House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (the Act).

Clause 2 - Commencement

2. Subclause 2(1) provides for the commencement of each provision in the Act, as set out in the table contained in the subclause.

3. Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere covered by this table commence the day the Act receives Royal Assent.

4. Item 2 of the table provides that Schedule 1 to the Act commences on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives Royal Assent, they commence on the day after the end of that period.

5. Item 3 of the table provides that Schedule 2 to the Act commences immediately after the commencement of the Schedules 3 to 7 to the Act, as covered by table item 4.

6. Item 4 of the table provides that Schedules 3 to 7 to the Act commence the day after the Act receives the Royal Assent.

7. A note to the table establishes that this table relates only to the provisions of this Act as originally enacted. This table will not be amended to deal with any later amendments of this Act.

8. Subclause 2(2) clarifies that any information in column 3 of the table is not part of this Act. This subclause sets out that information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3 - Schedules

9. This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule and that any other item in the Schedule has effect according to its terms.

Schedule 1 - Failing to protect children from, or report, child sexual abuse offences

Crimes Act 1914

Item 1 - After paragraph 15Y(1)(cac)

10. This item includes Division 273B as a Division to which Part IAD of the Crimes Act 1914 (Crimes Act) applies. This will ensure the special rules for children involved in proceedings will be extended to any child witness involved in legal proceedings for the failure to protect and failure to report offences. These protections recognise the vulnerability of child victims and child witnesses in proceedings relating to sexual offences. Noting the nature of the conduct to be captured by the failure to protect and failure to report offences, it is important to extend the application of the protections to Division 273B.

Criminal Code Act 1995

Item 2 - Before paragraph 5(2)(m)

11. This item inserts Division 273B into subsection 5(2) of the Criminal Code Act 1995 (Criminal Code). This insertion means the Minister administering the Australian Federal Police Act 1979 is the rule-maker for any regulations made for the purposes of Division 273B.

Item 3 - Before Division 274 of the Criminal Code

12. Item 3 inserts a new 'Division 273B - Protection of children' into the Criminal Code.

Subdivision A - Preliminary

Section 273B.1 - Definitions

13. Section 273B.1 inserts definitions for 'child sexual abuse offence', 'Commonwealth officer' and 'State or Territory registrable child sex offence' for the purpose of Division 273B.

'Child sexual abuse offence'

14. 'Child sexual abuse offence' is defined to mean:

•

a Commonwealth child sex offence within the meaning of the Crimes Act, or

•

a State or Territory registrable child sex offence.

15. A Commonwealth child sex offence is currently defined in section 3 of the Crimes Act. A 'State or Territory registrable child sex offence' is further defined (refer to paragraph 19) for the purposes of section 273B.1.

16. The definition of 'child sexual abuse offence' is used in the new offence provisions at section 273B.4 and section 273B.5 to limit the circumstances in which an act or omission is criminalised to situations where conduct amounts to a Commonwealth, State or Territory child sex offence. It is important to allow the conduct captured to vary from jurisdiction to jurisdiction to ensure a person is only required to report or protect against conduct that is criminal in that jurisdiction.

'Commonwealth officer'

17. The definition of Commonwealth officer defines the classes of persons to whom the offences in Division 273B apply. The definition is intended to bring persons who work for, or on behalf of, the Commonwealth within the scope of the failure to protect and failure to report offences.

18. Paragraphs (j) and (k) bring an individual who is, or an officer or employee of, a contractor or subcontractor of the Commonwealth or a Commonwealth authority within the definition of Commonwealth officer. The definition does not capture grant recipients.

'State or Territory registrable child sex offence'

19. 'State or Territory registrable child sex offence' is used as a component of the term 'child sexual abuse offence', which is defined above. The term is defined to mean an offence where a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing, and in respect of which, a child was a victim, an intended victim, or the offending involved child pornography material or child abuse material.

Section 273B.2 - Geographical Jurisdiction

20. This Section will apply Category B geographical jurisdiction, as outlined in section 15.2 of the Criminal Code, to each offence within Division 273B.

Section 273B.3 - Double jeopardy

21. Section 273B.3 states that any person, convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, cannot be convicted of an offence against this Division in respect of that conduct.

Subdivision B - Offences relating to the protection of children

Section 273B.4 - Failing to protect child at risk of child sexual abuse offence

Failing to protect child at risk of child sexual abuse offence

22. Section 273B.4 introduces the new offence of failure to protect a child at risk of a child sexual abuse offence. A person (the defendant) commits an offence if:

•

the defendant is a Commonwealth officer

•

there is another person aged under 18 (the child) under the defendant's care, supervision or authority, in the defendant's capacity as a Commonwealth officer

•

the defendant knows there is a substantial risk that a person (the potential offender) will engage in conduct in relation to the child under their care, supervision or authority

•

such conduct, if engaged in, would constitute a child sexual abuse offence

•

the defendant, because of the defendant's position as a Commonwealth officer, has the actual or effective responsibility to reduce or remove that risk, and

•

the defendant negligently fails to reduce or remove that risk.

23. Paragraph 273B.4(1)(a) requires the prosecution to prove that the defendant knew or was reckless as to the fact that they were a Commonwealth officer. Commonwealth officer is defined at section 273B.1.

24. Paragraph 273B.4(1)(b) requires the prosecution to prove that there was another person, or persons, aged under 18 who were in the defendant's care, supervision or authority in their capacity as a Commonwealth officer. The defendant's care, supervision or authority exercised in relation to the child or children need not be the primary function of the Commonwealth officer's role, but it must form at least part of their official duties. The prosecution will have to prove that the defendant knew, or was reckless as to the fact, that a child or children were under their care, supervision or authority.

25. It will be for the trier of fact to determine in the specific circumstances of the case whether the child was under the care, supervision or authority of the person. Factors that may be considered in forming this view include whether the person, as part of their role, provides at least some of a child's daily needs, was responsible for a child overnight, or has the power to make decisions in relation to, and on behalf of, the child.

26. For example, a police officer who is in charge of a watchhouse where a child is being detained is likely to be regarded as exercising care, supervision or authority over a child. However, that same police officer is unlikely to be regarded as having care, supervision or authority over children generally in the community while on patrol. Another example would be a Commonwealth contractor who is engaged to run overnight camps for young athletes.

27. Paragraph 273B.4(1)(c) requires the prosecution to prove that the defendant knew of a substantial risk that a person will engage in conduct in relation to a child under the defendant's care, supervision or authority.

28. Paragraph 273B.4(1)(d) requires the prosecution to prove that, such conduct, if engaged in, would constitute a child sexual abuse offence. Child sexual abuse offence is defined at proposed section 273B.1.

29. Paragraph 273B.4(1)(e) requires the prosecution to prove that the defendant has the actual or effective responsibility, because of their position as a Commonwealth officer, to reduce or remove the risk of a child sexual abuse offence being committed in relation to a child or children under the care, supervision or authority of the defendant. While it could be said that everyone has some ability to reduce a risk to a child, this requirement is targeted at Commonwealth officers in positions of power or authority who have the actual or effective responsibility of reducing or removing the risk of harm for children under their care, supervision or authority. Responsibility to protect children from child sexual abuse may be explicit or implicit in their role as a Commonwealth officer.

30. Paragraph 273B.4(1)(f) requires the prosecution to prove that the defendant negligently failed to reduce or remove the substantial risk. To satisfy this element of the offence, the Commonwealth officer's steps to reduce or remove the risk must involve such a great falling short of the standard that a reasonable person would exercise, and such a high risk that the risk to the child will not be reduced or removed, that in the circumstances their conduct merits criminal punishment. A Commonwealth officer is not required to eliminate all possible risks nor are they expected to take extraordinary measures - rather they are required to take the steps a reasonable person would be expected to in the circumstances. This limb of the offence may criminalise omissions as well as positive acts.

31. For example, depending on the circumstances, in order to reduce or remove the risk and avoid liability the Commonwealth officer may reasonably be expected to suspend an employee, provide online safety training to children or ensure an employee is not allowed unsupervised access to children.

32. The maximum penalty for the offence under subsection 273B.4(1) is five years' imprisonment. This maximum penalty reflects the principle in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers that an offence should have a 'maximum penalty that is adequate to deter and punish a worst case offence' (page 37). While the penalty is significantly lower than the penalties attracted by conduct that involves the direct sexual abuse of children, it is sufficiently high to reflect the seriousness of failure to protect children for whom a person is responsible from sexual abuse.

Absolute liability

33. Subsection 273B.4(2) provides that absolute liability applies to the circumstance that 'such conduct, if engaged in, would constitute a child sexual abuse offence' under paragraph 273B.4(1)(d).

34. This is appropriate as the question of whether particular conduct constitutes a 'child sexual abuse offence' as defined in section 273B.1 is a technical legal question, and a person's ignorance of the relevant law should not excuse culpability. This approach is consistent with the guidance on page 23 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. It is also consistent with section 9.3 of the Criminal Code.

Certain matters not required to be proved

35. Paragraphs 273B.4(3)(a) and (b) clarify that subsection 273B.4(1) applies regardless of whether the prosecution can prove who the potential offender was, or which specific child was at risk. For example, a contractor providing educational services to children may observe obscene images being transmitted to a child in their care. While the contractor may not know the source of the images, they would be aware of the conduct, which would amount to a child sexual abuse offence.

36. Alternatively, a supervisor of children may observe a colleague who is responsible for providing health care services to children watching child sexual abuse material. In the circumstances, the supervisor may know there is a substantial risk that the person will commit a child sexual abuse offence in relation to a child in their care, but the supervisor does not know which child.

37. Paragraph 273B.4(3)(c) also clarifies that a person can be found guilty of an offence against subsection 273B.4(1) regardless of whether a child sexual abuse offence was actually committed in relation to a child under their care, supervision or authority.

