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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
CRIMES LEGISLATION AMENDMENT (ENHANCED CHILD PROTECTION FROM PREDATORY
TOURISM OFFENCES) BILL 2008
EXPLANATORY MEMORANDUM
(Senator Cory Bernardi)
CRIMES LEGISLATION AMENDMENT (ENHANCED CHILD PROTECTION FROM PREDATORY
TOURISM OFFENCES) BILL 2008
OUTLINE
The Crimes Legislation Amendment (Enhanced child protection from predatory
tourism offences) Bill (the Bill) would:
. amend the definition of 'serious and organised crime' in the
Australian Crime Commission Act 2002 to expressly include child sex
carriage service offences
. repeal Part IIIA of the Crimes Act 1914 dealing with child sex tourism
and insert these provisions into the Criminal Code Act 1995 with some
updating of the language and structure of the offences
. add a preparatory offence to capture the behaviour of people who are
preparing to commit a child sex tourism offence
. add new child sex tourism offences to capture the procuring and
'grooming' of a child for the purposes of child sex overseas
. improve the operation of carriage service offences for grooming
persons under 16 years of age for sexual activity
. add new offences that would make it illegal for Australian citizens
and residents to possess, control, produce, distribute or obtain child
pornography and/or abuse material while overseas, and
. address a gap in the current legislative regime by providing for the
forfeiture of child pornography and child abuse material, and
equipment containing such material, that is used in the commission of
Commonwealth child sex offences.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
NOTES ON CLAUSES
List of abbreviations used
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
AFP Australian Federal Police
the Bill Crimes Legislation (Enhanced child protection from predatory
tourism offences) Bill 2008
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
Clause 1: Short Title
Clause 1 is a formal clause which provides that the Bill will be cited as
the Crimes Legislation Amendment (Enhanced child protection from predatory
tourism offences) Act 2008 when it is enacted.
Clause 2: Commencement
Clause 2 sets out when various part of the Bill commence.
Clauses 1-3 of the Bill (the short title, commencement and Schedules
provisions) will commence on the day the Bill receives Royal Assent.
Item 1 of Schedule 1 of the Bill (which amends the ACC Act) will commence
on Royal Assent.
Items 2-22 of Schedule 1 of the Bill will commence 28 days after
Royal Assent. The purpose of delayed commencement is to allow time for
those affected to become familiar with the scope of the new child sex
tourism offences and offences involving child pornography material or child
abuse material outside Australia.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedule to amend Acts simply by
including amendments under the title of the relevant Act.
SCHEDULE 1
Overview
Items 1 - 22 would:
. amend the definition of 'serious and organised crime' in the
Australian Crime Commission Act 2002 to expressly include child sex
carriage service offences
. repeal Part IIIA of the Crimes Act 1914 dealing with child sex tourism
and insert these provisions into the Criminal Code Act 1995 with some
updating of the language and structure of the offences
. add a preparatory offence to capture the behaviour of people who are
preparing to commit a child sex tourism offence
. add new child sex tourism offences to capture the procuring and
'grooming' of a child for the purposes of child sex overseas
. improve the operation of carriage service offences for grooming
persons under 16 years of age for sexual activity
. add new offences that would make it illegal for Australian citizens
and residents to possess, control, produce, distribute or obtain child
pornography and/or abuse material while overseas, and
. address a gap in the current legislative regime by providing for the
forfeiture of child pornography and child abuse material, and
equipment containing such material, that is used in the commission of
Commonwealth child sex offences.
Moving offences to Criminal Code
The child sex tourism provisions that are currently located in Part IIIA of
the Crimes Act are being moved into the Criminal Code. This is in
accordance with the general transfer of criminal offences from the
Crimes Act to the Criminal Code and the modernisation of the drafting of
offences as this is done.
The notes on clauses in this explanatory memorandum identify the
corresponding Crimes Act provision (where applicable) to be replaced by the
proposed Criminal Code provision. In addition, a comparative table is set
out in the notes to Item 8 of the Bill.
New preparatory offences
The new preparatory offences capture the behaviour of people who are
preparing to commit an offence under proposed Division 272. The offences
capture a wide range of preparatory behaviour. The inclusion of an offence
of this kind will enable the person to be arrested prior to a person under
16 being harmed. The offence of engaging in preparatory acts applies both
inside and outside Australia and addresses a gap in the coverage of the
existing child sex tourism offences.
New grooming and procuring offences
The object of the new grooming and procuring offences is to capture people
who groom or procure a person under 16 with the intention that the person
under 16 will engage in, or submit to sexual activity. These offences will
capture the 'grooming' of a young person in a foreign country. The
proposed amendments address a gap in legislation.
The proposed offences are modelled on existing offences in sections 474.26
and 474.27 of the Criminal Code, which deal with the use of a carriage
service to procure or groom a person under 16 years of age for sexual
activity. However, the new offences are not limited to conduct involving
the use of a carriage service.
New offences for the possession, production, distribution or obtaining
child pornography and/or child abuse material overseas
New provisions will make it an offence to possess, control, produce,
distribute or obtain child pornography and/or child abuse material while
overseas. The proposed offences would apply to Australian citizens or
residents of Australia who may be living, travelling and/or working outside
Australia. This is a gap in the current legislation highlighted by recent
investigations. Such conduct is offensive and if it occurred within
Australia, it would be captured by either Commonwealth or State offences
depending on the circumstances. These proposed offences cover the
situation where a foreign country does not have specific laws to deal with
this behaviour or is unwilling or unable to prosecute.
Amendments to the ACC Act
Item 1: Definition of 'serious and organised crime'
The definition of 'serious and organised crime' in subsection 4(1) of the
ACC Act lists the offences for which the ACC may obtain an authorisation to
conduct an intelligence operation or an investigation. Paragraph 4(1)(d)
of the definition allows offences to be added to that list by regulation.
On 1 December 2006, offences relating to child pornography and child abuse
were added to the definition of 'serious and organised crime' by the
Australian Crime Commission Amendment Regulations 2006 (No 4) (the
2006 Regulations). This allowed the ACC to conduct an intelligence
operation or investigation into networks of people using a carriage service
to exchange child pornography or child abuse material, or to procure or
groom persons under 16 for sexual activity.
The purpose of Item 1 is to amend the definition of 'serious and organised'
in subsection 4(1) of the ACC Act so that it reflects the changes made to
that definition by the 2006 Regulations. Item 1 therefore makes no
substantive changes to the law. Its purpose is to ensure that the changes
already made by regulations are subjected to full Parliamentary scrutiny
and become apparent on the face of the Act. Whilst it is appropriate that
the list of offences for which the ACC can conduct intelligence operations
or investigations can be extended by regulation, it is also appropriate for
a change of this nature to be enshrined in the Act in due course.
The offences in question cover: using a carriage service to access or
distribute child pornography material or child abuse material (sections
474.19 and 474.22), possessing, controlling, producing, supplying or
obtaining child pornography material or child abuse material for use
through a carriage service (sections 474.20 and 474.23) and using a
carriage service to procure or 'groom' persons under 16 for sexual activity
(sections 474.26 and 474.27).
amendments to the crimes Act
FORFEITURE OF CHILD ABUSE OR CHILD PORNOGRAPHY MATERIAL
Item 2: Part IA of the Crimes Act - forfeiture of child abuse or child
pornography material
Item 2 would amend the Crimes Act 1914 to provide a scheme for the
forfeiture of child abuse and child pornography material or an article that
contains such material, used in the commission of a Commonwealth child sex
offence.
At present, child pornography or child sex abuse material or articles
containing such material can only be forfeited after following the full
process under the Proceeds of Crime Act 2002.
Such material is clearly inappropriate to return to the owner, so the
amendments create a streamlined process for forfeiture by order of a court
either immediately after a conviction or following a separate hearing.
Proposed section 10: Forfeiture of child abuse or child pornography
material used in the commission of sexual offences against children.
Proposed section 10 requires a court to make a forfeiture order in two
circumstances. The first circumstance is where a person has been found
guilty of a Commonwealth child sex offence (subsection 10(1)). Subsection
10(1) applies where a person is convicted of an offence or where the
prosecution succeeds in establishing a persons guilt but the Court makes an
order under section 19B, which has the effect for example of the charge
being dismissed or the person discharged without proceeding to conviction.
The second circumstance is where on application of a constable or
prosecutor, a court determines on the balance of probabilities that a
Commonwealth child sex offence has been committed (subsection 10(2)).
