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Previous Fragment    
Crimes Legislation Amendment (Child Sex Tourism Offences and Related Measures) Bill 2007

Schedule 1 Amendments

   

Australian Crime Commission Act 2002

1  Subsection 4(1) (paragraph (d) of the definition of serious and organised crime )

After “ Proceeds of Crime Act 2002 ,”, insert “an offence against section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of the Criminal Code ,”.

Crimes Act 1914

2  After section 9B

Insert:

10   Forfeiture of child abuse or child pornography material used in commission of sexual offences against children

             (1)  If a court:

                     (a)  convicts a person of an offence referred to in subsection (4); or

                     (b)  makes an order under section 19B in relation to a person charged with such an offence;

the court must order the forfeiture to the Commonwealth of any of the following that were used or otherwise involved in the commission of the offence:

                     (c)  child abuse material or child pornography material (within the meaning of Part 10.6 of the Criminal Code );

                     (d)  an article that contains such material.

Note:          See sections 473.1 and 473.4 of the Criminal Code for the meanings of child abuse material and child pornography material .

             (2)  If:

                     (a)  a forfeiture application is made to a court (see section 11); and

                     (b)  the court is satisfied, on the balance of probabilities, that an offence referred to in subsection (4) has been committed by a person;

the court must order the forfeiture to the Commonwealth of any of the following that were used or otherwise involved in the commission of the offence:

                     (c)  child abuse material or child pornography material (within the meaning of Part 10.6 of the Criminal Code );

                     (d)  an article that contains such material.

             (3)  A finding of the court for the purposes of subsection (2):

                     (a)  need not be based on a finding that a particular person committed any offence; and

                     (b)  need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in subsection (4) was committed.

             (4)  For the purposes of this section, the offences are:

                     (a)  an offence against section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the Criminal Code ; and

                     (b)  an offence against Division 272 or 273 of the Criminal Code .

11   Applications for an order for forfeiture under subsection 10(2)

             (1)  An application (a forfeiture application ) for an order under subsection 10(2) may be made by the Director of Public Prosecutions or a constable to the Federal Court of Australia, the Federal Magistrates Court or a court of a State or Territory.

             (2)  A forfeiture application must be accompanied by an affidavit dealing with the matters referred to in subsection 10(2).

             (3)  A person who makes a forfeiture application must give written notice of the application to:

                     (a)  any person who claims ownership of, or a right of custody or control over, material or an article covered by the application; and

                     (b)  any person whom the applicant reasonably believes may have ownership of, or a right of custody or control over, material or an article covered by the application.

             (4)  A court to which a forfeiture application is made:

                     (a)  may still make an order under subsection 10(2) if a person entitled to be given notice of the application fails to appear at the hearing of the application; and

                     (b)  may, at any time after the making of the application, make any interim orders that it considers appropriate and, in particular, orders relating to the delivery or retention of things pending the decision of the court on the application.

12   Effect of forfeiture under section 10

             (1)  Material or an article forfeited to the Commonwealth under section 10 becomes the property of the Commonwealth.

             (2)  A constable may, without warrant, seize material or an article that is forfeited to the Commonwealth under section 10.

             (3)  If material or an article is forfeited to the Commonwealth under section 10:

                     (a)  the material or article must be retained until the later of the following times:

                              (i)  3 months after the article is forfeited;

                             (ii)  the time when the Commissioner is satisfied that the material will not be required in an investigation or proceedings under a law of the Commonwealth or of a State or Territory; and

                     (b)  after the later of the times referred to in paragraph (a), the Commissioner may deal with the material or article in any way the Commissioner considers appropriate, including, but not limited to, by destroying the material or article.

12A   Copies of articles forfeited under section 10

             (1)  This section applies to a person who is the owner of, or has a right of custody or control over, an article that is forfeited to the Commonwealth under section 10.

             (2)  If the article is in the custody, possession or control of a Commonwealth officer, the officer must, on request by the person, give the person a copy of so much of the article, or so much of the information contained in the article, as:

                     (a)  can readily be copied; and

                     (b)  does not constitute child abuse material or child pornography material for the purposes of section 10.