Section 273B.5 - Failing to report child sexual abuse offence

38. Section 273B.5 introduces the new offences of failure to report child sexual abuse.

Offence based on reasonable belief

39. Subsection 273B.5(1) provides that a person (the defendant) commits an offence if:

•

the defendant is a Commonwealth officer

•

there is another person aged under 18 (the child) under the defendant's care or supervision, in the defendant's capacity as a Commonwealth officer

•

the defendant knows of information that would lead a reasonable person to believe that a person (the potential offender) has engaged in, or will engage in, conduct in relation to a child

•

such conduct, if engaged in, would constitute a child sexual abuse offence, and

•

the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

o

the police force or police service of a State or Territory, or

o

the Australian Federal Police.

40. Paragraph 273B.5(1)(a) requires the prosecution to prove that the defendant knew or was reckless as to the fact that they were a Commonwealth officer. Commonwealth officer is defined at section 273B.1.

41. Paragraph 273B.5(1)(b) requires the prosecution to prove that there was another person, or persons, aged under 18 who were in the defendant's care or supervision in their capacity as a Commonwealth officer. The defendant's care or supervision exercised in relation to the child or children need not be the primary function of the Commonwealth officer's role, but it must form at least part of their official duties. The prosecution will have to prove that the defendant knew, or was reckless as to the fact, that a child or children were under their care or supervision.

42. It will be for the trier of fact to determine in the specific circumstances of the case whether the child was under the care or supervision of the person. Factors that may be considered in forming this view include whether the person, as part of their role, provides at least some of a child's daily needs, was responsible for a child overnight, or has the power to make decisions in relation to, and on behalf of, the child.

43. Paragraph 273B.5(1)(c) requires the prosecution to prove that the defendant knew of information that would lead a reasonable person to believe that a person has or will engage in conduct in relation to a child. While the defendant needs to know of the information, it does not need to be proven that they personally had formed the belief that conduct has occurred or will occur in relation to the child. That belief is objective and requires the prosecution to prove that a reasonable person, who had the same information, would have formed the belief. The mental threshold of belief is lower than knowledge as an individual can believe something but not know it.

44. Under paragraph 273B.5(1)(d) such conduct, if engaged in, must constitute a child sexual abuse offence. Child sexual abuse offence is defined at proposed section 273B.1.

45. Paragraph 273B.5(1)(e) requires the prosecution to prove that the defendant failed to disclose the information they had, as soon as practicable after coming to it, to the police force or police service of a State or Territory or the Australian Federal Police. This limb of the offence expressly applies to an omission.

46. The maximum penalty for the offence under subsection 273B.5(1) is three years' imprisonment. This maximum penalty reflects the principle in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers that an offence should have a 'maximum penalty that is adequate to deter and punish a worst case offence' (page 37). The penalty is lower than the penalty for failing to protect as the defendant had a lesser degree of responsibility for protecting the child at risk. The lower penalty also reflects the lower mental threshold, which triggers the offence.

Offence based on reasonable suspicion

47. Subsection 273B.5(2) provides that a person (the defendant) commits an offence if the prosecution proves all of the same elements as in subsection 273B.5(1), except that for this offence the defendant must know of information that would lead a reasonable person to suspect that the potential offender has or will engage in conduct in relation to the child. While the defendant needs to know of the information, it does not need to be proven that they personally had formed the suspicion that the conduct has occurred or will occur. That suspicion is objective and requires the prosecution to prove that a reasonable person, who had the same information, would have formed the suspicion.

48. A reasonable person may suspect that a potential offender will engage in conduct in relation to a child if the person imagines that the conduct is likely but no conclusion or belief has been reached.

49. Paragraph 273B.5(2)(d) separately requires that the conduct, if engaged in, must constitute a child sexual abuse offence.

50. The maximum penalty for the offence under subsection 273B.5(2) is two years' imprisonment. This maximum penalty reflects the principle in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers that an offence should have a 'maximum penalty that is adequate to deter and punish a worst case offence' (page 37). The penalty is lower than the penalty for failing to protect as the defendant had a lesser degree of responsibility for protecting the child at risk. The lower penalty relative to the offence in subsection 273B.3(1) also reflects the lower mental threshold, which triggers the offence.

Absolute liability

51. Subsection 273B.5(3) provides that absolute liability applies to the circumstance that 'such conduct, if engaged in, would constitute a child sexual abuse offence' under paragraphs 273B.5(1)(d) and (2)(d).

52. This is appropriate as the question of whether particular conduct constitutes a 'child sexual abuse offence' as defined in section 273B.1 is a technical legal question, and a person's ignorance of the relevant law should not excuse culpability. This approach is consistent with the guidance on page 23 of the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. It is also consistent with section 9.3 of the Criminal Code.

Defences

53. Subsection 273B.5(4) contains a range of defences for the two failure to report offences.

54. Paragraph 273B.5(4)(a) provides that a defendant will not be guilty of an offence against subsection (1) or (2) if the defendant reasonably believes that the information is already known to a police force or police service of a State or Territory, the Australian Federal Police or a person or body the defendant is statutorily required to report to. For example, this provision will protect a defendant who reasonably believed that a colleague who had witnessed the same conduct had reported the information to the police or an appropriate body under a mandatory reporting scheme.

55. Paragraph 273B.5(4)(b) provides that a defendant will not be guilty of an offence against subsection (1) or (2) if the defendant has already disclosed the information to a person or body for the purposes of a scheme mentioned in subparagraph (a)(iii). This defence ensures that Commonwealth officers who fall within a mandatory reporting or reportable conduct scheme are not required to dual report in order to comply with both obligations.

56. Paragraph 273B.5(4)(c) provides that a defendant will not be guilty of an offence against subsection (1) or (2) if the defendant reasonably believes that the disclosure of the information would put the safety of any person, other than the potential offender, at risk. For example, this provision will protect a defendant who is worried they themselves or the victim may be in danger if they report the sexual abuse of a child under their care. This defence is important to avoid the criminalisation of a failure of a person to take an action that they reasonably believed would risk their safety.

57. Paragraph 273B.5(4)(d) provides that a defendant will not be guilty of an offence against subsection (1) or (2) if the information known by the defendant is already in the public domain. For example, this provision will protect a Commonwealth officer who sees on the news that one of the children they supervise has been sexually abused. In this situation, it is not expected that the Commonwealth officer report the abuse as it is already known and in the public domain.

58. The defendant has an evidentiary burden in relation to making out a defence contained in subsection 273B.5(4). This is appropriate in this instance as the information to prove their existence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

59. Subsection 273B.5(5) provides that it is not an excuse for an individual to fail to disclose information as mentioned in paragraph 273B.5(1)(e) or 273B.5(2)(e) on the ground that disclosing information might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability. However, subsections 273B.9(9) and 273B.9(10) provide further clarification as to how the information can be used against the discloser.

60. Subsection 273B.5(5) explicitly abrogates the privilege against self-incrimination. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that the abrogation of this privilege may be justified where its use could seriously undermine the effectiveness of a regulatory scheme and prevent the collection of evidence.

61. The Royal Commission identified underreporting as a significant barrier to victims and survivors of child sexual abuse accessing justice. Children are likely to have fewer opportunities and less ability to report the abuse to police or to take effective steps to protect themselves, leaving them particularly in need of the active assistance and protection of persons charged with providing care, supervision or authority. The Royal Commission also identified that, perhaps more so than with other serious criminal offences, those who commit child sexual abuse offences may have multiple victims and may offend against particular victims repeatedly.

62. These unique circumstances justify overriding the privilege against self-incrimination to achieve the objective of encouraging all Commonwealth officers who provide care, supervision or exercise authority in relation to children to report abuse or take protective actions to protect against abuse. For example, a person should not be excused from this obligation if they are concerned that reporting that an employee was abusing a child will expose that they had not ensured that the employee held a valid working with children check card.

63. It is also pertinent to note that information disclosed pursuant to this offence is subject to a 'use immunity' under subsection 273B.9(10), preventing this information from being used in any 'relevant proceedings' against the discloser. This is in compliance with the principles at pages 96-97 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Certain matters not required to be proved

64. Subsection 273B.5(6) outlines the matters the prosecution is not required to prove for a proceeding under the failure to report offences. It states subsections 273B.5(1) and 273B.5(2) apply regardless of whether or not:

•

the child can be identified as a specific person

•

any person actually believes or suspects the matter mentioned in paragraphs 273B.5(1)(c) or 273B.5(2)(c)

•

the potential offender can be identified as a specific person, and

•

a child sexual abuse offence is or was actually committed in relation to a child.

65. Clarifying that a defendant does not need to know who the potential offender is ensures that they will report their suspicions or beliefs even if they do not know who the offender is. For example, if a Commonwealth officer sees marks on a child under their care that indicates the child may have been sexually abused, the intention is they would report that information without waiting to determine the identity of the offender. Similarly, if a Commonwealth officer who supervises children walks in on one of their colleagues watching child abuse material, the intention is for them to report that information rather than wait to determine which specific child their colleague might try to assault. The information will be valuable to police to investigate any potential offending or ensure protective actions are taken.

Alternative verdict

66. Subsection 273B.5(7) provides that a trier of fact, if not satisfied that the person is guilty of an offence against subsection (1), is however satisfied beyond reasonable doubt that the person is guilty of an offence against subsection (2), it may find the person guilty of the offence against subsection (2).

67. Subsection 273B.5(8) provides that subsection (7) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence against subsection (2).