The child sex offences to which the proposed section 10 applies are:
section 474.19 (using a carriage service for child pornography material),
section 474.20 (possessing, controlling, producing, supplying or obtaining
child pornography material for use through a carriage service),
section 474.22 (using a carriage service for child abuse material), section
474.23 (possessing, controlling, producing, supplying or obtaining child
abuse material for use through a carriage service provider), section 474.26
(using a carriage service to procure persons under 16 year of age), the
offences in Division 272 (sexual offences outside Australia) and the
offences in Division 273 (offences involving child pornography material or
child abuse material outside Australia).
In deciding whether a Commonwealth child sex offence has been committed on
the balance of probabilities the court does not have to form the view that
a particular person committed the offence or identify the specific offence
believed to have been committed. An order under subsection 10(2) is not
directed at making a finding against a person but rather at the fact that
the material in question should be forfeited.
If a person is found guilty of a Commonwealth child sex offence or the
court determines that such an offence has been committed on the balance of
probabilities, the court must order the forfeiture of any child pornography
or child abuse material and any thing capable of containing such material,
such as a computer or data storage device.
The term 'child pornography material' has the same meaning as in section
473.1 of the Criminal Code. The definition includes material that depicts
or describes a child engaged in sexual activity in a way that reasonable
persons would regard as being, in all the circumstances, offensive. The
term 'child abuse material' has the same meaning as in section 473.1 of the
Criminal Code. This definition includes material that depicts or describes
a child who is a victim of torture, cruelty or physical abuse in a way that
reasonable persons would regard as being, in all the circumstances,
offensive.
Proposed section 11: Applications for an order for forfeiture under
subsection 10(2)
Proposed section 11 sets out the procedure for applying for a forfeiture
order under subsection 10(2). This section specifies who can make the
application, namely a constable or prosecutor, and the appropriate court to
deal with the application. An application must be supported by an
affidavit addressing the matters set out in proposed subsection 10(2).
The section also imposes a requirement on the applicant to notify an owner
or person with a legal right to custody or control the material or article
of the application. A person may choose to attend the hearing of the
application, and make representations if invited to do so by the court.
However, a court may still make an order where the person notified fails to
appear.
Proposed section 12: Effect of forfeiture under section 10
Proposed section 12 clarifies that upon the making of a forfeiture order,
the Commonwealth becomes the rightful owner of the forfeited material or
article and where it does not have possession of the material, may take
possession without a warrant.
Proposed section 12 also protects forfeited material from being destroyed
for at least three months following the making of the order to ensure that
the material or article is not required for the purposes of any other
Australian investigation or proceeding. On the expiry of three months, if
the Commissioner for the Australian Federal Police is satisfied that the
material is not needed for any Australian investigation or proceeding, he
may destroy it or deal with it as he deems appropriate.
Proposed section 12A: Copies of articles forfeited under section 10
Proposed section 12A entitles the owner or person with a legal right to
custody or control of the forfeited article a copy of material contained on
the equipment or disk where the material is capable of being readily
copied, and copied without incorporating the offensive material. The
Commonwealth is not obliged to provide copies where the provision of the
copies may risk the safety of a person or impact on an investigation or
prosecution.
Proposed section 12B: Compensation for articles forfeited under section 10
Proposed section 12B makes the Commonwealth liable to pay compensation for
the replacement value of electronic equipment such as a computer, or data
storage device (as defined in the provision). The Commonwealth's liability
to pay compensation only extends to the owner or person with a legal right
to possession of the equipment or storage device and only where that person
has not been found guilty of the Commonwealth child sex offence. Liability
is limited to the reasonable cost of replacing the electronic equipment
and/or data storage device. Where a person does not agree with the amount
of compensation offered by the Commonwealth, they may apply to a court to
determine what is a 'reasonable compensation', in line with the standard
formula for provisions of this kind.
amendments to the crimes act and criminal code
child sex tourism and child pornography overseas
Item 3 to Item 7: Part IAD of the Crimes Act
Items 2 to 6 ensure that the special protections for children in
proceedings for sexual offences set out in Part IAD of the Crimes Act will
continue to be available in child sex tourism prosecutions notwithstanding
the provisions moving to the Criminal Code. The special protections will
also apply to proceedings for offences against proposed Division 273
(offences involving child pornography material or child abuse material
outside Australia).
Item 8: Part IIIA of the Crimes Act
This item repeals Part IIIA of the Crimes Act. The offences within this
Part are moved to the Criminal Code (see Item 9) as indicated by the table
below.
|Crimes Act |Criminal Code |
|Section 50BA |Section 272.7 |
|Section 50BB |Section 272.8 |
|Section 50BC |Section 272.9 |
|Section 50BD |Section 272.10 |
|Section 50DA |Section 272.15 |
|Section 50DB |Section 272.16 |
Item 9: At the end of Chapter 8 of the Criminal Code
Item 9 inserts Divisions 272 and 273 into the Criminal Code. Division 272
deals with the child sex tourism offences and related provisions and
Division 273 deals with offences involving child pornography material or
child abuse material outside Australia.
Proposed Division 272 - Child sex offences outside Australia
Proposed Subdivision A - Preliminary
Proposed section 272.1: Definitions
Proposed section 272.1 moves the current definition provisions contained in
section 50AA of the Crimes Act to the Criminal Code for the purpose of
defining the words and expressions used in proposed Division 272:
. "act of indecency" is defined in proposed section 272.2
. "induce" means to induce by threats, promises or otherwise
. "offence" for the purpose of the Division, has the extended meaning
provided in proposed section 272.4, and
. "sexual intercourse" is defined in proposed section 272.3
The definition of "vagina" is at proposed subsection 272.3(3). Current
subsection 50AA(2) of the Crimes Act, which provides for the extension of
criminal responsibility for offences, has been incorporated in proposed
section 272.4.
Proposed section 272.2: Meaning of act of indecency
This proposed section is based upon section 50AB of the current Crimes Act.
Proposed section 272.2 provides that, for the purpose of the Criminal
Code, an act of indecency is an act of a sexual nature involving the human
body, or bodily actions or functions, which is so unbecoming or offensive
that it amounts to a gross breach of ordinary contemporary standards of
decency and propriety in the Australian community.
The question of whether or not an act amounts to an act of indecency is a
question of fact for the court to decide.
In order to avoid any doubt, proposed section 272.2 provides that the
meaning of an act of indecency includes an indecent assault.
Proposed section 272.3: Meaning of sexual intercourse
This proposed section is based upon section 50AC of the current Crimes Act.
Proposed section 272.3 defines the term "sexual intercourse". As the
definition is exhaustive, conduct of a sexual nature which does not fall
within any of the conduct listed in proposed paragraphs 272.3(1)(a)-(e)
will not amount to sexual intercourse for the purposes of the offences that
use that term (although the conduct may amount to an act of indecency).
The definition of sexual intercourse includes the penetration of the vagina
or anus of a person by any part of the body of another person, the
penetration of the vagina or anus of a person, carried out by another
person by an object, fellatio and cunnilingus.
Proposed subsection 272.3(2) makes it clear that acts carried out for a
proper medical, hygienic or law enforcement purpose will not amount to
sexual intercourse for the purposes of the definition.
Proposed subsection 272.3(3) contains the definition of "vagina" based on
the definition in section 50AA of the Crimes Act.
Proposed section 272.4: Extension of criminal responsibility
Section 6 of the Crimes Act and Part 2.4 of the Criminal Code extend
criminal responsibility for all Commonwealth offences and operate to
automatically provide for ancillary offences such as being an accessory
after the fact, attempting to commit an offence or inciting the commission
of an offence.
Because proposed subdivision C provides for offences of benefiting from,
encouraging or preparing to commit a child sex tourism offence, the
application of the extensions of criminal responsibility in section 6 of
the Crimes Act and Part 2.4 of the Criminal Code is modified.
For example, proposed subsection 272.4(3) bars the operation of
section 11.1 of the Criminal Code because liability for attempt is
incompatible with the procuring and grooming offences in proposed
sections 272.11 and 272.13. The incompatibility arises from the fact that
the proposed offences are themselves a preparatory crime - they are
committed in the preparation of actual sexual abuse. An equivalent
provision is contained in subsection 474.28(10) which provides that it is
not an attempt to commit a procuring or grooming offence using a carriage
service in sections 474.26 and 474.27. Similarly, proposed
subsection 272.4(3) also bars the operation of section 11.1 in relation to
the preparatory offence in proposed section 272.19.
In another example, proposed subsection 272.4(4) bars the operation of
section 11.4 of the Criminal Code in relation to proposed section 272.16
which provides for an offence of encouraging the commission of an offence.
As the definition of encouraging includes inciting, the application of
section 11.4 is not necessary.
Proposed section 272.5: Who can be prosecuted for an offence committed
overseas
This proposed section is based upon section 50AD of the current Crimes Act.