             (3)  The Commonwealth officer need not comply with subsection (2) if he or she believes on reasonable grounds that to do so might:

                     (a)  endanger the safety of a person; or

                     (b)  prejudice an investigation or prosecution.

12B   Compensation for articles forfeited under section 10

             (1)  This section applies to a person:

                     (a)  who is the owner of, or has a right of custody or control over, an article that is forfeited to the Commonwealth under section 10; and

                     (b)  who is not:

                              (i)  a person convicted of the offence to which the forfeiture relates; or

                             (ii)  a person in relation to whom an order was made under section 19B in relation to the offence to which the forfeiture relates.

             (2)  If the article is electronic equipment or a data storage device, the Commonwealth is liable to pay a reasonable amount of compensation to the person in relation to the replacement of the article.

             (3)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (4)  In this section:

data storage device means a thing containing, or designed to contain, data for use by a computer.

3  Paragraph 15Y(1)(a)

Repeal the paragraph.

4  After paragraph 15Y(1)(caa)

Insert:

                  (cab)  an offence against Division 272 of the Criminal Code (child sex offences outside Australia); or

                  (cac)  an offence against Division 273 of the Criminal Code (offences involving child pornography material or child abuse material outside Australia); or

5  Paragraph 15Y(1)(e)

Omit “paragraph (a), (b), (c), (caa) or (d)”, substitute “paragraph (b), (c), (caa), (cab), (cac) or (d)”.

6  Paragraph 15Y(1)(f)

Omit “paragraph (a), (b), (c), (caa), (d) or (e)”, substitute “paragraph (b), (c), (caa), (cab), (cac), (d) or (e)”.

7  Section 15YT

Repeal the section, substitute:

15YT   Video link evidence provisions relating to child sex offences outside Australia unaffected

                   Nothing in this Part affects the operation of:

                     (a)  Subdivision D of Division 272 of the Criminal Code (child sex offences outside Australia—video link evidence); or

                     (b)  Subdivision D of Division 273 of the Criminal Code (offences involving child pornography material or child abuse material outside Australia—video link evidence).

8  Part IIIA

Repeal the Part.

Criminal Code Act 1995

9  At the end of Chapter 8 of the Criminal Code

Add:

Division 272 Child sex offences outside Australia

Subdivision A Preliminary

272.1   Definitions

                   In this Division:

act of indecency has the meaning given by section 272.2.

induce means induce by threats, promises or otherwise.

offence , in the case of a reference to an offence against this Division or against a particular provision of it, has a meaning affected by section 272.4.

sexual intercourse has the meaning given by section 272.3.

272.2   Meaning of act of indecency

             (1)  In this Code, act of indecency means an act that:

                     (a)  is of a sexual nature; and

                     (b)  involves the human body, or bodily actions or functions; and

                     (c)  is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community.

             (2)  To avoid doubt, act of indecency includes an indecent assault.

272.3   Meaning of sexual intercourse

             (1)  In this Code, sexual intercourse means:

                     (a)  the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or

                     (b)  the penetration, to any extent, of the vagina or anus of a person, carried out by another person by an object; or

                     (c)  fellatio; or

                     (d)  cunnilingus; or

                     (e)  the continuation of any activity mentioned in paragraph (a), (b), (c) or (d).

             (2)  In this Code, sexual intercourse does not include an act of penetration that:

                     (a)  is carried out for a proper medical or hygienic purpose; or

                     (b)  is carried out for a proper law enforcement purpose.

             (3)  For the purposes of this section, vagina includes:

                     (a)  any part of a female person’s genitalia; and

                     (b)  a surgically constructed vagina.

272.4   Extension of criminal responsibility

             (1)  A reference in this Division (except section 272.16) to an offence against this Division or against a particular provision of it includes:

                     (a)  a reference to:

                              (i)  an offence against section 6 of the Crimes Act 1914 ; or

                             (ii)  an offence against section 11.1, 11.5 or 272.16 of this Code;

                            that relates to an offence against this Division or against that provision of it; and

                     (b)  a reference to an offence against this Division, or against that provision of it, because of section 11.2 or 11.3.

             (2)  A reference in section 272.16 to an offence against this Division or against a particular provision of it does not include a reference to such an offence because of section 11.2.

