and defined in the Criminal Code. Item 48 - Aggravated offences involving conduct on 3 or more occasions and 2 or more people 355. Item 48 is a table that sets out the transitional effects of amalgamating the definitions of "child abuse material" and "child pornography material" in the aggravated offences involving conduct on 3 or more occasions and 2 or more people (sections 273.7, 471.22 and 474.24A) and the alternative verdict provisions (sections 273.8, 471.23 and 474.24B). 356. This item ensures that conduct which would have constituted an offence before the commencement of this Bill can still be considered for the aggravated offences relating to child abuse material. 65

Item 49 - Section 7 of the Acts Interpretation Act 1901 not limited 357. This Schedule does not limit section 7 of the Acts Interpretation Act 1901, which is concerned with the effect of repeal, or amendment, of an Act as it applies to the definitional and consequential changes. 358. This item will clarify that, despite the repeal of the reference to "child pornography material" in Schedule 15, a person can still be criminally responsible for an offence committed against the repealed offences where that conduct occurred before the commencement of the Bill. 359. This item also ensures that definitional changes do not affect prosecutions commenced before the commencement of the Bill. For example, the repeal of the existing definition of child pornography in the Customs Act and its proposed reconstitution in a single definition will not affect the ongoing conduct of prosecutions in relation to the importation of child pornography instituted before the commencement of the Bill. 66

[Index] [Search] [Download] [Bill] [Help]