This proposed section defines the persons who may be prosecuted under
Division 272 for offences committed outside Australia. They are persons
who, at the time of the offence, are:
. Australian citizens
. residents of Australia
. a body corporate under Australian law, or
. a body corporate that carries on its activities principally in
Australia.
The purpose of this section is to avoid extending the reach of the laws to
matters not properly the subject of Australian law enforcement activity.
Proposed section 272.6: Saving of other laws
This proposed section, based upon section 50GA of the Crimes Act, makes it
clear that Division 272 does not limit or exclude the operation of any
other law of the Commonwealth or any law of a State or Territory.
Proposed Subdivision B - Sexual offences against children overseas
Proposed section 272.7: Sexual intercourse with person under 16
This proposed section is based upon section 50BA of the current Crimes Act.
The proposed section makes it an offence for an Australian citizen or
resident to engage in sexual intercourse (as defined in proposed section
272.3) with a person under the age of 16 years, whilst outside Australia.
The maximum penalty for the offence is 17 years imprisonment which is the
same maximum penalty that applies to section 50BA of the current
Crimes Act.
In this offence, absolute liability applies to the location of the conduct
and the fact that the person is under 16. This means that the prosecution
only needs to prove that the conduct occurred outside Australia, and not
that the defendant intended, or was reckless, to that fact. Similarly, it
means that the prosecution only needs to prove that the person is under 16
and not that the defendant intended, or was reckless to that fact. The use
of absolute liability for this offence mirrors the use of absolute
liability for the offence in section 50BA of the current Crimes Act.
The application of absolute liability is appropriate because the issue of
whether the person intended to engage in the conduct in Australia or
overseas is not central to their culpability. It is appropriate to
penalise a person for such conduct irrespective of their knowledge or
intention as to where the conduct occurs.
The application of absolute liability to the fact that the person is
under 16 is appropriate because the crime of child sex is so serious that
the onus is on a person having sexual intercourse to be confident that the
other person is over 16 years of age. Furthermore, a defence based on
belief about age is available in proposed section 272.13.
Proposed section 272.8: Inducing person under 16 to engage in sexual
intercourse
This proposed section is based upon section 50BB of the current Crimes Act.
The proposed section makes it an offence for a person to induce a person
under 16 to engage in sexual intercourse (as defined in proposed section
272.3) with a third person, in the presence of the first person whilst
outside Australia. For an offence to be committed under this provision the
person under 16 must actually engage in sexual intercourse with the third
person. The maximum penalty for the offence is 17 years imprisonment which
is the same maximum penalty that applies to section 50BB of the current
Crimes Act.
Absolute liability applies to the proposed offence in section 272.8 in the
same way, and for the same reasons, as outlined above in
proposed section 272.7. The use of absolute liability in proposed
section 272.8 mirrors the use of absolute liability in section 50BB of the
current Crimes Act. The defence based on belief about age in proposed
section 272.13 also applies to proposed section 272.8.
Proposed section 272.9: Sexual conduct involving person under 16
This proposed section is based upon section 50BC of the current Crimes Act.
This proposed section makes it an offence for an Australian citizen or
resident, whilst outside Australia, to:
. commit an act of indecency on a person who is under 16
. submit to an act of indecency committed by a person who is under 16
. commit an act of indecency in the presence of a person who is under 16
with the intention of deriving gratification from the latter's
presence during the act
. submit to an act of indecency by another person that is committed in
the presence of a person who is under 16 with the intention of
deriving gratification from the latter's presence during the act; or
. engage in sexual intercourse with another person in the presence of a
person who is under 16 with the intention of deriving gratification
from the latter's presence during intercourse.
An "act of indecency" is defined in proposed section 272.2.
The penalty for all of the offences in proposed section 272.9 is 15 years
imprisonment. The maximum penalty for the sexual conduct offences in
Part IIIA of the Crimes Act is 12 years imprisonment.
The child sex offence scheme in Part IIIA of the Crimes Act provides a
distinction between the maximum penalty for sexual intercourse with a child
(17 years) and sexual conduct with a child (12 years). The child sex
offence scheme in proposed Division 272 also provides a distinction between
the maximum penalty for sexual intercourse with a child (17 years), sexual
conduct with a child (15 years), procuring a child for sexual activity (15
years) and grooming a child for sexual activity (12 years).
The penalty for sexual conduct with a child has been increased from
15 years imprisonment to reflect the seriousness of the offence and to
ensure consistency with penalties for existing offences of a similar kind
or seriousness. For example, the maximum penalty for using a carriage
service for procuring a child for sexual activity in section 474.26 of the
Criminal Code is 15 years imprisonment.
In the offences for proposed section 272.9, absolute liability applies to
the location of the conduct, the fact that the person is under 16, and,
with the exception of the offence in proposed subsection 272.9(5), the
physical element of circumstance that the act of indecency is, in fact, an
act of indecency. This means that the prosecution only needs to prove that
the conduct occurred outside Australia, and not that the defendant
intended, or was reckless, as to that fact. Similarly, it means that the
prosecution only needs to prove that the person is under 16 and not that
the defendant intended, or was reckless as to that fact. The use of
absolute liability in proposed section 272.8 mirrors the use of absolute
liability in section 50BC of the current Crimes Act.
The application of absolute liability is appropriate because the issue of
whether the person intended to engage in the conduct in Australia or
overseas is not central to their culpability. It is appropriate to
penalise a person for such conduct irrespective of their knowledge or
intention as to where the conduct occurs.
The application of absolute liability to the fact that the person is
under 16 is appropriate because the crime of sexual conduct with a child is
so serious that the onus is on a person engaging in sexual conduct to be
confident that the other person is over 16 years of age. Furthermore, a
defence based on belief about age is available in proposed section 272.13.
The application of absolute liability to the physical element of
circumstance that the act of indecency referred to in proposed subsections
(1), (2), (3) and (4) is appropriate as an act of indecency, as defined in
section 272.2, is determined by reference to ordinary contemporary
standards of decency and propriety in the Australian community rather the
intention, knowledge, recklessness or negligence of the alleged offender.
A person should not escape liability because they view as acceptable sexual
conduct with a child that the community would view as a gross breach of
standards of decency and propriety. While the prosecution will need to
establish that the person intended to commit an act, the question of
whether the act was accompanied by the circumstance that it was an act of
indecency is one of fact to be determined by the court by reference to
community standards.
Proposed section 272.10: Inducing person under 16 to be involved in sexual
conduct
This proposed section is based upon section 50BD of the current Crimes Act.
Proposed subsection 272.10(1) makes it an offence for a person to induce a
person under the age of 16 years to:
. commit an act of indecency, outside Australia and in his/her
presence, but not upon him or her
. submit to an act of indecency outside Australia and in his/her
presence, but which is not committed by or upon him or her, or
. to be present while a third person commits an act of indecency
outside Australia and in his or her presence, but which is not
committed upon him or her.
The maximum penalty for the offence is 15 years imprisonment. The maximum
penalty has been increased from 12 to 15 years for the reasons outlined in
relation to proposed section 272.9.
Proposed subsection 272.10(2) makes it an offence for a person to induce a
person under 16 to be present while a third person engages in sexual
intercourse with a fourth person outside Australia and in the presence of
the first person. The maximum penalty for the offence is 15 years
imprisonment.
In these offences, absolute liability applies to the location of the
conduct, the fact that the person is under 16, and, for the proposed
offence in subsection 272.10(1), the physical element of circumstance that
the act of indecency is, in fact, an act of indecency.
Absolute liability applies to the offence in proposed section 272.10 in the
same way, and for the same reasons, as outlined above in
proposed section 272.9. The use of absolute liability in proposed
section 272.9 mirrors the use of absolute liability in section 50BD of the
current Crimes Act. The defence based on belief about age in proposed
section 272.13 also applies to proposed section 272.10.
Proposed section 272.11: Engaging in conduct to procure persons under 16
years of age
These new proposed offences capture the procuring of a person under 16 for
sexual activity outside Australia. The intention of the offences is to
capture people who procure a person under 16 with the intention that the
person under 16 will engage in sexual activity. These proposed amendments
address a gap in the current legislation.
The proposed offences are modelled on existing offences in section 474.26
of the Criminal Code, which deal with the use of a carriage service to
procure a person under 16 for sexual activity, but are not limited to
conduct involving the use of a carriage service.
The maximum penalty for these offences is 15 years imprisonment. This
penalty is based upon the current offences in section 474.26 for using a
carriage service to procure a child for sexual activity.
Example: P1 comes face-to-face with P2, a person under 16, and tries to
procure P2 to engage in sexual intercourse outside Australia, for
example, by offering P2 money.