Subdivision C - Rules about conduct of trials

Section 273B.6 - Consent to commence proceedings

68. This section requires the Attorney-General to consent to any proceeding for an offence against this Division. A person may be arrested, charged or remanded in connection with one or more of the offences, but the proceedings cannot commence until the consent has been given. The intention of this section is to ensure that a proposed prosecution is scrutinised and a judgement made about its appropriateness before it proceeds. This extra level of scrutiny is important to avoid unintended consequences, in particular, in light of the fact that the offences criminalise omissions to act.

Section 273B.7 - Evidence relating to a person's age

69. This section outlines the evidence that is admissible for the purposes of determining the age of a person at a particular time. This ensures consistency with other similar provisions in the Criminal Code.

Subdivision D - Relationship with other laws

Section 273B.8 - Relationship with State and Territory laws

70. This section operates to exclude a law of a State or Territory that has the effect of making a Commonwealth officer liable to be prosecuted for an offence against any law for failing to:

•

reduce or remove a risk of a child being subjected to conduct constituting a child sexual abuse offence, or

•

disclose to a police force or police service, information relating to whether a person has engaged, or will engage, in conduct constituting a child sexual abuse offence.

71. This section ensures a Commonwealth officer will not need to comply with dual obligations across Australia. For example, if a Commonwealth officer is working in Victoria, they only have to comply with the Commonwealth criminal offences of failure to protect and report and not the Victorian equivalents. It will also ensure that Commonwealth officers working across multiple jurisdictions have clear and consistent obligations.

72. However, while this section prevents the operation of comparable failure to report and protect offences for Commonwealth officers, this section does not affect the operation of mandatory reporting or reportable conduct schemes as they may apply from time to time to Commonwealth officers. At present, these reporting schemes rarely contain criminal penalties for failing to comply with their respective obligations and where they do contain criminal penalties the person is required to report to a body other than a police force or service.

Section 273B.9 - Protection from other laws etc. for complying with this Division

73. This section sets out the protections that will be afforded to persons who protect children from sexual abuse and report instances of child sexual abuse in avoidance, or purported avoidance, of liability for an offence against this Division. These protections are crucial in reassuring and encouraging people to report as information provided to the Royal Commission showed that people are reluctant to report child sexual abuse due to a fear of dismissal or reprisal in the workplace.

Scope

74. Subsection 273B.9(1) sets out the meaning of 'protected conduct' for the purpose of the section. A person who believes themselves to be a Commonwealth officer and engages in conduct in an attempt to avoid liability for an offence will still be afforded protection if they were in fact not a Commonwealth officer, so long as their conduct was genuine and proportionate for the purpose of avoiding liability should they have been a Commonwealth officer.

75. In determining whether the conduct constituted a 'genuine and proportionate' attempt to avoid liability for the purpose of subsection 273B.9(1)(b), a court could take into account a range of factors, including (but not limited to) whether the person's conduct was a grossly disproportionate response to avoid liability against this Division.

76. A person's conduct may be a genuine and proportionate attempt to avoid liability under the Division even if they have an ulterior motive for engaging in the conduct. For example, a person may not be excluded from the scope of the protections offered by subsection 273B.9(1) if they report information that would lead a reasonable person to believe that a person will engage in a child sexual abuse offence but also held an ulterior motive for reporting, such as a personal dislike for the potential offender.

77. Additionally, a person may be within the scope of the protections offered by subsection 273B.9(1) if the person reasonably believes themselves to be a Commonwealth officer and under a requirement to report, even if the person is in fact not a Commonwealth officer.

78. Subsections 273B.9(2) and 273B.9(3) provide that the protections provided by the section do not apply in relation to proceedings for knowingly making a statement that is false or misleading.

79. Subsection 273B.9(4) provides that the section does not prevent a person from being liable in any relevant proceedings for conduct of the person that is revealed by a disclosure of information. This is distinct from the protections provided by the section in relation to the protected conduct.

Protection against liability for engaging in protected conduct

80. Subsection 273B.9(5) provides that a person who engages in protected conduct (as defined in subsection 272B.9(1)) is not subject to any liability for doing so, no contractual or other remedy may be enforced, or contractual or other right exercised, against the person on the basis of the conduct, and is not to be considered to have breached any professional ethics in respect of the conduct. Professional ethics are non-exhaustively defined at subsection 273B.9(6). While Division 273B does not override existing legal obligations of confidentiality, such as legal professional privilege, it does provide protection to people who breach those obligations in purported avoidance of liability for an offence against this Division.

81. For example, a person who reports abuse to police to avoid liability under section 273B.5(1) cannot have their employment contract terminated for a breach of confidentiality or be found by a professional ethics body to have breached legal professional privilege. This ensures that, for example, where information comes to a legal advisor under the protection of legal professional privilege, the advisor will still be able to rely on this privilege to resist disclosing the information to authorities, but will not be subject to liability or penalty if they do report to police as a result of subsection 273B.9(1).

82. Paragraph 273B.9(7)(a) provides that, without limiting subsection (5), if a person engages in protected conduct by disclosing information, the person has qualified privilege in proceedings for defamation relating to the disclosure and is not liable to an action for defamation at the suit of another person relating to the disclosure. Further, paragraph 273B.9(7)(b) provides that a contract to which the person is a party may not be terminated on the basis that the protected conduct constitutes a breach of the contract.

83. Subsection 273B.9(8) clarifies that paragraphs 273B.9(5)(a) and (7)(a) do not affect any other right, privilege or immunity the person has as a defendant in proceedings, or an action, for defamation.

84. Subsection 273B.7(9) provides remedies the court may order if satisfied that an employer has purported to terminate the contract of an employee who engaged in protected conduct on the basis of the person engaging in that conduct.

Admissibility of evidence

85. Subsection 273B.9(10) provides a use immunity for an individual engaging in protected conduct, by providing that information disclosed as part of the protected conduct is not admissible in evidence against the individual in relation to liability in any relevant proceedings. Subsection 273B.9(11) clarifies that any information obtained as an indirect consequence of a disclosure of information that constitutes protected conduct is not excluded from being admissible by subsection 273B.9(10).

86. Applying a derivative use immunity would defeat the central purpose of the failure to report offence as, where a perpetrator of child sexual abuse discloses information to authorities, this would severely undermine the ability of law enforcement to investigate and subsequently prosecute this criminal conduct.

87. For example, where a person makes such a disclosure, an investigator in a criminal matter relating to the perpetrator of the conduct that was not reported may be required to prove the provenance of all subsequent evidentiary material before it can be admitted. This creates an unworkable position wherein pre-trial arguments could be used to inappropriately undermine and delay the resolution of charges against the accused.

88. It should be noted that a person will only be compelled to make a disclosure to the police, which are bound by extensive obligations under State, Territory and Commonwealth privacy law. It should also be noted that the offence will not affect the inherent power of the court to manage criminal prosecutions that are brought before it where it finds that those proceedings have been unfairly prejudiced or that there is a real risk of prejudice to the accused.

Item 4 - At the end of section 279.1 of the Criminal Code

89. This item includes Division 273B as a proceeding to which Division 279 - Video link evidence in the Criminal Code applies.

Item 5 - Application

90. This item provides that subparagraphs 273B.5(1)(c)(i) and (2)(c)(i) only apply in relation to conduct engaged in on or after the commencement of this item. This ensures that Commonwealth officers are not liable for failing to report historic child sexual abuse offences.

Schedule 2 - Possession of child-like sex dolls etc.

Crimes Act 1914

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

91. This item amends subsection 3(1) of the Crimes Act to expand the definition of 'Commonwealth child sex offence' to include the new Division 273A of the Criminal Code. This definition is used in Part IE of the Crimes Act and the amendment will ensure, consistent with other forms of child abuse material, that dolls or other objects connected with the commission of an offence under Division 273A of the Criminal Code can be forfeited under Part IE of the Crimes Act.

Item 2 - After paragraph 15GE(3)(a)

92. This item amends paragraph 15GE(3)(a) to explicitly provide that an offence against the new Division 273A of the Criminal Code is a serious Commonwealth offence for the purposes of Part IAB of the Crimes Act.

Criminal Code Act 1995

Item 3 - After paragraph 5(2)(l)

93. Item 3 inserts Division 273A into subsection 5(2) of the Criminal Code to provide that the Minister administering the Australian Federal Police Act 1979 is the rule-maker for regulations made for the purposes of Division 273A.

Item 4 - After Division 273 of the Criminal Code

94. Item 4 inserts new 'Division 273A-Possession of child-like sex dolls etc.' This Division includes new sections 273A.1 and 273A.2.

Section 273A.1 Possession of child-like sex dolls etc.

95. Section 273A.1 inserts a new offence into the Criminal Code of possessing a doll or other object that resembles a child or part of a child and a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse.

96. This offence will, in particular, target the possession of three-dimensional human-like dolls that resemble children and have imitation orifices that are intended to be used for the purpose of simulating sexual intercourse. This offence only applies to conduct in Australia.

97. Paragraph 273A.1(a) requires the person to intentionally possess a doll or other object. This paragraph is not limited to complete dolls and is intended to capture parts of dolls as well as similar objects that are developed using emerging technology such as child-like sex robots.

98. Paragraph 273A.1(b) provides that the doll or other object must resemble a person who is, or appears to be, under 18 years of age, or a part of the body of such a person. There is no requirement that the item resembles an actual child, or that the resemblance is based on an actual child. Child-like sex dolls vary in facial appearance, proportions, height, size and functionality. A doll or other object may be captured by this paragraph despite possessing one or more adult features, for example developed breasts or make-up. Consideration should be given to the characteristics of the doll in its entirety, including its functionality, proportionality, physical features and anything else that provides context to the purpose and age resemblance of the doll.

99. Paragraph 273A.1(c) requires that a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse. This is an objective test focused on the function or capability of the doll or other object. The subjective intention of the person that possesses the doll is not a relevant consideration in proving this limb of the offence. Sexual intercourse is defined in section 272.4 of the Criminal Code. Simulating sexual intercourse involves a person engaging in the range of conduct outlined in section 272.4 in relation to the doll or other object in place of another person.