             (3)  Section 11.1 does not apply to an offence against section 272.11, 272.12 or 272.17.

             (4)  Section 11.4 does not apply to an offence against this Division.

             (5)  Section 11.5 does not apply to an offence against section 272.16.

272.5   Who can be prosecuted for an offence committed overseas

                   A person must not be charged with an offence against this Division that the person allegedly committed outside Australia unless, at the time of the offence, the person was:

                     (a)  an Australian citizen; or

                     (b)  a resident of Australia; or

                     (c)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

                     (d)  any other body corporate that carries on its activities principally in Australia.

272.6   Saving of other laws

                   This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

Subdivision B Sexual offences against children overseas

272.7   Sexual intercourse with person under 16

             (1)  A person commits an offence if:

                     (a)  the person engages in sexual intercourse with another person; and

                     (b)  the other person is under 16; and

                     (c)  the sexual intercourse is engaged in outside Australia.

Penalty:  Imprisonment for 17 years.

             (2)  Absolute liability applies to paragraphs (1)(b) and (c).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

272.8   Inducing person under 16 to engage in sexual intercourse

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person induces a second person to engage in sexual intercourse with a third person in the presence of the first person; and

                     (b)  the second person is under 16; and

                     (c)  the sexual intercourse is engaged in outside Australia.

Penalty:  Imprisonment for 17 years.

             (2)  Absolute liability applies to paragraphs (1)(b) and (c).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

272.9   Sexual conduct involving person under 16

             (1)  A person commits an offence if:

                     (a)  the person commits an act of indecency on another person; and

                     (b)  the other person is under 16; and

                     (c)  the act is committed outside Australia.

Penalty:  Imprisonment for 15 years.

             (2)  A person commits an offence if:

                     (a)  the person submits to an act of indecency committed by another person; and

                     (b)  the other person is under 16; and

                     (c)  the act is committed outside Australia.

Penalty:  Imprisonment for 15 years.

             (3)  A person (the first person ) commits an offence if:

                     (a)  the first person commits an act of indecency; and

                     (b)  the act of indecency is committed in the presence of another person; and

                     (c)  the first person intends to derive gratification from the other person’s presence during the act; and

                     (d)  the other person is under 16; and

                     (e)  the act is committed outside Australia.

Penalty:  Imprisonment for 15 years.

             (4)  A person (the first person ) commits an offence if:

                     (a)  the first person submits to an act of indecency committed by a second person; and

                     (b)  the act of indecency is committed in the presence of a third person; and

                     (c)  the first person intends to derive gratification from the third person’s presence during the act; and

                     (d)  the third person is under 16; and

                     (e)  the act is committed outside Australia.

Penalty:  Imprisonment for 15 years.

             (5)  A person (the first person ) commits an offence if:

                     (a)  the first person engages in sexual intercourse with a second person; and

                     (b)  the sexual intercourse is engaged in in the presence of a third person; and

                     (c)  the first person intends to derive gratification from the third person’s presence during the sexual intercourse; and

                     (d)  the third person is under 16; and

                     (e)  the sexual intercourse is engaged in outside Australia.

Penalty:  Imprisonment for 15 years.

             (6)  Absolute liability applies to paragraphs (1)(b) and (c), (2)(b) and (c), (3)(d) and (e), (4)(d) and (e) and (5)(d) and (e).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

             (7)  For the purposes of an offence against subsection (1), (2), (3) or (4), absolute liability applies to the physical element of circumstance that the act of indecency referred to in that subsection is in fact an act of indecency.

Note:          For absolute liability , see section 6.2.

272.10   Inducing person under 16 to be involved in sexual conduct

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person induces a second person to commit, to submit to, or to be present while a third person commits, an act of indecency in the presence of the first person; and

                     (b)  the second person is under 16; and

                     (c)  the act is committed:

                              (i)  outside Australia; and

                             (ii)  by or on a person other than the first person.

Penalty:  Imprisonment for 15 years.

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person induces a second person to be present while a third and fourth person engage in sexual intercourse in the presence of the first and second persons; and

                     (b)  the second person is under 16; and

                     (c)  the sexual intercourse is engaged in outside Australia.