The definition of 'procure' currently contained in subsection 474.28(11) of
the Criminal Code will be moved to the Dictionary of the Criminal Code by
Items 12 and 14 of this Schedule. Accordingly, the definition will apply
to offences in this proposed Division. This definition, which is not
exhaustive, provides that procuring a person in relation to sexual activity
includes to encourage, entice or recruit the person in relation to that
activity or to induce the person (whether by threats, promises or
otherwise) in relation to that activity.
The definition of 'sexual activity' currently contained in
subsection 474.28(1) will be moved to the Dictionary of the Criminal Code
by Items 12 and 15 of this Schedule. Accordingly, the definition will
apply to offences in this proposed Division. This definition, which is
exhaustive, provides that sexual activity means sexual intercourse, an act
of indecency or any other activity of a sexual or indecent nature that
involves the human body, or bodily actions or functions (whether or not
that activity involves physical contact between people).
Proposed subsection 272.12(1) covers a range of scenarios including where
the defendant intends to procure a person under 16 to engage in sexual
activity with the defendant and where the defendant intends to procure the
person under 16 to submit to sexual activity committed by the defendant.
It also covers situations where the defendant is intending to procure the
person under 16 to be present while the defendant engages in, or submits
to, sexual activity in front of the person under 16.
The conduct captured by proposed subparagraph 272.11(1)(b)(ii) would
include where the person under 16 is present while the defendant commits an
act of indecency (either on themselves or on a third person), submits to an
act of indecency (committed by a third person) or has sexual intercourse
with a third person.
Example: P1 is in Australia and sends an e-mail to P2, a person under
16, who is in a foreign country. The e-mail tries to persuade P2 to
engage in sexual intercourse with P1 at a future date, for example by
offering them money. P1 can be found guilty of the offence even though
sexual intercourse did not actually occur.
Example: P1 comes face-to-face with P2, a person under 16 and tries to
persuade P2 to be present with P1 at a future date while P1 has sexual
intercourse with another person, for example by offering P2 money. P1
can be found guilty of the offence even though the sexual activity did
not actually occur.
Proposed subsection 272.11(2) operates in the same way as the proposed
offence in 272.11(1) subject to one key difference: the defendant engages
in conduct with the intention of procuring the person under 16 to engage in
sexual activity with another person (rather than the defendant). It also
covers situations where the defendant is intending to procure the person
under 16 to be present while another person engages in, or submits to,
sexual activity in front of the person under 16.
The conduct captured by proposed subparagraph 272.11(2)(b)(ii) would
include where the person under 16 is present while a person (other than the
defendant) commits an act of indecency (either on themselves or on a fourth
person), submits to an act of indecency (committed by a fourth person) or
has sexual intercourse with a fourth person.
Example: P1 meets P2, a person under 16, in a foreign country. P1
tries to persuade P2 to engage in sex with P1's friend.
Example: P1 engages in correspondence with P2, a person under 16, with
the intention of procuring P2 to watch P1's friend have sex with a
fourth person.
The offending conduct can take place in a range of geographical
circumstances, including when the defendant is in Australia and the person
under 16 is overseas, when the defendant is overseas and the person under
16 is overseas, or when both the defendant and the person under 16 are in
Australia. The sexual activity must be intended to occur outside
Australia, but proposed subsection 272.11(4) makes it clear that it does
not matter if the sexual intercourse took place or if it is impossible to
ever take place.
Proposed subsection 272.11(5) stipulates that it is not necessary that the
person under 16 actually exist. This is to capture investigations where
law enforcement officers assume the identity of a fictitious person under
16 and interact with potential predatory adults. This offence allows law
enforcement officers to arrest the predatory adult before they have an
opportunity to sexually abuse a person under 16.
In these offences, absolute liability applies to the location of the
conduct and the fact that the person is under 16. This means that the
prosecution only needs to prove that the conduct occurred outside
Australia, and not that the defendant intended, or was reckless, to that
fact. Similarly, it means that the prosecution only needs to prove that
the person is under 16 and not that the defendant intended, or was reckless
to that fact.
The application of absolute liability is appropriate because the issue of
whether the person intended to engage in the conduct in Australia or
overseas is not central to their culpability. It is appropriate to
penalise a person for such conduct irrespective of their knowledge or
intention as to where the conduct occurs.
The use of absolute liability in relation to the fact that the person is
under 16 mirrors the use of absolute liability in relation to the offence
of using a carriage service to procure a child for sexual activity (see
sections 474.26 and 474.28(1) of the Criminal Code) and is consistent with
the use of absolute liability in the child sex tourism offences (both in
Part IIIA of the Crimes Act and in proposed Division 272 of the Criminal
Code). A defence based on belief about age is available in proposed
section 272.13.
Proposed section 272.12: Engaging in conduct to "groom" persons under
16 years of age
This proposed offence is similar to proposed section 272.11, but relates to
the grooming of persons under 16 rather than the procurement. The proposed
offence captures the grooming of a young person with the intention of
making it easier to procure them into engaging in sexual activity outside
Australia. Grooming can include a range of conduct that makes it easier to
procure a person for sexual activity including through building trust with
a person under 16 and taking steps to desensitise the person to the thought
of engaging in sexual activity with adults. For example the person may
expose the person under 16 to pornographic images or encourage romantic
feelings in them. These proposed provisions address a gap in the current
legislation.
The proposed offences are modelled on existing offences in section 474.27
of the Criminal Code, which deal with the use of a carriage service to
groom a person under 16 for sexual activity, but are not limited to conduct
involving the use of a carriage service.
The maximum penalty for these offences is 12 years imprisonment. This
penalty is based upon the current offences in section 474.27 for using a
carriage service to groom a child for sexual activity.
The definition of sexual activity currently contained in
subsection 474.28(1) will be moved to the Dictionary of the Criminal Code
by Items 12 and 15 of this Schedule.
Example: P1 comes face-to-face with P2, a person under 16, and tries to
make it easier to procure P2 to engage in sexual intercourse by
exposing them to pornographic images depicting children engaging in
sexual acts with adults.
Example: P1 comes face-to-face with P2, a person under 16, and tries to
make it easier to procure P2 to engage in an act of indecency by
exposing them to pornographic images depicting children engaging in
sexual acts with adults.
Proposed subsection 272.12(1) deals with situations where the defendant
engages in conduct to make it easier to procure a person under 16 to engage
in sexual activity with the defendant or submit to sexual activity
committed by the defendant. It also covers situations where the defendant
engages in conduct to make it easier to procure a person under 16 to be
present while the defendant engages in, or submits to, sexual activity in
front of the person under 16.
The conduct captured by proposed subparagraph 272.12(1)(b)(ii) is similar
to that captured by proposed subparagraph 272.11(1)(b)(ii).
Example: P1 is in Australia and befriends P2, a person under 16 who is
in a foreign country. P1 tries to convince P2 via e-mail and telephone
conversations that P2 has romantic feelings for P1. P1 does so with
the intention that P2 will have sexual intercourse with P2 outside
Australia at some future date. P1 can be found guilty of the offence
even though the sexual intercourse did not actually occur.
Example: P1 comes face-to-face with P2, a person under 16, and tries to
make it easier to procure P2 to engage in an act of indecency by
exposing them to pornographic images depicting children engaging in
sexual acts with adults.
Proposed subsection 272.12(2) operates in the same way as the proposed
offence in 272.13(1) subject to one key difference: the first person
engages in conduct with the intention of making it easier to procure the
person under 16 to engage in sexual activity with another person (rather
than the defendant).
The conduct captured by proposed subparagraph 272.12(2)(b)(ii) is similar
to that captured by proposed subparagraph 272.11(2)(b)(ii).
Example: P1 engages in correspondence with P2, a person under 16 with
the intention of making it easier to procure P2 to watch P1's friend
have sex with a fourth person.
The offending conduct can take place in a range of geographical
circumstances, including when the defendant is in Australia and the person
under 16 is overseas, when the defendant is overseas and the person under
16 is overseas, or when both the defendant and the person under 16 are in
Australia. The proposed sexual intercourse must occur outside Australia,
but proposed subsection 272.12(4) makes it clear that it does not matter if
the sexual intercourse took place or if it is impossible to ever take
place.
Subsection 272.12(5) stipulates that it is not necessary that the person
under 16 actually exist. This is to capture investigations where law
enforcement officers assume the identity of a fictitious person under 16
and interact with potential predatory adults. This offence allows law
enforcement officers to arrest the predatory adult before they have an
opportunity to sexually abuse a person under 16.