100. The penalty for the offence is a maximum of 15 years' imprisonment. This maximum penalty reflects the principle in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers that an offence should have a 'maximum penalty that is adequate to deter and punish a worst case offence' (page 37). This penalty appropriately reflects the seriousness of the misconduct captured by the offence and is equivalent to the penalties for offences such as possession, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service (section 471.17) or carriage service (section 474.20).

Section 273A.2 Defences

101. Section 273A.2 provides for a set of circumstances in which a person is not criminally responsible for an offence against section 273A.1. The defences are equivalent to the defences at section 471.18, which apply in relation to using a postal service for child abuse material and possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal service. The defences will protect people who have legitimate reasons for possessing child-like sex dolls or other similar objects.

102. Some of the defences in proposed section 273A.2 would be covered by 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 possession of child-like sex dolls etc., particularly as the lawful authority defence only applies to conduct justified or excused by or under Commonwealth law.

103. Subsection 273A.2(1) will provide a defence for persons who engage in particular conduct that is of public benefit and does not extend 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.

104. Subsection 273A.2(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 subsection 273A.2(2) it will be considered to be 'of public benefit' for the purposes of subsection 273A.2(1). It will be a question of fact, to be determined by the trier 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.

105. Paragraph 273A.2(2)(a) covers conduct that is necessary for, or of assistance in, enforcing a law of the Commonwealth, a State or a Territory. This defence will have very limited application and will be 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 273A.2(2)(a). For example, this defence would apply where an expert is assisting a law enforcement agency to determine whether a doll resembles a child and the expert possesses the doll for the purposes of the examination.

106. Paragraph 273A.2(2)(b) covers conduct that is necessary for, or of assistance in, monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory. This defence will provide protection for officers of government agencies involved in monitoring and investigative activity related to regulatory schemes that they administer.

107. Paragraph 273A.2(2)(c) covers conduct that is necessary for, or of assistance in, the administration of justice. 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 such as section 273A.1. The types of people covered by the defence will 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.

108. Paragraph 273A.2(2)(d) covers conduct that is necessary for, or of assistance in, conducting scientific, medical or educational research that has been approved by the Australian Federal Police Minister in writing for the purposes of this section. This defence will ensure that legitimate research dealing with forms of child abuse material such as child-like sex dolls can be undertaken.

109. Subsection 273A.2(3) provides a defence in relation to section 273A.1 for law enforcement officers, intelligence or security officers 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.

110. This defence will apply in circumstances where, for example, a law enforcement officer has possession of a child-like sex doll having seized the doll during the execution of a search warrant. However, if the same officer intentionally took the doll home the officer may not be covered by this defence.

111. The defendant bears an evidential burden in relation to subsections 273A.2(1) and 273A.2(3). The use of the defence in subsection 471.18(1) is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The Guide refers to the principle that it is legitimate to cast a matter as a defence where a matter is peculiarly within the defendant's knowledge and is not available to the prosecution.

112. Subsection 273A.2(4) provides that the definitions in Part 10.6 of the Criminal Code, which relate to telecommunications offences, will also apply to this section.

Section 273A.3 Saving of other laws

113. Section 273A.3 provides that 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.

114. Section 273A.3 is intended to ensure that State and Territory offences criminalising dealings with child-like sex dolls operate concurrently alongside the offences in this Division. This will allow jurisdictions to continue to cater their laws to suit their particular environments.

Item 5 - Application provision

115. This item provides that section 273A.1 applies in relation to a doll or other object possessed on or after the commencement of this item, irrespective of whether the doll or other object was obtained by a person before, on or after that commencement.

Item 6 - Section 473.1 of the Criminal Code (at the end of the definition of child abuse material )

116. This item takes into account amendments made by Schedule 7, which replaces the term 'child pornography material' with 'child abuse material' in the Criminal Code.

117. This item amends the definition of 'child abuse material' in the Criminal Code in order to clearly capture child-like sex dolls and similar objects. These objects are used by people to simulate sexual intercourse with children and should be treated in the same manner by Commonwealth law as other types of child abuse material.

118. This item inserts an additional limb to the definition of child abuse material and is not intended to affect the existing aspects of the definition or limit in any way the types of material that can be captured by the existing limbs. New paragraph (g) is intended to be consistent with the language in the new offence in section 273A.1, as it is intended to capture the same dolls or other objects.

119. The new limb of the definition of child abuse material in section 473.1, in particular, targets the possession of three-dimensional material such as human-like dolls that resemble children and have imitation orifices that are intended to be used for the purpose of simulating sexual intercourse. The paragraph is not limited to complete dolls and is intended to capture parts of dolls as well as similar objects that are developed using emerging technology such as child-like sex robots.

120. Further, the new limb of the definition requires the doll or other object to resemble a person who is, or appears to be, under 18 years of age, or a part of the body of such a person. Child-like sex dolls vary in facial appearance, proportions, height, size and functionality. A doll or other object may be captured by this paragraph despite possessing one or more adult features, for example developed breasts or make-up. Consideration should be given to the characteristics of the doll in its entirety, including its functionality, proportionality, physical features and anything else that provides context to the purpose and age depiction of the doll.

121. Additionally, the new limb of the definition provides that a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse. This is an objective test focused on the function or capability of the doll or other object. Sexual intercourse is defined in section 272.4 of the Criminal Code. Simulating sexual intercourse involves a person engaging in the range of conduct outlined in section 272.4 in relation to the doll or other object in place of another person.

122. The definition of 'child abuse material', as amended, will apply to Division 273, Division 471 and Division 474 of the Criminal Code.

Application of the amendment to Division 273

123. Subdivision B of Division 273 contains offences committed overseas involving child abuse material. Section 273.6 criminalises possessing, controlling, producing, distributing or obtaining child abuse material outside Australia. Amending the definition of child abuse material in order to capture child-like sex dolls and other similar objects has the effect of criminalising the possession, control, production, distribution or obtaining of such objects outside of Australia, where that conduct is engaged in by an Australian citizen, resident of Australia, body corporate under Australian law, or a body corporate that carries on its activities principally in Australia.

Many countries do not have effective laws against child abuse material, including for example child-like sex dolls, or are unwilling or unable to enforce them. This means for example, an Australian could travel overseas and possess a child-like sex doll, even though the very same behaviour, if committed in Australia, would be a serious criminal offence under the new section 273A.5.

Application of the amendment to Division 471 and Division 474

124. Subdivision B of Division 471 and Subdivision D of Division 474 provide offences relating to dealings with child abuse material in connection with a carriage service, postage service or similar service. The amendments to the definition of child abuse material in item 6 will ensure that, in addition to the other categories of child abuse material listed in the definition in section 473.1, these offence apply, where relevant, to child-like sex dolls and similar objects.

125. Under section 471.19 a person commits an offence if the person causes an article to be carried by a postal or similar service and the article is or contains child abuse material. It is also an offence to request another person cause such an article to be carried by a postal service. As a result of the Bill, these offences will apply to child-like sex dolls as well as more traditional types of child abuse material, for example, when a person orders a child-like sex doll from a company located overseas and that item is delivered via the post.

Customs Act 1901

Item 7 - At the end of subsection 233BAB(4)

126. This item takes into account amendments made by Schedule 7, which replaces the term 'child pornography material' with 'child abuse material' in the Customs Act. Schedule 7 also amends section 233BAB of the Customs Act.

127. This item amends subsection 233BAB(4) of the Customs Act in order to clearly capture child-like sex dolls and similar objects as items of child abuse for the purpose of subsection 233BAB(1). This will allow such objects to be constituted as tier 2 goods under the Customs Regulations 2015. The prohibited import and export of tier 2 goods is an offence under subsection 233BAB(5) and subsection 233BAB(6) of the Customs Act.

128. This amendment will achieve consistency with the material captured by the definition of child abuse material in the Criminal Code, as amended by item 6 and ensure child-like sex dolls are treated consistently with other types of child abuse material at the border.

129. Item 7 inserts an additional paragraph to the list of items to be taken to be child abuse material and is not intended to affect the existing aspects of subsection 233BAB(4) or limit in any way the types of items that can be captured by the existing limbs. Paragraph (g), in particular, targets the possession of three-dimensional material such as human-like dolls that resemble children and have imitation orifices that are intended to be used for the purpose of simulating sexual intercourse. The paragraph is not limited to complete dolls and is intended to capture parts of dolls as well as similar objects that are developed using emerging technology such as child-like sex robots.

130. Further, paragraph (g) requires the doll or other object to resemble a person who is, or appears to be, under 18 years of age, or a part of the body of such a person. Child-like sex dolls vary in facial appearance, proportions, height, size and functionality. A doll or other object may be captured by this paragraph despite possessing one or more adult features, for example developed breasts or make-up. Consideration should be given to the characteristics of the doll in its entirety, including its functionality, proportionality, physical features and anything else that provides context to the purpose and age depiction of the doll.

131. Additionally, paragraph (g) provides that a reasonable person would consider it likely that the doll or other object is intended to be used by a person to simulate sexual intercourse. This is an objective test focused on the function or capability of the doll or other object. This use of the term 'sexual intercourse' in the Customs Act has the same meaning as it does in section 272.4 of the Criminal Code.

Surveillance Devices Act 2004

Item 8 - Subparagraphs 30(1)(a)(viii) and (1A)(a)(iv)

132. Under the Surveillance Devices Act 2004 emergency authorisations for the use of a surveillance device may be provided if there a risk of a loss of evidence. Item 8 updates the offences for which a law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for the use of a surveillance device to include an offence under Division 273A of the Criminal Code. This amendment recognises that the possession of child-like sex dolls or other objects is an offence that merits the emergency authorisation of the use of a surveillance device if there is a risk that evidence may be lost.