Penalty:  Imprisonment for 15 years.

             (3)  Absolute liability applies to paragraph (1)(b), subparagraph (1)(c)(i) and paragraphs (2)(b) and (c).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

             (4)  For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence that the act of indecency referred to in that subsection is in fact an act of indecency.

Note:          For absolute liability , see section 6.2.

272.11   Engaging in conduct to procure persons under 16 years of age

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person engages in conduct in relation to a second person; and

                     (b)  the first person does so with the intention of procuring the second person:

                              (i)  to engage in, or submit to, sexual activity with the first person outside Australia; or

                             (ii)  to be present while the first person engages in, or submits to, sexual activity outside Australia; and

                     (c)  the second person is someone:

                              (i)  who is under 16; or

                             (ii)  who the first person believes to be under 16; and

                     (d)  any of the following apply:

                              (i)  the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

                             (ii)  the second person is outside Australia when the conduct referred to in paragraph (a) occurs;

                            (iii)  the conduct referred to in paragraph (a) occurs wholly in Australia and the second person is in Australia when that conduct occurs.

Penalty:  Imprisonment for 15 years.

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person engages in conduct in relation to a second person; and

                     (b)  the first person does so with the intention of procuring the second person:

                              (i)  to engage in, or submit to, sexual activity with a third person outside Australia; or

                             (ii)  to be present with the first person while a third person engages in, or submits to, sexual activity (other than with the first or second person) outside Australia; and

                     (c)  the second person is someone:

                              (i)  who is under 16; or

                             (ii)  who the first person believes to be under 16; and

                     (d)  any of the following apply:

                              (i)  the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

                             (ii)  the second person is outside Australia when the conduct referred to in paragraph (a) occurs;

                            (iii)  the conduct referred to in paragraph (a) occurs wholly in Australia and the second person is in Australia when that conduct occurs.

Penalty:  Imprisonment for 15 years.

             (3)  Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) and paragraphs (1)(d) and (2)(d).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

             (4)  A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the sexual activity referred to in that subsection to take place.

             (5)  For the purposes of subsection (1) or (2), it does not matter that the second person is a fictitious person represented to the first person as a real person.

272.12   Engaging in conduct to “groom” persons under 16 years of age

             (1)  A person (the first person ) commits an offence if:

                     (a)  the first person engages in conduct in relation to a second person; and

                     (b)  the first person does so with the intention of making it easier to procure the second person:

                              (i)  to engage in, or submit to, sexual activity with the first person outside Australia; or

                             (ii)  to be present while the first person engages in, or submits to, sexual activity outside Australia; and

                     (c)  the second person is someone:

                              (i)  who is under 16; or

                             (ii)  who the first person believes to be under 16; and

                     (d)  any of the following apply:

                              (i)  the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

                             (ii)  the second person is outside Australia when the conduct referred to in paragraph (a) occurs;

                            (iii)  the conduct referred to in paragraph (a) occurs wholly in Australia and the second person is in Australia when that conduct occurs.

Penalty:  Imprisonment for 12 years.

             (2)  A person (the first person ) commits an offence if:

                     (a)  the first person engages in conduct in relation to a second person; and

                     (b)  the first person does so with the intention of making it easier to procure the second person:

                              (i)  to engage in, or submit to, sexual activity with a third person outside Australia; or

                             (ii)  to be present with the first person while a third person engages in, or submits to, sexual activity (other than with the first or second person) outside Australia; and

                     (c)  the second person is someone:

                              (i)  who is under 16; or

                             (ii)  who the first person believes to be under 16; and

                     (d)  any of the following apply:

                              (i)  the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

                             (ii)  the second person is outside Australia when the conduct referred to in paragraph (a) occurs;

                            (iii)  the conduct referred to in paragraph (a) occurs wholly in Australia and the second person is in Australia when that conduct occurs.

Penalty:  Imprisonment for 12 years.

             (3)  Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i) and paragraphs (1)(d) and (2)(d).

Note 1:       For absolute liability , see section 6.2.

Note 2:       For a defence based on belief about age, see section 272.13.