In these offences, absolute liability applies to the location of the
conduct and the fact that the person is under 16. This means that the
prosecution only needs to prove that the conduct occurred outside
Australia, and not that the defendant intended, or was reckless, to that
fact. Similarly, it means that the prosecution only needs to prove that
the person is under 16 and not that the defendant intended, or was reckless
to that fact.
The application of absolute liability is appropriate because the issue of
whether the person intended to engage in the conduct in Australia or
overseas is not central to their culpability. It is appropriate to
penalise a person for such conduct irrespective of their knowledge or
intention as to where the conduct occurs.
The use of absolute liability in relation to the fact that the person is
under 16 mirrors the use of absolute liability in relation to the offence
of using a carriage service to groom a child for sexual activity (see
sections 474.27 and 474.28(1) of the Criminal Code) and is consistent with
the use of absolute liability in the child sex tourism offences (both in
Part IIIA of the Crimes Act and in proposed Division 272 of the Criminal
Code). A defence based on belief about age is available in proposed
section 272.13.
Proposed section 272.13: Defence based on belief about age
This proposed section is based upon sections 50CA and 50CD of the current
Crimes Act subject to one key difference: the defendant now carries an
evidential burden rather than a legal burden. This means that the
defendant must adduce or point to evidence that suggests a reasonable
possibility that the matter exists or does not exist (see section 13.3 of
the Criminal Code). An evidential burden is appropriate as belief as to
the age of the child is not an element of the offence. Further, as the
belief is a subjective one held by the defendant (and therefore more likely
to be within the knowledge of the defendant), it is not unreasonable to
place an evidential onus on the defendant in respect of the defence.
Proposed subsection 272.13(1) provides a defence to offences committed
under proposed sections 272.7, 272.8, 272.9, or 272.10. The defence
applies if, at the time of the sexual intercourse or act of indecency, the
defendant believed that the person who was under 16, was actually 16 or
over.
Proposed subsection 272.13(2) provides a defence to offences committed
under sections 272.11 or 272.12. The defence applies if, at the time of
the conduct, the defendant believed that the person, who was under 16, was
actually 16 or over, and if the conduct constituting the offence was
consensual.
In order to establish the defences contained in this section, it will not
be necessary for the defendant to prove that his or her mistaken belief as
to the child's age was reasonable in the circumstances. However, proposed
subsection 272.13(3) provides that the jury may take reasonableness into
account when determining whether the defendant held the claimed belief.
Proposed section 272.14: Defence based on valid and genuine marriage
This proposed section is based upon sections 50CB and 50CC of the current
Crimes Act with one modification: the defence based on valid and genuine
marriage will no longer be available where a person outside the marital
relationship is directly involved (such as in proposed sections 272.8 and
272.10 which deal with inducing a person under 16 to engage in sexual
intercourse or sexual conduct with a third person.)
Proposed subsection 272.14(1) provides a defence to offences under proposed
sections 272.7, and 272.9 where:
. at the time of the sexual intercourse or act of indecency a marriage
existed between the person under 16 and the defendant which was valid,
or recognisable as valid, under the law of the country:
o where the marriage was solemnised
o where the offence was allegedly committed, or
o of the defendant's residence or domicile, and
. the marriage was genuine at the time it was entered into, and
. the conduct constituting the offence was consensual.
The requirement that marriage be genuine at the time it was entered into is
intended to prevent the use of a sham or fictitious marriage as a defence.
Proposed subsection 272.14(2) establishes a similar defence for conduct
constituting an offence against subsections 272.11(1) and 272.12(1).
A defendant bears a legal burden in establishing these defences and,
accordingly, must establish the elements of the defences on the balance of
probabilities (see section 13.4 and 13.5 of the Criminal Code). This is
the same as the burden for the defence in section 50CB established by
current section 50CC of the Crimes Act, despite a note attached to section
50CB that indicates only an evidential burden applies.
A legal burden is appropriate as the child's marital status is not an
element of the offence and the matter required to be proved (that there was
a genuine marriage and that it was valid in a foreign country) are matters
peculiarly within the knowledge of the defendant.
Proposed Subdivision C- Offences of benefiting from, encouraging or
preparing to commit sexual offences against children overseas
Proposed section 272.15: Benefiting from offence against this Division
This proposed section is based upon section 50DA of the current Crimes Act.
The proposed section creates an offence specifically directed at the
organisers and promoters of child sex tourism.
This provision makes it an offence for a person to perform an act or make
an omission, whether in Australia or overseas, with the intention of
benefiting, whether financially or otherwise, from conduct of a kind that
would constitute an offence under the Division and the conduct is
reasonably capable of resulting in the person benefiting from conduct of a
kind that would constitute an offence against the Division. The maximum
penalty for the offence is 17 years which is the same as the penalty for
the offence in section 50DA.
An offence is committed against proposed section 272.15 as soon as the
person performs the relevant act (or omission). It is irrelevant whether
the conduct, which would constitute the other offence under this proposed
Division, occurs or has occurred.
The fault element (intention) must be proven under proposed paragraph
272.15(1)(b).
To the physical element of circumstance - that the conduct is reasonably
capable of resulting in the person benefiting from conduct of a kind that
would constitute an offence against this Division - is an objective fact
that must be proven under proposed paragraph 272.15(1)(c). The application
of absolute liability to the circumstance in proposed
paragraph 272.15(1)(c) is only used in a technical sense to avoid confusion
between paragraphs (b) and (c). This is appropriate as this circumstance
is established by reference to an objective standard that does not relate
to culpability (for example, that the defendant intended, knew, was
reckless or negligent that the circumstance existed).
Proposed section 272.16: Encouraging offence against this Division
This proposed section is based upon section 50DB of the current Crimes Act.
Proposed section 272.16 is in similar terms to proposed section 272.15 but
proscribes acts (or omissions) performed with the intention of
'encouraging' conduct of a kind that would constitute an offence under this
Division (other than an offence under this section) if the act (or
omission) is reasonably capable of encouraging such conduct. The maximum
penalty for the offence is 17 years which is the same as the penalty for
the offence in section 50DB.
Proposed subsection 272.16(4) defines the term 'encourage' for the purposes
of this provision, to mean to encourage, incite to, or urge, by any means
whatever (including by written, electronic or other form of communication)
or to aid, facilitate or contribute to, in any way whatever. This is an
exhaustive definition for the purposes of the proposed section.
Absolute liability applies to the physical element of circumstance in the
same way, and for the same reasons, as set out above in relation to
proposed section 272.15.
Proposed section 272.17: Preparing to commit offence against this Division
This proposed amendment creates offences to capture the behaviour of people
who are preparing to commit a child sex offence against proposed sections
272.7 to 272.10 and section 272.15. This proposed offence would capture a
wide range of preparatory behaviour.
Example: P1 books an airline ticket and accommodation to travel outside
Australia with the intention of planning to engage in sexual
intercourse with a person who is under 16 while outside Australia.
The inclusion of an offence of this kind would enable the client to be
arrested prior to a person under 16 being harmed. The offence of engaging
in preparatory acts applies both inside and outside Australia.
The preparatory offences address a gap in the coverage of the existing
child sex tourism offences. Currently, sections 50DA (proposed section
272.15) and 50DB (proposed section 272.16) of the Crimes Act prohibit a
person from 'benefiting from' or 'encouraging' conduct which would amount
to a child sex tourism offence being committed overseas. These offences
are targeted at child sex 'tour' operators rather than the child sex
client. There is nothing in the current offence provisions which clearly
prohibits any preliminary steps being taken by a person who wishes to
participate in a child sex tour.
These provisions attract a maximum penalty of 15 years and 17 years
imprisonment. These penalties are based upon the maximum penalties for the
offences for which it is an offence to prepare to commit (for example, the
maximum penalty for sexual intercourse with a child is 17 years
imprisonment and accordingly the maximum penalty for preparing to commit an
offence of sexual intercourse with a child is also 17 years imprisonment).
Proposed Subdivision D- Video Link Evidence
This proposed subdivision allows the use of video evidence in relation to
child sex offences committed outside Australia. Proposed subdivision D is
the same as Division 5 of Part IIIA of the Crimes Act with only some minor
drafting and referencing changes. The substance of the provisions remains
the same.
Proposed section 272.20: When court may take evidence by video link
This proposed section is based upon section 50EA (when the court may take
evidence by video link) and 50EB (motion of parties) of the Crimes Act: it
allows a witness to give evidence by video link on application of a party
to the proceedings if:
. the witness is willing to give evidence from outside Australia
. he or she is not a defendant in the proceedings
. the facilities for taking such evidence (in accordance with the
requirements of proposed section 272.21) are or can reasonably be made
available
. the court is satisfied that the witness's attendance in Australia
would:
o cause unreasonable expense or inconvenience, or
o cause the witness psychological harm or unreasonable distress,
or
o cause the witness to become so intimidated or distressed that
his/her reliability as a witness would be significantly reduced,
and
. the court is satisfied that it is consistent with the interests of
justice for the evidence to be taken by video link.