Telecommunications (Interception and Access) Act 1979

Item 9 - Paragraph 5D(3B)(a)

133. Under the Telecommunications (Interception and Access) Act 1979 (TIA Act), telecommunications interception warrants may only be issued for the purpose of an investigation into a 'serious offence', as defined in section 5D of that Act. This item amends paragraph 5D(3B)(a) to provide that an offence against the new Division 273A is a serious offence for the purposes of the TIA Act. This amendment achieves consistency with other relevant child abuse material offences that are included in subsection 5D(3B) of the TIA Act.

Schedule 3 - Possessing or controlling child abuse material obtained or accessed using a carriage service

Criminal Code Act 1995

Item 1- After section 474.22 of the Criminal Code

Section 464.22A - Possessing or controlling child abuse material obtained or accessed using a carriage service

134. Item 1 of Schedule 3 inserts a new offence at section 474.22A of Division 474, Subdivision D of the Criminal Code. This item creates an offence for the possession or control of 'child abuse material' in the form of data held in a computer or on a data storage device, where the person used a carriage service to obtain or access the material. This new offence will criminalise possession or control of child abuse material where that possession does not also need to be accompanied by an intention to deal with the material through a carriage service or postal service, as is required by the offence set out at section 474.23 of the Criminal Code. The amendment will include the control of child abuse material in the form of data, including material stored in remote data storage that may be physically located in Australia or overseas.

135. To make out the offence, the prosecution must prove that:

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the person possesses or controls material

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the person intends to possess or control the material

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the material is in the form of data held in, or can be accessed using, a computer, or contained in a data storage device

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the person is reckless as to whether the material is in the form of data that is held in, or can be accessed using, a computer, or is contained in a data storage device

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the material is child abuse material, and

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the person is reckless as to whether the material is child abuse material.

136. The reference to 'possession' of material in paragraph 474.22A(1)(a) has the meaning given by section 473.2 of the Criminal Code. To determine whether the defendant had possession of the material, the trier of fact must prove:

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the person had possession of the material, and

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the person intended to possess the material.

137. There may be circumstances in which a person has possession of a computer or data storage device that contains offending material, but the person does not have possession of that material. For example, material may be stored on a user profile on a computer but that profile is not that of the computer's owner and the computer's owner does not have access to that profile. In this circumstance, it would not necessarily follow that possession of the storage medium equates to 'possession' of the material.

138. Alternatively, a person may possess material saved to a user profile on a computer, where the computer is not in their possession. The possession of material is not necessarily equivalent with the possession of the computer or data storage device that holds or contains it.

139. The reference to 'control' of material in paragraph 474.22A(1)(a) has the meaning given by section 473.2 of the Criminal Code. This includes control of data that is located on a remote data storage device, which may be in the physical possession of another person. To determine whether the defendant had control of the material, the trier of fact must prove:

•

the person had control of the material, and

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the person intended to have control of the material.

140. The Criminal Code does not define 'computer'. References to 'computer' are intended to be broad enough to enable the offence to achieve and maintain technological neutrality, and to take into account technological advancements that could occur in the future.

141. The Criminal Code defines 'data held in a computer' as:

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data held in any removable storage device that is at the time being held in a computer, or

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data held in a data storage device on a computer network of which the computer forms a part.

142. References to 'data held in a computer' are intended to be broad enough to enable the offence to achieve and maintain technological neutrality, and to take into account technological advancements that could occur in the future.

143. The Criminal Code defines a 'data storage device' as a thing (e.g. a disk or file server) containing, or designed to contain, data for use by a computer. References to data held in a data storage device include where the storage device is physically located in or out of Australia.

144. Paragraph 474.22A(1)(c) will require that the child abuse material was obtained or accessed by the defendant by the use of a carriage service. The use of a carriage service provides the relevant connection to the legislative power under section 51(v) of the Australian Constitution. Consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, absolute liability as outlined in section 6.2 of the Criminal Code will apply to paragraph 474.22A(1)(c) as it is a particular physical element, being the jurisdictional element of the offence. The jurisdictional element of the offence is not central to the conduct or the culpability for the offence.

145. Subsection 474.22A(3) inserts a presumption that where a defendant possesses or controls child abuse material in the form of data held in a computer or contained in a data storage device, that material was obtained or accessed by the defendant by the use of a carriage service. Therefore, if the prosecution proves beyond reasonable doubt that the person had possession or control of child abuse material in the form of data held in a computer or contained in a data storage device, it is presumed that the person engaged in that conduct using a carriage service. This presumption stands unless the defendant proves the material was not obtained by the use of a carriage service.

146. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often, evidence that a carriage service was used to engage in the relevant criminal conduct is highly technical. Such evidence can be circumstantial, including for example that the defendant's computer had chat logs saved on the hard drive, the computer was connected to the internet, and records show the computer accessed particular websites that suggest an association with the material saved on the hard drive. A presumption in this instance is appropriate, given it is not an element that goes to the substance of the offence or to the person's criminal culpability. Rather, it is a jurisdictional element; that is, an element marking a boundary between matters that fall within the legislative power of the Commonwealth, and those that do not.

147. The onus will be on the defendant to prove, on the balance of probabilities, that they used a method other than a carriage service to obtain or access the material. The prosecution does not need to prove that the person accessed or obtained the material using a carriage service unless the defendant discharges the burden to prove otherwise.

148. The defendant bears a legal burden of proof to rebut the presumption. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant must discharge this burden on the balance of probabilities. The defendant can rebut the presumption by producing evidence demonstrating on the balance of probabilities they did not use a carriage service to obtain or access the material. For example, the defendant may produce evidence proving they obtained or accessed the material from a portable data storage device another person physically gave them. Section 13.4 of the Criminal Code outlines that a legal burden of proof applies where a legal burden has been specified expressly in the law, requires the defendant to prove the matter, or creates a presumption that the matter exists unless the contrary is proved.

149. The offence at section 474.22A will not be limited to the possession or control of child abuse material by persons aged 18 years and over. Accordingly, minors who possess or control child abuse material may be subject to prosecution for this offence.

150. Safeguards prevent the unnecessary prosecution of minors. This includes a provision at section 474.24C of the Criminal Code, which will require the Attorney-General to give their consent before proceedings for the offence being inserted at 474.22A can be commenced against a minor. This requirement applies to all Commonwealth offences for child abuse material and reflects a long-standing government policy to avoid over-criminalising minors' conduct.

151. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to the offence at section 474.22A. It is applied under the operation of section 475.2, which states that section 15.1 applies to each offence in Part 10.6 of the Criminal Code. Category A geographical jurisdiction means that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A geographical jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if that citizen's conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

152. This offence is not intended to exclude or limit the operation of any other law of the Commonwealth or any other law of a State or Territory, as per the operation of section 475.1 of the Criminal Code, including State and Territory child abuse material possession offences, which will continue to operate alongside the offence at section 474.22A. This approach is consistent with the approach taken in other areas of criminal law, such as terrorism, fraud, computer crime, money laundering, drug offences and sexual servitude. It is intended that the offence will continue to be investigated in accordance with the established division of responsibility between Commonwealth, State and Territory law enforcement agencies.

153. The presumption in section 473.5 will apply to this offence, so that a carriage service provider, internet service provider, or internet content host is not taken to have used a carriage service in the commission of this offence if they are acting solely in their capacity as a carriage service provider, internet service provider, or internet content host. This offence is not intended to criminalise a cloud or other remote storage provider for possessing child abuse material where another person has control of that material. For example, where a person has saved child abuse material on a remote storage application but the physical data is in a server in the possession of a cloud storage provider, that provider would not be held responsible for using a carriage service in the commission of the offence. The person who saved the child abuse material on the remote storage application will be liable for the offence, as they had control of the material. Relevantly, section 474.25 of the Criminal Code places obligations on internet content hosts and internet service providers to report child abuse material if they become aware their service can be used to access that material. The presumption is not designed to limit or inhibit current or future carriage service provider, internet service provider, or internet content host responsibilities and liabilities relating to the possession of, and access to, online child abuse material.

Item 2 - Subsections 474.24(1), (3) and (4) of the Criminal Code

154. Item 2 of Schedule 3 applies existing defences in section 474.24 of the Criminal Code to the new offence for possessing or controlling child abuse material obtained or accessed using a carriage service in section 474.22A, as described by Item 1 of Schedule 3 of the Bill. Defences at section 474.24 will apply to section 474.22A, including if the conduct is:

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necessary for enforcing or monitoring compliance with an Australian law

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for the administration of justice;

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for a scientific, medical or educational purpose that has been approved by the Minister, or

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for the purpose of assisting the eSafety Commissioner to detect prohibited or potentially prohibited content.

155. The defences at section 474.24 of the Criminal Code apply to existing child abuse material offences that are comparable to the new offence proposed at Item 1 of Schedule 3 of the Bill.

Item 3 - After subparagraph 474.24A(1)(a)(iii) of the Criminal Code

156. Item 3 of Schedule 3 amends section 474.24A of the Criminal Code to include the new offence at section 474.22A for possessing or controlling child abuse material obtained or accessed using a carriage service as an underlying offence to which the aggravated offence contained at section 474.24A can apply. The aggravated offence applies where conduct is committed on three or more occasions involving two or more people. The aggravated offence at section 474.24A applies a maximum penalty of 25 years' imprisonment.

Item 4 - Subsections 474.24A(2), (3), (5) and (7) of the Criminal Code

157. Item 4 of Schedule 3 clarifies that the aggravated offences created in item 3 of Schedule 3 are to include the same considerations as similar existing aggravated offences for dealings in child abuse material in the Criminal Code.