             (4)  A person may be found guilty of an offence against subsection (1) or (2) even if it is impossible for the sexual activity referred to in that subsection to take place.

             (5)  For the purposes of subsection (1) or (2), it does not matter that the second person is a fictitious person represented to the first person as a real person.

272.13   Defence based on belief about age

             (1)  Section 272.7, 272.8, 272.9 or 272.10 does not apply if, at the time of the sexual intercourse or act of indecency, the defendant believed that the person referred to in that section as being under 16 was 16 or over.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

             (2)  Section 272.11 or 272.12 does not apply if, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the person referred to in that subsection as being under 16 was 16 or over.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

             (3)  In determining whether the defendant had the belief mentioned in subsection (1) or (2), the jury may take into account whether the alleged belief was reasonable in the circumstances.

272.14   Defence based on valid and genuine marriage

             (1)  Section 272.7 or 272.9 does not apply if the defendant proves that:

                     (a)  at the time of the sexual intercourse or act of indecency, there existed between the defendant and the person referred to in that section as being under 16 a marriage that was valid, or recognised as valid, under the law of:

                              (i)  the place where the marriage was solemnised; or

                             (ii)  the place where the offence was allegedly committed; or

                            (iii)  the place of the defendant’s residence or domicile; and

                     (b)  when it was solemnised, the marriage was genuine.

Note:          A defendant bears a legal burden in relation to the matters in this subsection (see section 13.4).

             (2)  Subsection 272.11(1) or 272.12(1) does not apply if the defendant proves that:

                     (a)  at the time he or she allegedly engaged in the conduct constituting the offence against that subsection, there existed between the defendant and the person referred to in that subsection as being under 16 a marriage that was valid, or recognised as valid, under the law of:

                              (i)  the place where the marriage was solemnised; or

                             (ii)  the place where the offence was allegedly committed; or

                            (iii)  the place of the defendant’s residence or domicile; and

                     (b)  when it was solemnised, the marriage was genuine.

Note:          A defendant bears a legal burden in relation to the matters in this subsection (see section 13.4).

Subdivision C Offences of benefiting from, encouraging or preparing to commit sexual offences against children overseas

272.15   Benefiting from offence against this Division

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person does so with the intention of benefiting from conduct of a kind that would constitute an offence against this Division; and

                     (c)  the conduct is reasonably capable of resulting in the person benefiting from conduct of a kind that would constitute an offence against this Division.

Penalty:  Imprisonment for 17 years.

             (2)  Subsection (1) applies:

                     (a)  whether the conduct is engaged in within or outside Australia; and

                     (b)  whether or not the person intends to benefit financially from conduct of a kind that would constitute an offence against this Division; and

                     (c)  whether or not conduct of a kind that would constitute an offence against this Division in fact occurs or has occurred.

             (3)  Absolute liability applies to paragraph (1)(c).

Note:          For absolute liability , see section 6.2.

272.16   Encouraging offence against this Division

             (1)  A person commits an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person does so with the intention of encouraging conduct of a kind that would constitute an offence against this Division (other than this section or section 272.17); and

                     (c)  the conduct is reasonably capable of encouraging conduct of a kind that would constitute an offence against this Division (other than this section or section 272.17).

Penalty:  Imprisonment for 17 years.

Note:          These are examples of conduct covered by paragraph (1)(c):

(a)           assisting a person to travel outside Australia in order to commit an act that would constitute an offence against Subdivision B;

(b)           advertising an offer to assist a person, or an arrangement for assisting a person, as mentioned in paragraph (a).

             (2)  Subsection (1) applies:

                     (a)  whether the conduct is engaged in within or outside Australia; and

                     (b)  whether or not conduct of a kind that would constitute an offence against this Division in fact occurs or has occurred.

             (3)  Absolute liability applies to paragraph (1)(c).

Note:          For absolute liability , see section 6.2.

             (4)  In this section encourage means:

                     (a)  encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or

                     (b)  aid, facilitate, or contribute to, in any way whatever.

272.17   Preparing to commit offence against this Division

             (1)  A person commits an offence if the person does any act in preparation for, or planning, conduct of a kind that would constitute an offence against section 272.7, 272.8, or 272.15.

Penalty:  Imprisonment for 17 years.