As the provisions dealing with child sex offences committed outside
Australia are international in nature it is likely that witnesses will be
living outside of Australia. To maximise the ability of the courts to
obtain relevant witness evidence it is important that the evidence can be
obtained by video link, so that witnesses are not precluded from giving
their evidence due to cost or other matters that arise due to the
international nature of the crime.
Proposed section 272.21: Technical requirements for video link
This proposed section is based upon current section 50EC of the Crimes Act.
This provision relates to the requirement in proposed paragraph 272.20(c)
and provides that video link evidence is not to be given unless the place
where the court is sitting and the place where the evidence is to be given
are each equipped with video facilities to enable the persons whom the
court considers appropriate to see and hear each other via the video-link.
Proposed section 272.22: Application of laws about witnesses
This proposed section is based upon current section 50ED of the Crimes Act:
it provides that a witness who gives video link evidence is taken to be
giving it at the place where the court is sitting.
The proposed note in this section makes it clear that the effect of
proposed section 272.22 is to apply local Australian law to the giving of
evidence by video link, including laws relating to the rules of evidence,
procedure, contempt of court and perjury.
Proposed section 272.23: Administration of oaths and affirmations
Proposed section 272.23 is based upon current section 50EE of the Crimes
Act: it provides for the oath or affirmation to be administered either by
the Australian court over the video link or by an authorised person at the
place where the witness is to give evidence on behalf of the court. If the
oath or affirmation is administered at the place where the witness is to
give evidence, it is done on behalf of the Australian court and at the
court's direction.
Proposed section 272.24: Expenses
Proposed section 272.24 is based upon current section 50EF of the Crimes
Act: it authorises the court to make orders for the payment of expenses
incurred in connection with the giving of evidence by video link. This
would allow the court to obtain evidence it thinks will be useful for the
case, when the other country will not or cannot fund the exercise.
Proposed section 272.25: Other laws about foreign evidence not affected
Proposed section 272.25 is based upon current section 50EG of the Crimes
Act: it expressly preserves the operation of other laws relating to the
taking of evidence from overseas witnesses for the purposes of proceedings
concerning offences against this proposed Division.
Proposed Subdivision E- Other rules about conduct of trials
This proposed subdivision stipulates other rules about the conduct of
trials in relation to child sex offences committed outside Australia.
Proposed Subdivision E is the same as Division 6 of Part IIIA of the Crimes
Act with only some minor drafting and referencing changes. The substance
of the provisions remains the same.
Proposed section 272.26: Certain material taken to be evidence of age
Proposed section 272.26 is based upon current section 50FA of the Crimes
Act: it provides that, in determining for the purposes of the Division
whether a person is or was at a particular time under 16, or how old a
person is or was at a particular time, a jury or court may have regard to,
as evidence, the appearance of the person, medical or other scientific
opinion and documents being or purporting to be official or medical records
of a foreign country or copies of such records. This is to allow the court
to consider a variety of sources of evidence when, for example, definitive
evidence such as a genuine birth certificate of the victim is not
available.
In order to avoid any doubt, proposed subsection 272.26(2) provides that
the proposed section does not:
. make any other kind of evidence inadmissible, or
. relieve the prosecution authorities from the duty of making every
effort to obtain the best evidence of age of the person.
Proposed subsection 272.26(3) provides that where proposed subsection
272.26(1) is relied upon, the court must warn the jury that it must be
satisfied beyond reasonable doubt that the person in question:
. is, or was at a particular time, under 16, or
. is, or was at a particular time, of a particular age.
Proposed section 272.27: Alternative verdicts
Proposed section 272.27 is based upon current section 50FB of the Crimes
Act: it allows the jury to return alternative verdicts in certain cases
where it is satisfied that the accused is not guilty of the offence charged
but is guilty of another offence under the proposed Division.
Proposed subsection 272.27 provides that, if the defendant is on trial for
an offence against proposed section 272.7 (sexual intercourse with person
under 16) and the jury is not satisfied that the defendant is guilty of an
offence against that section, but is satisfied that he or she is guilty of
an offence against proposed section 272.9 (sexual conduct involving person
under 16), it may find the defendant guilty of the offence against section
272.9 instead.
Proposed subsection 272.27(2) provides that if the defendant is on trial
for an offence against proposed section 272.8 (inducing person under 16 to
engage in sexual intercourse) and the jury is not satisfied that the
defendant is guilty of an offence against that section, but is satisfied
that he or she is guilty of an offence against subsection 272.10(1)
(inducing person under 16 to be involved in sexual conduct), it may find
the defendant guilty of the offence against subsection 272.10(1) instead.
Proposed section 272.28: Double jeopardy
Proposed section 272.28 is based upon section 50FC of the Crimes Act: it
makes it clear that a person is not liable to prosecution for an offence
against this Division for conduct for which he or she has already been
convicted or acquitted in another country for offences against the law of
that country.
Proposed section 272.29: Sentencing
Proposed section 272.29 is based upon section 50FD of the Crimes Act.
Proposed subsection 272.29(1) provides that in sentencing a person
convicted of an offence against Subdivision B (sexual offences against
children overseas), the court must take into account the age and maturity
of the person in relation to whom the offence was committed, where these
matters are relevant and known to the court.
The intention behind this provision is to allow the court to consider the
unique circumstances of any case.
Example A: P1, is a mature 15 year old who has been in a long term
relationship with P2 who has just turned 18 and they have sexual
intercourse outside Australia.
Example B: P1 is 11 years old and P2 is 60 years old. P2 engages in
sexual intercourse with P1 outside Australia.
'Example A' and 'Example B' are very different situations and the court is
to consider differences of situation to the extent that they are relevant
and known to the court. It is not intended that the sexual history of the
victim be taken into account when considering their maturity.
To avoid any doubt proposed subsection 279.29(2) provides that the matters
listed in proposed subsection 272.29(1) are in addition to any other
matters which the court must take into account when sentencing, such as
those listed in section 16A(2) of the Crimes Act.
Proposed Division 273 - Offences involving child pornography material or
child abuse material outside Australia
The conduct of possessing, producing or distributing 'child pornography
material' or 'child abuse material' within Australia is criminalised by
virtue of either Commonwealth or State offences depending on the
circumstances. The purpose of proposed Division 273 is to add new child
pornography offences to allow prosecution, under Australian law, of
Australians who engage in such conduct overseas, in practice to deal with
circumstances where the foreign country does not have specific laws to deal
with this behaviour or is unwilling or unable to prosecute. This addresses
a gap in the current legislation highlighted by recent investigations.
Many of the proposed sections mirror existing carriage service child
pornography and child abuse material offences in Part 10.6
(Telecommunications Services) of the Criminal Code.
Subdivision A - Preliminary
Proposed section 273.1: Definitions
This provision inserts a number of definitions for the purposes of Division
273. Subsection 273.1(1) provides that, except for the definitions in
subsections 273.1(2) (definition of a person 'having possession or control
of material') and 273.1(3) (definition of a person 'producing, distributing
or obtaining material'), the definitions in Part 10.6 of the Criminal Code,
which relate to telecommunications offences, also apply to Division 273.
For the purposes of the proposed new offences in Subdivision B, proposed
subsection 273.1(2) gives an inclusive definition of the phrase 'having
possession or control of material', and proposed subsection 273.1(3) gives
an inclusive definition of the phrase 'producing, distributing, or
obtaining material'. Those definitions are based on the definitions in
section 473.2 of the Criminal Code ('having possession or control of data
or material that is in the form of data').
Proposed section 273.2: Who can be prosecuted for an offence committed
overseas
This proposed section defines the persons who may be prosecuted under
Division 273 for offences committed outside Australia. They are persons
who, at the time of the relevant act or omission, are:
. Australian citizens
. residents of Australia
. a body corporate under Australian law, or
. a body corporate whose activities are carried on principally in
Australia.
Proposed section 273.3: Double jeopardy
This provision makes it clear that a person is not liable to prosecution
for an offence against this Division for conduct for which he or she has
already been convicted or acquitted in another country for offences against
the law of that country.
Proposed section 273.4: Saving of other laws
This provision expressly preserves the operation of other laws relating to
offences involving child pornography material or child abuse material
outside Australia.
Subdivision B - Offences involving child pornography material or child
abuse material committed overseas
Proposed section 273.5: Possessing, controlling, producing, distributing or
obtaining child pornography material outside Australia
Proposed section 273.5 makes it an offence for Australians to possess,
control, produce, distribute or obtain 'child pornography material' while
overseas. This offence carries a maximum penalty of 10 years imprisonment.
