Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Schedule 15—Expanding the meaning of child abuse material and other consequential amendments

Schedule 15 Expanding the meaning of child abuse material and other consequential amendments

Part 1 Amendments

Crimes Act 1914

1  Subsection 3(1) (definition of child pornography material )

Repeal the definition.

2  Subsection 3(1)

Insert:

child sexual abuse offence means:

                     (a)  a Commonwealth child sex offence; or

                     (b)  an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2017 ; or

                     (c)  an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 ; or

                     (d)  a State or Territory registrable child sex offence.

3  Subsection 3(1) (subparagraph (a)(ii) of the definition of Commonwealth child sex offence )

Omit “child pornography material or”.

4  Subsection 3(1) (subparagraphs (a)(iii) and (iv) of the definition of Commonwealth child sex offence )

Omit “child pornography material,”.

5  Subsection 3(1) (note to the definition of Commonwealth child sex offence )

Repeal the note.

6  Subsection 3(1)

Insert:

Commonwealth child sexual abuse offence means a Commonwealth child sex offence, other than an offence against subsection 272.8(1) or (2), 272.9(1) or (2), section 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A or 474.24A, subsection 474.25A(1) or (2) or section 474.25B or 474.25C of the Criminal Code .

State or Territory registrable child sex offence means an offence:

                     (a)  that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and

                     (b)  in respect of which:

                              (i)  a child was a victim or an intended victim; or

                             (ii)  the offending involved child abuse material.

7  Paragraph 15GE(2)(w)

Repeal the paragraph, substitute:

                    (w)  dealings in child abuse material;

8  Paragraphs 15GE(3)(b) and (d)

Omit “child pornography material or”.

9  Paragraph 15Y(1)(cac)

Omit “child pornography material or”.

10  Part IE (heading)

Repeal the heading, substitute:

Part IE Forfeiture of child abuse material

11  Paragraph 23ZA(b)

Repeal the paragraph.

12  Paragraph 23ZA(c)

Omit “or child pornography material”.

13  Subparagraph 23ZC(1)(c)(ii)

Omit “or child pornography material”.

Criminal Code Act 1995

14  Division 273 of the Criminal Code (heading)

Repeal the heading, substitute:

Division 273 Offences involving child abuse material outside Australia

15  Subsection 273.1(1) of the Criminal Code (note)

Repeal the note, substitute:

Note:          One of those expressions is child abuse material .

16  Subdivision B of Division 273 of the Criminal Code (heading)

Repeal the heading, substitute:

Subdivision B Offences committed overseas involving child abuse material

17  Section 273.5 of the Criminal Code

Repeal the section.

18  Paragraph 273.7(1)(a) of the Criminal Code

Repeal the paragraph, substitute:

                     (a)  the person commits an offence against section 273.6 (possessing etc. child abuse material outside Australia) on 3 or more separate occasions; and

19  Subsections 273.7(2), (3), (5) and (7) of the Criminal Code

Omit “273.5 or”.

20  Section 273.8 of the Criminal Code

Omit “273.5 or” (wherever occurring).

21  Subsections 273.9(1), (4) and (5) of the Criminal Code

Omit “273.5 or”.

22  Paragraph 279.1(d) of the Criminal Code

Omit “child pornography material or”.

23  Subsection 470.4(1) of the Criminal Code (note)

Repeal the note, substitute:

Note:          One of those expressions is child abuse material .

24  Subdivision B of Division 471 of the Criminal Code (heading)

Repeal the heading, substitute:

Subdivision B Offences relating to use of postal or similar service for child abuse material

25  Sections 471.16, 471.17 and 471.18 of the Criminal Code

Repeal the sections.

26  Paragraph 471.22(1)(a) of the Criminal Code

Omit “one or more”, substitute “either”.

27  Subparagraphs 471.22(1)(a)(i) and (ii) of the Criminal Code

Repeal the subparagraphs.

28  Subsections 471.22(2), (3), (5) and (7) of the Criminal Code

Omit “471.16, 471.17,”.

29  Paragraph 471.23(b) of the Criminal Code

Omit “471.16, 471.17,”.