Note:          An example of an act that would constitute an offence against subsection (1) is booking an airline ticket to travel outside Australia in preparation for engaging in sexual intercourse with a person who is under 16 while outside Australia.

             (2)  A person commits an offence if the person does any act in preparation for, or planning, conduct of a kind that would constitute an offence against section 272.9 or 272.10.

Penalty:  Imprisonment for 15 years.

Note:          An example of an act that would constitute an offence against subsection (3) is booking an airline ticket to travel outside Australia in planning to commit an act of indecency on a person who is under 16 while outside Australia.

             (3)  A person commits an offence under subsection (1) or (2) even if:

                     (a)  conduct of a kind that would constitute the offence referred to in that subsection does not occur; or

                     (b)  the person’s act is not done in preparation for, or planning, specific conduct of a kind that would constitute the offence referred to in that subsection; or

                     (c)  the person’s act is done in preparation for, or planning, more than one course of conduct of a kind that would constitute the offence referred to in that subsection.

Subdivision D Video link evidence

272.18   When court may take evidence by video link

                   In a proceeding for an offence against this Division, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link if:

                     (a)  the witness will give the evidence from outside Australia; and

                     (b)  the witness is not a defendant in the proceeding; and

                     (c)  the facilities required by section 272.19 are available or can reasonably be made available; and

                     (d)  the court is satisfied that attendance of the witness at the court to give the evidence would:

                              (i)  cause unreasonable expense or inconvenience; or

                             (ii)  cause the witness psychological harm or unreasonable distress; or

                            (iii)  cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

                     (e)  the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.

272.19   Technical requirements for video link

             (1)  A witness can give evidence under a direction only if:

                     (a)  the courtroom or other place in Australia where the court is sitting (the Australian location ); and

                     (b)  the place where the evidence is given (the overseas location );

are equipped with video facilities that:

                     (c)  enable appropriate persons at the Australian location to see and hear the witness give the evidence; and

                     (d)  enable appropriate persons at the overseas location to see and hear appropriate persons at the Australian location.

             (2)  In subsection (1):

appropriate persons means such persons as the court considers appropriate.

272.20   Application of laws about witnesses

                   A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.

Note:          This section has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.

272.21   Administration of oaths and affirmations

                   An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:

                     (a)  by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or

                     (b)  as follows:

                              (i)  on behalf of the court and as directed by it;

                             (ii)  by a person (whether an Australian official or not) authorised by the court;

                            (iii)  at the place where the witness is to give the evidence.

272.22   Expenses

                   A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Subdivision.

272.23   Other laws about foreign evidence not affected

                   This Subdivision does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding for an offence against this Division.

Subdivision E Other rules about conduct of trials

272.24   Evidence relating to a person’s age

             (1)  For the purposes of this Division, evidence that a person was represented to the defendant as being under or of a particular age is, in the absence of evidence to the contrary, proof that the defendant believed that person to be under or of that age.

             (2)  In determining for the purposes of this Division whether a person is under 16, or was under 16 at a particular time, or how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:

                     (a)  the person’s appearance;

                     (b)  medical or other scientific opinion;

                     (c)  a document that is or appears to be an official or medical record from a country outside Australia;

                     (d)  a document that is or appears to be a copy of such a record.

             (3)  Subsection (2) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.

             (4)  If, on a trial for an offence against this Division, evidence may be treated as admissible because of subsection (2), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.

272.25   Alternative verdicts

             (1)  If, on a trial for an offence against section 272.7, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against section 272.9, it may find the defendant not guilty of the offence against section 272.7 but guilty of the offence against section 272.9.

             (2)  If, on a trial for an offence against section 272.8, the jury is not satisfied that the defendant is guilty of the offence, but is satisfied that he or she is guilty of an offence against subsection 272.10(1), it may find the defendant not guilty of the offence against section 272.8 but guilty of the offence against subsection 272.10(1).

272.26   Double jeopardy

                   If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.

272.27   Sentencing

             (1)  In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Subdivision B, the court must take into account the age and maturity of the person in relation to whom the offence was committed, so far as these matters are relevant and known to the court.

             (2)  The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in subsection 16A(2) of the Crimes Act 1914 ).