The length of this penalty is based upon penalties for similar conduct
within Australia.
The term 'child pornography material' has the same meaning as in section
473.1 (definitions) of the Criminal Code (see proposed subsection
273.1(1)). The definition includes material that depicts or describes a
child engaged in sexual activity in a way that reasonable persons would
regard as being, in all the circumstances, offensive.
Absolute liability applies to circumstance that the conduct occurs outside
Australia. This means that the prosecution only needs to prove that the
conduct occurred outside Australia, and not that the defendant intended, or
was reckless, as to that fact. The application of absolute liability is
appropriate because the issue of whether the person intended to engage in
the conduct in Australia or overseas is not central to their culpability.
It is appropriate to penalise a person for such conduct irrespective of
their knowledge or intention as to where the conduct occurs. The use of
absolute liability in these circumstances is consistent with the use of
absolute liability in the offences against proposed Division 272 and the
offences for using a carriage service to procure or groom a child for
sexual activity in Division 474 of the Criminal Code.
Proposed section 273.6: Possessing, controlling, producing, distributing or
obtaining child abuse material outside Australia
Proposed section 273.6 makes it an offence for Australians to possess,
control, produce, distribute or obtain 'child abuse material' while
overseas. This offence carries a maximum penalty of 10 years imprisonment.
The length of this penalty is based upon penalties for similar conduct
within Australia.
The term 'child abuse material' has the same meaning as in section 473.1
(definitions) of the Criminal Code (see proposed subsection 273.1(1)).
This definition includes material that depicts or describes a child who is
a victim of torture, cruelty or physical abuse in a way that reasonable
persons would regard as being, in all the circumstances, offensive.
Absolute liability applies to the offence in proposed section 273.6 in the
same way, and for the same reasons, as outlined above in
proposed section 273.5.
Subdivision C - Defences
Proposed section 273.7 sets out the circumstances in which a person is not
criminally responsible for an offence in proposed Subdivision B. These
defences are modelled on the defences in sections 474.21 (defences in
respect of child pornography material) and 474.24 (defences in respect of
child abuse material) of the Criminal Code and will protect people who have
legitimate reasons for possessing, controlling, producing, distributing or
obtaining child pornography material or child abuse material. Minor
changes have been made to those defences to make them appropriate for
offences which will occur outside Australia. For example, subsection
272.7(1) sets out a defence of engaging in conduct for public benefit.
Subsection 272.7(2) sets out an exhaustive list of circumstances when
conduct will be of public benefit, including enforcing, monitoring
compliance with or investigating a contravention of a law of the
Commonwealth or a State or Territory. The defence now includes reference
to a law of a foreign country in addition to Commonwealth, State and
Territory laws.
Most of the defences in proposed section 272.7 are similar in application
to the general defence of lawful authority in section 10.5 of the Criminal
Code. However, that defence is not specific to the circumstances covered
by these defences and does not sufficiently cover all the types of people
that would be legitimately entitled to a defence for the proposed child
pornography material offences.
The defendant bears the evidential burden of pointing to evidence which
supports the defences outlined below. It will generally be much easier for
a defendant, rather than the prosecution, to produce evidence showing that
the circumstances to which the defences apply do in fact exist.
Proposed section 273.7: Defences to offences against this Division
Proposed subsection 273.7(1) provides a defence against proposed section
273.5 (possessing, controlling, producing, distributing or obtaining child
pornography material outside Australia) and proposed section 273.6
(possessing, controlling, producing, distributing or obtaining child abuse
material outside Australia) to a defendant who can point to evidence to
suggest that their conduct is of public benefit and does not go beyond what
is of public benefit. The test is an objective one, meaning the motives or
intentions of the person who engaged in the conduct are not relevant and
would not be considered in determining whether the conduct is in fact of
public benefit.
Proposed subsection 273.7(2) provides an exhaustive list of conduct that is
of public benefit. If a person engages in conduct that meets one of the
four criteria in proposed subsection 273.7(2) it will be considered to be
'of public benefit' for the purposes of proposed subsection 273.7(1) so
long as the conduct does not go beyond what is of the public benefit. It
will be a question of fact, to be determined by the arbiter of fact, as to
whether the conduct meets one of the four criteria and therefore is of
public benefit. It will also be a question of fact as to whether the
conduct extends beyond what is of public benefit.
Proposed paragraph 273.7(2)(a) covers conduct that is necessary or of
assistance in enforcing a law of the Commonwealth, a State or a Territory
or a foreign country. This defence would have very limited application and
is targeted at persons who may be required to engage in the offending
conduct as part of their duties in connection with law enforcement, but who
are not covered by the defence for law enforcement officers in subsection
273.4(4)(a).
Example: P1, an Australian criminologist working in a foreign country
assists law enforcement agencies in the identification of victims of
child abuse.
Proposed paragraph 273.7(2)(b) covers conduct that is necessary or of
assistance in monitoring compliance with, or investigating a contravention
of, a law of the Commonwealth, a State or a Territory, or foreign country.
This defence is targeted at officers of government agencies involved in
monitoring and investigative activity related to regulatory schemes that
they administer.
Proposed paragraph 273.7(2)(c) covers conduct that is necessary or of
assistance in the administration of justice (whether within or outside
Australia). This defence is targeted at persons involved in, or persons
who through their work are required to assist another person involved in,
court proceedings brought to enforce criminal offences related to child
pornography or child abuse material. The types of people covered by the
defence would include judicial officers, or other officers, of a court
hearing the proceedings, legal representatives of a party to the
proceedings, and witnesses in the proceedings.
Proposed paragraph 273.7(2)(d) covers conduct that is necessary or of
assistance in conducting scientific, medical or educational research. This
defence will ensure that legitimate research dealing with child pornography
can be undertaken. However, this would cover only a limited range of
conduct and proposed subsection 273.7(3) stipulates that paragraph
273.7(2)(d) only applies if the person's conduct was reasonable.
Proposed subsection 273.7(4) provides a defence for law enforcement
officers, intelligence or security officers and an officer or employee of
the government of a foreign country performing similar duties to an
intelligence or security officer, acting in the course of their duties
where their conduct is reasonable in the circumstances for the purpose of
performing that duty. 'Law enforcement officer' and 'intelligence or
security officer' are defined in Part 10.6 of the Criminal Code.
Example: P1, a law enforcement officer who is working in a foreign
country sends an email containing child pornography to colleagues as
part of an investigation. This would ordinarily be covered by the
defence. However, if P1 intentionally included amongst the email
recipients a friend who had no involvement in the investigation, the
officer may not be covered by this defence.
Proposed subsection 273.7(5) provides a defence for persons who engage in
the offending conduct in good faith for purposes related to the operation
of the Online Content Co-Regulatory Scheme (the Scheme) under Schedules 5
and 7 of the Broadcasting Services Act 1992.
Paragraph 273.7(5)(a) provides a defence for persons who engage in the
offending conduct for the sole purpose of assisting the Australian
Communications and Media Authority (ACMA) to detect prohibited content or
potential prohibited content in the performance of its functions under the
Scheme.
Example: P1, an Australian working in a foreign country for an
Australian body corporate, makes a complaint about an Australian
website to ACMA under the Scheme by emailing an attachment containing
child pornography material that they accessed on the website. P1,
whose only reason for transmitting such material is to assist the ACMA
in its functions under the Scheme, would not be liable for that
conduct.
Paragraph 273.7(5)(b) provides a defence for persons involved in the
manufacturing, developing or updating of content filtering technology
(including software) in accordance with a 'recognised alternative access-
prevention arrangement' or 'designated alternative access-prevention
arrangement'. These terms are defined in clauses 40 and 60 of Schedule 5
of the Broadcasting Services Act, respectively. Under the Scheme, these
access prevention arrangements involve the development of filtering
software and filtered carriage services designed to block prohibited
content. These are to be updated in accordance with notices issued by ACMA
providing details of internet sites that contain prohibited content. In
updating their filters, software manufacturers and internet service
providers that offer filtered carriage services may need to access sites
that contain prohibited content. The defence could apply to a company that
produced filtering software overseas principally for the Australian market.
Proposed Subdivision D - Video link Evidence
This proposed subdivision allows the use of video evidence in relation to
offences involving child pornography or child abuse material outside
Australia. These provisions are identical to those included in proposed
Division 272 (Child sex offences outside Australia) detailed above. As
with the provisions in proposed Division 272, these provisions mirror
existing Crimes Act child sex tourism provisions. Minor alterations have
been made, consisting of changes to form however the substance of the
provisions remains the same.