158. Subsection 474.24A(2) lists a number of aggravated offences in which there are no additional fault elements, aside from the fault elements contained in the offence. Item 4 of the Schedule 3 adds the new offence for possessing or controlling child abuse material obtained or accessed using a carriage service, at new section 474.22A, to this list.

159. A person does not commit an offence against the aggravated offence at section 474.24A if the person has a defence to an offence in the list at subsection 474.24A(3). Item 4 of Schedule 3 adds the new offence for possessing or controlling child abuse material obtained or accessed using a carriage service, at section 474.22A, to this list.

160. Subsection 474.24A(5) states that a person who has been convicted or acquitted of an aggravated offence may not then be convicted of a list of offences in relation to the conduct that constituted the aggravated offence. Item 4 of Schedule 3 adds the new offence possessing or controlling child abuse material obtained or accessed using a carriage service, at new section 474.22A to this list.

161. Subsection 474.24A(7) states that a person who has been convicted or acquitted of an underlying offence against a list of offences may not then be convicted of an aggravated offence in relation to the conduct that constituted the underlying offence. Item 4 of Schedule 3 adds the new offence for possessing or controlling child abuse material obtained or accessed using a carriage service at new section 474.22A to this list.

Item 5 - Paragraph 474.24B(b) of the Criminal Code

162. Item 5 of Schedule 3 allows for an alternative verdict to be given if the aggravated offence is not proven in relation to the aggravated offences created in item 3 of Schedule 3. If a court finds that an aggravated offence cannot be proven against a person but that one of the underlying offence in new section 474.22A can be proven, the court may find the person not guilty in relation to the aggravated offence, but guilty in relation to the underlying offence. This is consistent with the other aggravated offences created by section 474.24A for dealings in child abuse material.

Schedule 4 - Persistent sexual abuse of a child outside Australia

Criminal Code Act 1995

Item 1 - Subsection 272.11(1) of the Criminal Code

163. Section 272.11 of the Criminal Code criminalises persistent child sexual abuse overseas. This item amends section 272.11(1) so that it is an offence for a person to commit two or more separate occasions of underlying child sex offences overseas, over any period of time. This item reduces the minimum number of separate occasions of underlying offences required to prove the offence, from three occasions to two. The offence carries a maximum penalty of 25 years' imprisonment.

164. The purpose of the offence of persistent child sexual abuse overseas is to enable the prosecution of repeated sexual abuse overseas over a period of time, where the victim faces difficulties distinguishing specific instances of offending. This item seeks to address these difficulties by reducing the minimum number of separate occasions of abuse required to prove the offence.

165. To establish the amended offence, the prosecution would need to prove beyond reasonable doubt that the person committed two or more separate occasions of any underlying offence against the same child under 16, during any period.

166. The underlying offences cover the following conduct:

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engaging in sexual intercourse with a child overseas (subsection 272.8(1)),

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engaging in sexual activity with a child overseas (subsection 272.9(1)),

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causing a child to engage in sexual intercourse overseas in the presence of the defendant (subsection 272.8(2)), and

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causing a child to engage in sexual activity overseas in the presence of the defendant (subsection 272.9(2)).

167. The underlying offences each carry a maximum penalty of 15 or 20 years' imprisonment. The maximum penalty of 25 years imprisonment for the offence of persistent child sexual abuse overseas remains unchanged, despite the reduction in the number of occasions of underlying offences from three occasions to two. This recognises the seriousness of the offence, which criminalises repeated and regular abuse, and requires at least two occasions of child sex offences overseas. The penalty also recognises the devastating and longstanding impact of repeated child sexual abuse and has a strong deterrent effect.

168. Similar amendments are made in items 2, 3 and 4.

Items 2, 3 and 4 - Paragraphs 272.11(7)(a), (b) and (c) of the Criminal Code

169. These items amend paragraphs 272.11(7)(a), (b) and (c) of the Criminal Code which specify the matters the trier of fact must be satisfied about in order to find a person guilty of persistent child sexual abuse overseas. These items are consistent with item 1 which reduces the minimum number of separate occasions of underlying offences required to prove the offence, from three occasions to two.

170. To convict a person for persistent child sexual abuse overseas, item 2 requires the trier of fact to be satisfied beyond reasonable doubt that:

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the person committed two or more separate occasions of underlying offences

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the underlying offences were committed against the same child

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the underlying offences were committed during the same period of time, and

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the underlying offences were of a nature described in the charge.

171. Item 3 requires the trier of fact to also be satisfied beyond reasonable doubt about the material facts of each of the two occasions of underlying offences. However, the trier of fact does not need to be satisfied beyond reasonable doubt about the dates or order of the occasions of underlying offences.

172. For prosecutions where the trier of fact is a jury, and the prosecution relies on more than two occasions of underlying offences, item 4 requires the trier of fact to be satisfied beyond reasonable doubt about the same two occasions. This amendment means the jury must agree on the same two occasions of offending, at a minimum. These amendments are more compatible with the way in which child victims remember repeated and regular sexual abuse. This will enhance the ability to prosecute for repeated and regular child sexual abuse overseas, by reducing the requirements for victims to detail and distinguish specific occasions of abuse.

Item 5 - Application of amendments

173. This item clarifies the application of the amended offence of persistent child sexual abuse overseas under section 272.11.

174. For a prosecution under section 272.11 that covers conduct during a period of time which commences prior to commencement of this item, the prosecution would need to establish at least three occasions of underlying offences during that period. This applies even when the period of time covers underlying offences that occurred after commencement of this item. For a prosecution under section 272.11 that covers conduct during a period of time which commences after commencement of this item, the prosecution would need to establish at least two occasions of underlying offences during that period.

Schedule 5 - Forced marriage

Criminal Code Act 1995

Item 1 - Subsection 270.7A(1) of the Criminal Code

175. Section 270.7A of the Criminal Code contains the definition of forced marriage. Under subsection 270.7A(1), a marriage is forced if the victim entered into the marriage without full and free consent:

•

because of the use of coercion, threat or deception, or

•

because of an incapacity to understand the nature and effect of the marriage ceremony (for reasons such as age and mental capacity).

176. Item 1 repeals existing subsection 270.7A(1) and substitutes a new subsection 270.7A(1), which retains these elements and inserts new subparagraph 270.7A(1)(b) that explicitly captures all marriages involving children under 16. As a result of this item, a marriage is considered to be a forced marriage if either party was under 16 at the time the marriage was entered into.

177. The age of 16 aligns with the marriageable age provisions in Part II of the Marriage Act. Under the Marriage Act, a person is of marriageable age if the person has attained the age of 18 years, or where an Australian court order is in force that permits a person who has attained the age of 16 years but not 18 years to marry a person aged over 18 in exceptional circumstances provided there is there required consent (usually parental).

178. This amendment is intended to ensure that where a victim is a child, there will not be a requirement for the prosecution to show that his or her lack of consent resulted from the use of coercion, threat or deception, or incapacity to understand the nature and effect of the marriage ceremony.

Item 2 - Subsection 270.7A(3) of the Criminal Code

179. This item omits 'Paragraph (1)(a)' from existing subsection 270.7A(3) and substitutes 'Subparagraph (1)(a)(i)'.

180. Existing subsection 270.7A(3) provides that the coercion, threat or deception can be against a victim or any other person, such as a family member.

181. This item is a consequential amendment made necessary by Item 1. Item 1 repeals subsection 270.7A(1) and substitutes a new subsection 270.7A(1) with subparagraphs 1(a) and (b). It is therefore necessary to replace the cross-reference to existing paragraph (1)(a) with new subparagraph (1)(a)(i). This item has no substantive effect.

Item 3 - Subsection 270.7A(4) of the Criminal Code

182. Section 270.7A defines a forced marriage as one that is entered into without full and free consent because of the use of coercion, threat or deception, or an incapacity to understand the nature and effect of the marriage ceremony.

183. Subsection 270.7A(4) provides that, for the purpose of proving an offence under Division 270 or 271 of the Criminal Code, a person under 16 is presumed to be incapable of understanding the nature and effect of a marriage ceremony. The accompanying note provides that a defendant bears a legal burden in relation to proving the contrary in accordance with section 13.4 of the Criminal Code.

184. Item 3 repeals the rebuttable presumption in subsection 270.7A(4), including the note.

185. The intended effect of the introduction of the rebuttable presumption was to make the consent of a child irrelevant. In practice, however, it has equated a child's understanding of what a marriage is with their consent to that marriage. Operational experience to date has shown that the majority of child victims have, on their own evidence, clearly demonstrated that they understood the nature and effect of the marriage ceremony, which is commonly expressed as resulting in an exclusive commitment for life, a sexual relationship, co-habitation and children.

186. The repeal of the rebuttable presumption simplifies the prosecutorial burden by clarifying that a child's consent or apparent acquiescence is irrelevant for the purposes of proving a forced marriage offence.

Item 4 - At the end of section 270.7B of the Criminal Code

187. Existing section 270.7B contains two offences of causing a person to enter a forced marriage, and being a party to a forced marriage. These offences are punishable by up to seven years' imprisonment, or nine years' imprisonment in aggravating circumstances.

188. This item inserts a consent to prosecute provision at the end of section 270.7B. Subsection 270.7B(5) requires that the Attorney-General's consent be sought in order to commence proceedings for an offence against subsection 270.7B(1) or (2) in circumstances where the defendant was under 18 at the time of the offence.

189. While the Attorney-General's consent is required in order to commence proceedings, subsection 270.7B(6) provides that a person may be arrested for, charged with, or remanded in custody or on bail before the necessary consent has been given.