Division 273 Offences involving child pornography material or child abuse material outside Australia

Subdivision A Preliminary

273.1   Definitions

             (1)  Subject to subsections (2) and (3), an expression used in this Division that is defined in Part 10.6 has the same meaning in this Division as it has in that Part.

Note:          These expressions include child abuse material and child pornography material .

             (2)  A reference in this Division to a person having possession or control of material includes a reference to the person:

                     (a)  having possession of a computer or data storage device that holds or contains the material; or

                     (b)  having possession of a document in which the material is recorded; or

                     (c)  having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).

             (3)  A reference in this Division to a person producing, distributing, or obtaining material includes a reference to the person:

                     (a)  producing, distributing or obtaining material held or contained in a computer or data storage device; or

                     (b)  producing, distributing or obtaining a document in which the material is recorded.

             (4)  Section 473.4 applies in relation to this Division as if the reference in that section to Part 10.6 were a reference to this Division.

Note:          Section 473.4 sets out matters that may be taken into account in deciding whether particular material is offensive.

273.2   Who can be prosecuted for an offence committed overseas

                   A person must not be charged with an offence against this Division that the person allegedly committed outside Australia unless, at the time of the offence, the person was:

                     (a)  an Australian citizen; or

                     (b)  a resident of Australia; or

                     (c)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

                     (d)  any other body corporate that carries on its activities principally in Australia.

273.3   Double jeopardy

                   If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.

273.4   Saving of other laws

                   This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

Subdivision B Offences committed overseas involving child pornography material or child abuse material

273.5   Possessing, controlling, producing, distributing or obtaining child pornography material outside Australia

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  has possession or control of material; or

                             (ii)  produces, distributes or obtains material; or

                            (iii)  facilitates the production or distribution of material; and

                     (b)  the material is child pornography material; and

                     (c)  the conduct referred to in paragraph (a) occurs outside Australia.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to paragraph (1)(c).

Note:          For absolute liability , see section 6.2.

273.6   Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  has possession or control of material; or

                             (ii)  produces, distributes or obtains material; or

                            (iii)  facilitates the production or distribution of material; and

                     (b)  the material is child abuse material; and

                     (c)  the conduct referred to in paragraph (a) occurs outside Australia.

Penalty:  Imprisonment for 10 years.

             (2)  Absolute liability applies to paragraph (1)(c).

Note:          For absolute liability , see section 6.2.

Subdivision C Defences

273.7   Defences to offences against this Division

             (1)  A person is not criminally responsible for an offence against section 273.5 or 273.6 because of engaging in particular conduct if the conduct:

                     (a)  is of public benefit; and

                     (b)  does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person’s motives in engaging in the conduct are irrelevant.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

             (2)  For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

                     (a)  enforcing a law of the Commonwealth, a State or Territory, or a foreign country; or

                     (b)  monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or Territory or a foreign country; or

                     (c)  the administration of justice (whether within or outside Australia); or

                     (d)  conducting scientific, medical or educational research.

             (3)  Paragraph (2)(d) only applies if the person’s conduct was, in all the circumstances, reasonable having regard to the purpose mentioned in that paragraph.

             (4)  A person is not criminally responsible for an offence against section 273.5 or 273.6 if:

                     (a)  the person is, at the time of the offence:

                              (i)  a law enforcement officer; or

                             (ii)  an intelligence or security officer; or

                            (iii)  an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer; and

                     (b)  the person is acting in the course of his or her duties; and

                     (c)  the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

             (5)  A person is not criminally responsible for an offence against section 273.5 or 273.6 if the person engages in the conduct in good faith for the sole purpose of:

                     (a)  assisting the Australian Communications and Media Authority to detect:

                              (i)  prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992 ); or

                             (ii)  potential prohibited content (within the meaning of that Schedule);

                            in the performance of the Authority’s functions under Schedule 5 or Schedule 7 to that Act; or

                     (b)  manufacturing or developing, or updating, content filtering technology (including software) in accordance with:

                              (i)  a recognised alternative access-prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992 ); or

                             (ii)  a designated alternative access-prevention arrangement (within the meaning of clause 60 of that Schedule).