Proposed section 273.8: When court may take evidence by video link
Proposed section 273.8 allows a witness to give evidence by video link on
application of a party to the proceedings if:
. the witness is willing to give evidence from outside Australia
. he or she is not a defendant in the proceedings
. the facilities for taking such evidence (in accordance with the
requirements of proposed section 273.9) are or can reasonably be made
available
. the court is satisfied that the witness's attendance in Australia
would:
o cause unreasonable expense or inconvenience, or
o cause the witness psychological harm or unreasonable distress,
or
o cause the witness to become so intimidated or distressed that
his/her reliability as a witness would be significantly reduced,
and
. the court is satisfied that it is consistent with the interests of
justice for the evidence to be taken by video link.
As the provisions dealing with offences involving child pornography
material or child abuse material outside Australia are international in
nature it is likely that witnesses may be living outside of Australia. To
maximise the ability of the courts to obtain relevant witness evidence it
is important that the evidence can be obtained by video link, so that
witnesses are not precluded from giving their evidence due to cost or
others matters arising from the international nature of the crime.
Proposed section 273.9: Technical requirements for video link
This proposed section relates to the requirement in proposed paragraph
273.8(c) (that facilities are available) and provides that video link
evidence is not to be given unless the place where the court is sitting and
the place where the evidence is to be given are each equipped with video
facilities to enable persons whom the court considers appropriate to see
and hear each other via the video link.
Proposed section 273.10: Application of laws about witnesses
Proposed section 273.10 provides that a witness who gives video link
evidence is taken to be giving it at the place where the court is sitting.
The proposed note in this section makes it clear that the effect of
proposed section 273.10 is to apply local Australian law to the giving of
evidence by video link, including laws relating to the rules of evidence,
procedure, contempt of court and perjury.
Proposed section 273.11: Administration of oaths and affirmations
This proposed section provides for the oath or affirmation to be
administered either by the Australian court over the video link or by an
authorised person at the place where the witness is to give evidence on
behalf of the court. If the oath or affirmation is administered at the
place where the witness is to give evidence, it is done on behalf of the
Australian court and at the court's direction.
Proposed section 273.12: Expenses
This proposed section authorises the court to make orders for the payment
of expenses incurred in connection with the giving of evidence by video
link. This will allow the court to obtain evidence it thinks will be
useful for the case, when the other country will not fund the exercise.
Proposed section 273.13: Other laws about foreign evidence not affected
This proposed section expressly preserves the operation of other laws
relating to the taking of evidence from overseas witnesses for the purposes
of proceedings concerning offences against this proposed Division.
Item 10 and Item 11: Division 474 of the Criminal Code
Section 474.27 of the Criminal Code makes it an offence to use a carriage
service to 'groom' a person under the age of 16 years for sexual activity.
Currently, an element of the grooming offences in section 474.27 is that a
person uses a carriage service to transmit a communication to a second
person and the communication includes material that is indecent.
Subsection 474.27(5) states that indecent means 'indecent according to the
standards of ordinary people'.
The requirement that the communication include material that is indecent
limits the type of communications that are captured by the grooming
offences. Grooming activity may involve the transmission of indecent
material - such as pornography - but is just as likely to include
communications that are designed to build trust with the perpetrator or
invoke romantic feelings in the person under 16 years of age.
Items 10 and 11 amend section 474 to ensure that these offences operate as
effectively as possible to capture persons who groom children for sexual
intercourse or indecent conduct by removing the requirement that the
communication must include material that is indecent. This will also make
the offences consistent with the proposed grooming offences in the child
sex tourism offences.
Item 12: Repealing subsection 474.28(11) of the Criminal Code
Subsection 474.28(11) of the Criminal Code contains definitions of
'procure' and 'sexual activity'. It is proposed that these definitions be
contained in the Dictionary of the Criminal Code because the terms are now
applied in multiple Divisions in the Criminal Code.
Item 13: Dictionary in the Criminal Code
'Act of indecency' will be defined in proposed section 272.2. In order to
make the dictionary in the Criminal Code as thorough as possible 'act of
indecency' will be defined in the dictionary to have the same meaning given
by section 272.2 of the Criminal Code.
Item 14: Dictionary in the Criminal Code
This item inserts the definition of 'procure' contained in subsection
474.28(11) of the Criminal Code, which is to be repealed by Item 12, in the
dictionary in the Criminal Code. 'Procure' will be defined in the context
of procuring a person, in relation to sexual activity to include,
encouraging, enticing or recruiting a person in relation to that activity;
or inducing the person (whether by threats, promises or otherwise) in
relation to that activity. The definition is not exhaustive.
The definition has not been changed from its current definition in section
474.28 of the Criminal Code. However, the term is now used in multiple
Divisions in the Criminal Code, and consequently needs to be contained in
the Dictionary.
Item 15: Dictionary in the Criminal Code
'Sexual activity' will be defined in the dictionary of the Criminal Code to
mean sexual intercourse, an act of indecency or any other activity of a
sexual or incidental nature that involves the human body, or bodily
activities or functions, this does not require physical contact between two
people.
Both 'sexual intercourse' and 'act of indecency' are defined in the
dictionary in the Criminal Code. These definitions cross-reference
definitions in proposed sections 272.2 and 272.3 respectively (see Items 13
and 16 of this Schedule).
The definition of 'sexual activity' currently contained in section 474.28
of the Criminal Code, which is repealed by Item 12 of this Schedule, refers
to sections 50AC and 50AB of the Crimes Act, which will be repealed by Item
8 of this Schedule.
Item 16: Dictionary in the Criminal Code
'Sexual intercourse' is to be defined in proposed section 272.3 (meaning of
sexual intercourse). In order to make the dictionary in the Criminal Code
as thorough as possible 'sexual intercourse' will be defined in the
dictionary to have the same meaning given by section 272.3 of the Criminal
Code.
Item 17: Subparagraph 30(1)(a)(iii) of the Surveillance Devices Act 2004
Subparagraph 30(1)(a)(iii) of the Surveillance Devices Act 2004 refers to
an offence against Part IIIA of the Crimes Act. As Part IIIA will not
exist when the Crimes Legislation Amendment (Enhanced child protection from
predatory tourism offences) Act 2008 commences, the subparagraph will
become redundant and therefore is being repealed and replaced (see Item
18).
Item 18: Subparagraph 30(1)(a)(viii) of the Surveillance Devices Act 2005
Subparagraph 30(1)(a)(viii) of the Surveillance Devices Act will be amended
to refer to the new Divisions 272 (child sex tourism offences) and 273
(dealings in child pornography overseas) of the Criminal Code. This will
enable a law enforcement officer to apply for an emergency authorisation
for the use of a surveillance device where there is a risk of loss of
evidence in relation to the investigation of an offence against proposed
Divisions 272 and 273 of the Criminal Code.
Items 19 to Item 22: Amendments to the Telecommunications (Interception and
Access) Act 1979
Section 5D of the Telecommunications (Interception and Access) Act 1979
(the TIA Act) defines 'serious offence' for the purposes of the TIA Act.
Telecommunications interception warrants may only be issued to further the
investigation of a serious offence. To ensure that telecommunications
interception warrants may be issued in relation to the new child sex
tourism and dealings in child pornography material overseas, it is
necessary to include references to new Divisions 272 and 273 of the
Criminal Code in section 5D of the TIA Act.
Subparagraph 5D(3)(d)(xi) currently refers to the child sex tourism
offences in Part IIIA of the Crimes Act. As these offences are being
repealed, it is necessary to repeal references to Part IIIA as a
consequential amendment (see Item 20).
As a result of the changes made by Item 22, telecommunications interception
warrants will be available for the investigation of a child sex tourism
offence or overseas child pornography offence without any further
requirement that the offence have an element of organisation or planning.
This is different to the current position in which such warrants are only
available for the investigation of a child sex tourism offence in Part IIIA
of the Crimes Act where the offence involves, amongst other things, two or
more offenders and substantial planning and organisation.
The Telecommunications (Interception and Access) Amendment Bill 2008 (the
TIA Bill), which was passed by both Houses of Parliament in May 2008,
amended the Telecommunications (Interception and Access) Act 1979 (the TIA
Act) to ensure that all offences involving the production, publication,
possession, supply or sale of child pornography and consenting to or
procuring the employment of a child in connection with child pornography
are serious offences, regardless of their term of imprisonment (currently
these types of offences are only serious offences if they are punishable by
imprisonment for at least seven years). Items 19, 21 and 22 of the Bill
mirror these amendments to the TIA Act to ensure that all child pornography
amendments are located together in the TIA Act.