30  Section 473.1 of the Criminal Code (at the end of the definition of child abuse material )

Add:

               ; or (c)  material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

                              (i)  is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

                             (ii)  is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                     (d)  material the dominant characteristic of which is the depiction, for a sexual purpose, of:

                              (i)  a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

                             (ii)  a representation of such a sexual organ or anal region; or

                            (iii)  the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

                            in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                     (e)  material that describes a person who is, or is implied to be, under 18 years of age and who:

                              (i)  is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

                             (ii)  is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                      (f)  material that describes:

                              (i)  a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

                             (ii)  the breasts of a female person who is, or is implied to be, under 18 years of age;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

31  Section 473.1 of the Criminal Code (definition of child pornography material )

Repeal the definition.

32  Subdivision D of Division 474 of the Criminal Code (heading)

Repeal the heading, substitute:

Subdivision D Offences relating to use of carriage service for child abuse material

33  Sections 474.19, 474.20 and 474.21 of the Criminal Code

Repeal the sections.

34  Paragraph 474.24A(1)(a) of the Criminal Code

Omit “one or more”, substitute “either”.

35  Subparagraphs 474.24A(1)(a)(i) and (ii) of the Criminal Code

Repeal the subparagraphs.

36  Subsections 474.24A(2), (3), (5) and (7) of the Criminal Code

Omit “474.19, 474.20,”.

37  Paragraph 474.24B(b) of the Criminal Code

Omit “474.19, 474.20,”.

38  Paragraph 474.25(b) of the Criminal Code

Repeal the paragraph, substitute:

                     (b)  is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is child abuse material; and

Customs Act 1901

39  Paragraph 233BAB(1)(h)

Omit “child pornography or of”.

40  Subsection 233BAB(3)

Repeal the subsection.

41  At the end of subsection 233BAB(4)

Add:

               ; or (c)  that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

                              (i)  is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

                             (ii)  is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                     (d)  the dominant characteristic of which is the depiction, for a sexual purpose, of:

                              (i)  a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

                             (ii)  a representation of such a sexual organ or anal region; or

                            (iii)  the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

                            in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                     (e)  that describes a person who is, or is implied to be, under 18 years of age and who:

                              (i)  is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

                             (ii)  is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

                      (f)  that describes:

                              (i)  a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

                             (ii)  the breasts of a female person who is, or is implied to be, under 18 years of age;

                            and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

42  Subsection 233BAB(4A)

Omit “subsections (3) and (4)”, substitute “subsection (4)”.

Telecommunications (Interception and Access) Act 1979

43  Subsection 5D(3B) (heading)

Repeal the heading, substitute:

Sexual offences against children and offences involving child abuse material or harm to children

44  Subparagraph 5D(3B)(b)(i)

Omit “child pornography”, substitute “child abuse material (within the meaning of Part 10.6 of the Criminal Code )”.

45  Subparagraph 5D(3B)(b)(ii)

Omit “child pornography”, substitute “such material”.

Part 2 Application and transitional provisions

46  Controlled operations

Paragraph 15GE(2)(w) of the Crimes Act 1914 , as in force on and after the commencement of this item, applies in relation to a controlled operation authorised on or after that commencement (whether the offence was committed before, on or after that commencement).

47  Serious offences— Telecommunications (Interception and Access) Act 1979

Subsection 5D(3B) of the Telecommunications (Interception and Access) Act 1979 , as in force on and after the commencement of this item, applies in relation to an offence committed on or after that commencement.

48  Aggravated offences involving conduct on 3 or more occasions and 2 or more people

The following table has effect:

 

Transitional—aggravated offences involving conduct on 3 or more occasions and 2 or more people

Item

This provision of the Criminal Code has effect at and after the time this item commences…

as if a reference in the provision to this provision of that Code…

included a reference to this provision of that Code, as in force immediately before that time…

1

sections 273.7 and 273.8

section 273.6

section 273.5

2

sections 471.22 and 471.23

section 471.19

section 471.16

3

sections 471.22 and 471.23

section 471.20

section 471.17

4

sections 474.24A and 474.24B

section 474.22

section 474.19

5

sections 474.24A and 474.24B

section 474.23

section 474.20

49  Section 7 of the Acts Interpretation Act 1901 not limited

This Part does not limit the operation of section 7 of the Acts Interpretation Act 1901 .