190. This is intended to act as a safeguard for young people who are charged with forced marriage offences, in particular for being party to a forced marriage pursuant to subsection 270.7B(2). This recognises that in some instances, both young parties may have been forced into the marriage.

Item 5 - At the end of section 270.8(1) of the Criminal Code

191. Existing section 270.8(1) sets out the circumstances in which the slavery-like offences in Division 270 may be charged as aggravated offences. The applicable aggravating factors are:

•

the victim is under 18

•

the offender subjects the victim to cruel, inhuman or degrading treatment, and

•

the offender engages in conduct that gives rise to a danger of death or serious harm to the victim or another person; and is reckless as to that danger.

192. Item 5 inserts a note at the end of subsection 270.8(1) to clarify that a forced marriage offence under section 270.7B which involves a party that was under 16 at the time the marriage was entered into will be considered an aggravated offence by virtue of the fact that the victim is under 18.

193. Forced marriage offences involving a child under 16 will automatically attract the aggravated maximum penalty of nine years' imprisonment, reflecting the gravity of the offence and damaging long-term consequences.

194. This item is a consequential amendment to Item 1, which expands the definition of forced marriage in subsection 270.7A(1) to capture marriages that involve a child who was under 16 at the time the marriage was entered into.

Schedule 6 - Restricted defence of marriage for child sex offences

Criminal Code Act 1995

Item 1 - Section 272.17 of the Criminal Code

195. Division 272 of the Criminal Code criminalises sexual offences committed against children under 16 outside Australia.

196. Division 272 also criminalises sexual offences committed against young people (aged between 16 and 18 years) overseas, where the offender is in a position of trust or authority (as defined in section 272.3). While the age of consent under Commonwealth law is 16 years, there are certain relationships where the potential for imbalance of power is so significant that a higher age of consent should apply to sexual contact between persons within those relationships. This rationale is reflected in the existing position of authority offences in sections 272.12 and 272.13 of the Criminal Code, and in comparable offences under State and Territory law.

197. Section 272.17 provides a defence to offences involving engaging in sexual intercourse or other sexual activity with child or young person outside Australia, and procuring or 'grooming' a child for sexual activity outside Australia.

198. Currently, it is a defence to these offences if, at the time the conduct constituting the offence was committed, a valid and genuine marriage existed between the defendant and the child or young person. The defendant bears a legal burden to prove that:

•

the marriage was recognisable as valid under the law of the country:

o

where the marriage was solemnised

o

where the offence was committed, or

o

where the defendant resides, and

•

that the marriage was genuine at the time it was entered into.

199. Item 1 of Schedule 6 repeals section 272.17 of the Criminal Code and substitutes it with a new, narrower defence.

200. The new defence is only applicable to offences relating to engaging in sexual intercourse or sexual activity with young people aged at least 16 years but under 18 years outside Australia where the defendant is in a position of trust or authority (subsections 272.12(1) and 272.13(1) respectively).

201. To establish the defence, the defendant must prove that, at the time of the alleged offence, they were in a valid and genuine marriage with the young person, and that the young person was at least aged 16 at the time that marriage was entered into.

202. Paragraph 272.17(a) retains the requirement that the marriage be valid, or recognised as valid, under the law of the country where the marriage was solemnised, the offence was committed, or the defendant resides or is domiciled.

203. In addition to the requirement that the marriage was genuine, subparagraph 272.17(b)(ii) requires that the young person was at least 16 years old when the marriage was entered into.

204. This is consistent with the legal marriageable age under the Marriage Act. Under the Marriage Act, a person is of marriageable age if the person has attained the age of 18 years, or where an Australian court order is in force that permits a person who has attained the age of 16 years but not 18 years to marry a person aged over 18 years in exceptional circumstances, provided there is the required consent.

205. This is intended to prevent Australians in positions of trust or authority from escaping culpability for sexual offences committed against young people (at least 16 years but under 18 years) overseas, in circumstances where the valid and genuine marriage constituting this defence was solemnised while the victim under 16.

206. The defendant will continue to bear a legal burden in establishing the defence and, accordingly, must establish the elements of the defence on the balance of probabilities (see section 16.4 and 16.5 of the Criminal Code). A legal burden is appropriate because the defence relates to a matter that is peculiarly within the defendant's knowledge and not available to the prosecution.

Item 2 - Saving provision

207. This item is a saving provision that clarifies that the repealed defence in section 272.17 will continue to be available to defendants, after the commencement of Schedule 6, in circumstances where the offences were allegedly committed prior to this Schedule coming into force.

Schedule 7 - Expanding the meaning of child abuse material

208. The Criminal Code and other Commonwealth legislation currently distinguish between 'child abuse material' and 'child pornography material'. However, the term 'child pornography material' is no longer considered appropriate or accepted terminology. Attaching the term 'pornography' to this material is a barrier to conveying the seriousness and gravity of the offences depicted, the inherently abusive nature of the material, and the harm faced by the children. Further, labelling content as 'child pornography material' may inadvertently legitimise that material by associating it with legal forms of (adult) pornography. The inference that 'pornography' is associated with consenting subjects participating in legal behaviour is entirely inappropriate where the behaviour depicted involves the abuse of children.

209. Accordingly, this Schedule repeals references to 'child pornography material' and reconstitutes the current definitions of 'child abuse material' and 'child pornography material' into a single definition of 'child abuse material'.

Part 1 - Amendments

Crimes Act 1914

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

210. This item amends subsection 3(1) to remove the words 'child pornography material has the same meaning as in Part 10.6 of the Criminal Code'. This amendment is consequential to items 29 and 30 which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 2 - Subsection 3(1) (subparagraph (a)(ii) of the definition of Commonwealth child sex offence )

211. This item amends subsection 3(1) to remove references to 'child pornography material' in the definition of 'Commonwealth child sex offence'. This amendment is consequential to items 29 and 30 which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

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

212. This item amends subsection 3(1) to remove references to 'child pornography material' in the definition of 'Commonwealth child sex offence'. This amendment is consequential to items 29 and 30 which repeal the definition of 'child pornography material' in the Criminal Code and add material previously covered by this definition to the definition of 'child abuse material'.

Item 4 - Subsection 3(1) (note to the definition of Commonwealth child sex offence )

213. This item amends subsection 3(1) to remove the note to the definition of Commonwealth child sex offence, which was relevant at the time that the forfeiture provisions in the Crimes Act were introduced but is no longer used in relation to offences that were committed before the commencement of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010.

Item 5 - Paragraph 15GE(2)(w)

214. This item amends paragraph 15GE(2)(w) to remove references to 'child pornography material' and substitutes it with 'child abuse material' to ensure that the paragraph is consistent with the terms used and defined in the Criminal Code. It is intended that this amended paragraph will operate to ensure that all offences relating to child abuse material in the Criminal Code that are punishable for a maximum penalty of imprisonment for 3 years or more are classified as 'serious Commonwealth offences' for the purposes of the Crimes Act. Offences in the Criminal Code that were captured by this paragraph prior to this amendment will continue to be captured by the amended paragraph.

Item 6 - Paragraph 15GE(3)(b) and (d)

215. This item amends paragraphs 15GE(3)(b) and (d) to remove references to 'child pornography material'. This amendment is consequential to item 23, which amends the heading of Subdivision B of Division 471 of the Criminal Code to remove reference to 'child pornography material'. It is also consequential to item 32, which amends the heading of Subdivision D of Division 474 of the Criminal Code to remove reference to 'child pornography material'.

Item 7 - Paragraph 15Y(1)(cac)

216. This item amends paragraph 15Y(1)(cac) to remove references to 'child pornography material'. This amendment is consequential to item 13 which, amends the heading of Division 273 of the Criminal Code to remove reference to 'child pornography material'.

Item 8 - Part IE (heading)

217. This item amends the heading of Part IE to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 9 - Paragraph 23ZA(b)

218. This item amends paragraph 23ZA(b) to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 10 - Paragraph 23ZA(c)

219. This item amends paragraph 23ZA(c) to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of

'child pornography material' to the definition of 'child abuse material'.

Item 11 - Paragraph 23ZC(1)(c)(ii)

220. This item amends paragraph 23ZC(1)(c)(ii) to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Criminal Code Act 1995

Item 12 - Paragraph 5(2)(l)

221. This item amends paragraph 5(2)(l) to remove reference to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 13 - Division 273 of the Criminal Code (heading)

222. This item amends the heading of Division 273 to remove reference to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 14 - Subsection 273.1(1) of the Criminal Code (note)

223. This item amends the note under subsection 273.1(1) to remove reference to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 15 - Subdivision B of Division 273 of the Criminal Code (heading)

224. This item amends the heading of Subdivision B of Division 273 to remove reference to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 16 - Section 273.5 of the Criminal Code

225. This item repeals the offence relating to 'child pornography material' under section 273.5. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

226. Behaviour previously captured by the repealed offence under section 273.5 will now be captured by the offence in section 273.6.

Item 17 - Paragraph 273.7(1)(a) of the Criminal Code

227. This item amends paragraph 273.7(1)(a) that refers to the repealed offence detailed in item 16. This item is consequential to item 16, which repeals the offences relating to 'child pornography material' under section 273.5 and defences related to these offences in section 273.9.

228. Behaviour previously captured by the repealed offence under section 273.5 will now be captured by the offence in section 273.6.

Item 18 - Subsections 273.7(2), (3), (5) and (7) of the Criminal Code

229. This item repeals subsections that refer to the repealed offence detailed in item 16. This item is consequential to item 16, which repeals offences relating to 'child pornography materia l' under section 273.5.

Item 19 - Section 273.8 of the Criminal Code

230. This item repeals references to the repealed offence detailed in item 16. This item is consequential to item 16, which repeals offences relating to 'child pornography material' under section 273.5.