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3)).

Subdivision D Video link evidence

273.8   When court may take evidence by video link

                   In a proceeding for an offence against this Division, the court may, on application by a party to the proceeding, direct that a witness give evidence by video link if:

                     (a)  the witness will give the evidence from outside Australia; and

                     (b)  the witness is not a defendant in the proceeding; and

                     (c)  the facilities required by section 273.9 are available or can reasonably be made available; and

                     (d)  the court is satisfied that attendance of the witness at the court to give the evidence would:

                              (i)  cause unreasonable expense or inconvenience; or

                             (ii)  cause the witness psychological harm or unreasonable distress; or

                            (iii)  cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

                     (e)  the court is satisfied that it is consistent with the interests of justice that the evidence be taken by video link.

273.9   Technical requirements for video link

             (1)  A witness can give evidence under a direction only if:

                     (a)  the courtroom or other place in Australia where the court is sitting (the Australian location ); and

                     (b)  the place where the evidence is given (the overseas location );

are equipped with video facilities that:

                     (c)  enable appropriate persons at the Australian location to see and hear the witness give the evidence; and

                     (d)  enable appropriate persons at the overseas location to see and hear appropriate persons at the Australian location.

             (2)  In subsection (1):

appropriate persons means such persons as the court considers appropriate.

273.10   Application of laws about witnesses

                   A person who gives evidence under a direction is taken to give it at the courtroom or other place in Australia where the court is sitting.

Note:          This section has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.

273.11   Administration of oaths and affirmations

                   An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction may be administered either:

                     (a)  by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Australia where the court is sitting; or

                     (b)  as follows:

                              (i)  on behalf of the court and as directed by it;

                             (ii)  by a person (whether an Australian official or not) authorised by the court;

                            (iii)  at the place where the witness is to give the evidence.

273.12   Expenses

                   A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a direction by the court under this Subdivision.

273.13   Other laws about foreign evidence not affected

                   This Subdivision does not prevent any other law about taking evidence of a witness outside Australia from applying for the purposes of a proceeding for an offence against this Division.

10  Paragraphs 474.27(1)(b), (2)(b) and (3)(b) of the Criminal Code

Repeal the paragraphs.

11  Subsections 474.27(4) and (5) of the Criminal Code

Repeal the subsections.

12  Subsection 474.28(11) of the Criminal Code

Repeal the subsection.

13  Dictionary in the Criminal Code

Insert:

act of indecency has the meaning given by section 272.2.

14  Dictionary in the Criminal Code

Insert:

procure a person, in relation to sexual activity, includes:

                     (a)  encourage, entice or recruit the person in relation to that activity; or

                     (b)  induce the person (whether by threats, promises or otherwise) in relation to that activity.

15  Dictionary in the Criminal Code

Insert:

sexual activity means:

                     (a)  sexual intercourse; or

                     (b)  an act of indecency; or

                     (c)  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).

16  Dictionary in the Criminal Code

Insert:

sexual intercourse has the meaning given by section 272.3.

Surveillance Devices Act 2004

17  Subparagraph 30(1)(a)(iii)

Repeal the subparagraph.

18  Subparagraph 30(1)(a)(viii)

Omit “or 270”, substitute “, 270, 272 or 273”.

Telecommunications (Interception and Access) Act 1979

19  Subparagraphs 5D(2)(b)(viii) and (ix)

Repeal the subparagraphs.

20  Subsection 5D(2A)

Repeal the subsection.

21  Subparagraph 5D(3)(d)(xi)

Omit “(including an offence against Part IIIA of the Crimes Act 1914 )”.

22  Subsection 5D(3B)

Repeal the subsection.

23  Before subsection 5D(4)

Insert:

Sexual offences against children and offences involving child pornography

          (3C)  An offence is also a serious offence if:

                     (a)  it is an offence against Division 272 or 273, or section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of the Criminal Code ; or

                     (b)  the particular conduct constituting the offence otherwise involved, involves or would involve:

                              (i)  the production, publication, possession, supply or sale of, or other dealing in, child pornography; or

                             (ii)  consenting to or procuring the employment of a child, or employing a child, in connection with child pornography.