Item 20 - Subsections 273.9(1), (4) and (5) of the Criminal Code

231. This item repeals references to the repealed offence detailed in item 16. This item is consequential to item 16, which repeals offences relating to 'child pornography material' under section 273.5.

Item 21 - Paragraph 279.1(d) of the Criminal Code

232. This item repeals references to the repealed offence detailed in item 16. This item is consequential to item 16, which repeals offences relating to 'child pornography material' under section 273.5.

Item 22 - Subsection 470.4(1) of the Criminal Code (note)

233. This item amends the note under subsection 470.4(1) to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 23 - Subdivision B of Division 471 of the Criminal Code (heading)

234. This item amends the heading of Subdivision B of Division 471 to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 24 - Sections 471.16, 471.17 and 471.18 of the Criminal Code

235. This item repeals offences relating to 'child pornography material' under sections 471.16 and 471.17 and defences related to these offences under section 471.18. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

236. Behaviour previously captured by the repealed offences under section 471.16 and 471.17 will now be captured by the offences in sections 471.19 and 471.20 respectively. The defence relating to this behaviour that was previously provided for in section 471.18 will now be provided for in section 471.21.

Items 25 to 27 - Section 471.22 of the Criminal Code

237. These items repeal subparagraphs that refer to the repealed offences detailed in item 24. These items are consequential to item 24, which repeals offences relating to 'child pornography material' under sections 471.16 and 471.17 and defences related to these offences in section 471.18.

Item 28 - Paragraph 471.23(b) of the Criminal Code

238. This item repeals references to the repealed offences detailed in item 24. These items are consequential to item 24, which repeals offences relating to 'child pornography material' under sections 471.16 and 471.17 and defences related to these offences in section 471.18.

Item 29 - Section 473.1 of the Criminal Code (definition of child abuse material )

239. This item expands the definition of 'child abuse material' to include the material previously covered by the definition of 'child pornography material' (this definition is repealed in item 30). Expanding the definition of 'child abuse material' to include all the material covered by 'child pornography material' will ensure a single definition captures the sexual abuse and the depictions or representation of the sexual abuse of children. This item makes changes to terminology but does not have any net effect on the scope of material or conduct criminalised under the Criminal Code.

Item 30 - Section 473.1 of the Criminal Code (definition of child pornography material )

240. This item repeals the definition of 'child pornography material'. The material covered by the definition of 'child pornography material' will be amalgamated into the definition of 'child abuse material' in item 29. Amalgamating the two definitions will remove the current distinction in the Criminal Code between 'child abuse material' and 'child pornography material'.

241. This amendment updates Commonwealth legislation to reflect changes to international language norms and the seriousness of harm associated with material that depicts child sexual abuse. The use of the word 'pornography' does not convey the gravity of the criminal activity that is depicted in materials comprising child sexual abuse. Nor does the word convey the harm inflicted on the children involved. The increase in the availability of legal adult pornography online has also resulted in the reduction of the social stigma that was previously associated with the term 'pornography'. 'Pornography' is often associated with consenting subjects, which is inappropriate given that this behaviour involves the abuse of children who cannot provide consent.

Item 31 - Section 473.1 of the Criminal Code (note to the definition of private sexual matter )

242. This item amends the note under section 473.1 to remove references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

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

243. This item amends the heading of Subdivision D to remove references to 'child pornography materia l'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

Item 33 - Sections 474.19, 474.20 and 474.21 of the Criminal Code

244. This item repeals sections 474.19, 474.20 and 474.21 in the Criminal Code. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'. These sections will be repealed to ensure that all references to 'child pornography material' in the Criminal Code are removed.

245. Behaviour previously captured by the repealed offences under sections 474.19 and 474.20 will now be captured by the offences for 'child abuse material' in sections 474.22 and 474.23 respectively. The defences relating to this behaviour that were previously provided for in section 474.21 will now be provided for in section 474.24.

Item 34 - Subparagraphs 474.24A(1)(a)(i) and (ii) of the Criminal Code

246. This item repeals subparagraphs 474.24A(1)(a)(i) and (ii) to remove the subparagraphs that reference sections 474.19 and 474.20 that reference 'child pornography material'. This amendment is consequential to item 33 which repeals sections 474.19 and 474.20 of the Criminal Code.

Item 35 - Subsections 474.24A(2), (3), (5) and (7) of the Criminal Code

247. This item omits references to '474.19' and '474.20' in subsections 474.24A(2), (3), (5) and (7) of the Criminal Code. This amendment is consequential to item 33, which repeals sections 474.19 and 474.20 of the Criminal Code.

Item 36 - Paragraph 474.24B(b) of the Criminal Code

248. This item omits references to '474.19' and '474.2 0' in paragraph 474.24B(b) of the Criminal Code. This amendment is consequential to item 33, which repeals sections 474.19 and 474.20 of the Criminal Code.

Item 37 - Paragraph 474.25(b) of the Criminal Code

249. This item repeals paragraph 474.25(b) of the Criminal Code and substitutes it with a paragraph without references to 'child pornography material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in section 473.1 of the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material' in section 473.1 of the Criminal Code.

Customs Act 1901

Item 38 - Paragraph 233BAB(1)(h)

250. This item amends paragraph 233BAB(1)(h) to remove the reference to 'child pornography'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'. While the Customs Act does not rely on the definitions in the Criminal Cod e, this amendment ensures consistency across Commonwealth legislation to references of this type of material.

251. Given the amendment of subsection 233BAB(4) of the Customs Act by item 40, this amendment will ensure that the amended paragraph 233BAB(1)(h) will continue to capture the same goods that were previously captured under the definition of 'child pornography'.

Item 39 - Subsection 233BAB(3)

252. This item repeals subsection 233BAB(3) which defines 'child pornography'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

253. The repeal of subsection 233BAB(3) will require consequential amendments to be made to the Customs Regulations 2015 to remove obsolete reference to 'child pornography'.

Item 40 - Subsection 233BAB(4)

254. This item amends subsection 233BAB(4) to add those materials that were covered by the definition of 'child pornography' to the definition of 'child abuse material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'.

255. This amendment will ensure that the amended paragraph 233BAB(1)(h) will continue to capture the same goods that were previously captured under the definition of 'child pornography' which is repealed by item 30 above.

256. The change in definition will not impact ongoing prosecutions instituted before the commencement of the Bill. Further explanation of this issue is set out in item 48 below.

Item 41 - Subsection 233BAB(4A)

257. This item is consequential to item 39, which repeals subsection 233BAB(3) and removes a redundant reference to subsection (3).

Telecommunications (Interception and Access) Act 1979

Item 42 - Subsection 5D(3B) (heading)

258. This item amends the heading of Subsection 5D(3B) to remove references to 'child pornography' and substitutes it with 'child abuse material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'. While the TIA Act does not currently rely on the definitions in the Criminal Code, this amendment ensures consistency across Commonwealth legislation with references to this type of material.

Item 43 - Subparagraph 5D(3B)(b)(i)

259. This item amends paragraphs 5D(3B)(b)(i) to remove references to 'child pornography' and substitute it with 'child abuse material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'. This amendment will ensure consistency across Commonwealth legislation to references of this type of material

Item 44 - Subparagraph 5D(3B)(b)(ii)

260. This item amends paragraphs 5D(3B)(b)(ii) to remove references to 'child pornography' and substitute it with 'such material'. This amendment is consequential to items 29 and 30, which repeal the definition of 'child pornography material' in the Criminal Code and add material previously captured in the definition of 'child pornography material' to the definition of 'child abuse material'. This amendment will ensure consistency across Commonwealth legislation to references of this type of material.

Part 2 - Application and transitional provisions

Item 45 - Controlled operations

261. This item inserts an application provision for amendments made under this Bill to paragraph 15GE(2)(w) of the Crimes Act, ensuring that the Bill only affects controlled operations authorised on or after the commencement date. This amendment is consequential to item 5 in Part 1 of Schedule 7, which removes references to 'child pornography material' in paragraph 15GE(2)(w) ensuring that the paragraph is consistent with the terms used and defined in the Criminal Code.

Item 46 - Serious Offences - Telecommunications (Interception and Access) Act 1979

262. This item inserts an application provision for amendments made under this Bill to subsection 5D(3B) of the Telecommunications (Interception and Access) Act 1979 ensuring that the amendments effect offences committed on or after the commencement date. This amendment is consequential to items 43 and 44, which remove references to 'child pornography' in paragraph 5D(3B)(b) ensuring that the paragraph is consistent with the terms used and defined in the Criminal Code.

Item 47 - Aggravated offences involving conduct on 3 or more occasions and 2 or more people

263. Item 47 is a table that sets out the transitional effects of amalgamating the definitions of 'child abuse material' and 'child pornography material' in the aggravated offences involving conduct on 3 or more occasions and 2 or more people (sections 273.7, 471.22 and 474.24A) and the alternative verdict provisions (sections 273.8, 471.23 and 474.24B).

264. This item ensures that conduct which would have constituted an offence before the commencement of this Bill can still be considered for the aggravated offences relating to child abuse material.

Item 48 - Section 7 of the Acts Interpretation Act 1901 not limited

265. This Schedule does not limit section 7 of the Acts Interpretation Act 1901, which is concerned with the effect of repeal, or amendment, of an Act as it applies to the definitional and consequential changes.

266. This item will clarify that, despite the repeal of the reference to 'child pornography material' in Schedule 7, a person can still be criminally responsible for an offence committed against the repealed offences where that conduct occurred before the commencement of the Bill.

267. This item also ensures that definitional changes do not affect prosecutions commenced before the commencement of the Bill. For example, the repeal of the existing definition of child pornography in the Customs Act and its reconstitution in a single definition will not affect the ongoing conduct of prosecutions in relation to the importation of child pornography instituted before the commencement of the Bill.