Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (42 of 2010)

Schedule 1   Amendments relating to sexual offences against children

Part 1   Amendments relating to child sex offences outside Australia

Criminal Code Act 1995

4   After Division 271 of the Criminal Code

Insert:

Division 272 - Child sex offences outside Australia

Subdivision A - Preliminary

272.1 Definitions

In this Division:

cause a person to engage in sexual intercourse or other sexual activity has the meaning given by section 272.2.

offence , in the case of a reference to an offence against this Division or against a particular provision of it, has a meaning affected by section 272.5.

position of trust or authority has the meaning given by subsection 272.3(1).

sexual intercourse has the meaning given by section 272.4.

272.2 When conduct causes a person to engage in sexual intercourse or other sexual activity

For the purposes of this Division, a person’s conduct causes another person to engage in sexual intercourse or other sexual activity if it substantially contributes to the other person engaging in sexual intercourse or other sexual activity.

272.3 Meaning of position of trust or authority

(1) For the purposes of this Code, a person is in a position of trust or authority in relation to another person if:

(a) the person is the other person’s parent, step-parent, or grandparent; or

(b) the person is the other person’s foster parent, guardian or carer; or

(c) the person is a teacher engaged in the education of the other person; or

(d) the person is a religious official or spiritual leader (however described) providing pastoral care or religious instruction to the other person; or

(e) the person is the other person’s sports coach; or

(f) the person is a medical practitioner, nurse, psychologist, other health professional (however described), counsellor or social worker providing professional services to the other person; or

(g) the person is a member of a police force or police service, or a person employed or providing services in a correctional institution (however described), performing duties in relation to the other person; or

(h) the person:

(i) is an employer of the other person; or

(ii) has the authority to determine significant aspects of the other person’s terms and conditions of employment; or

(iii) has the authority to terminate the other person’s employment (whether the other person is being paid in respect of that employment or is working in a voluntary capacity).

(2) Without limiting who is a parent, step-parent or grandparent of a person for the purposes of this section:

(a) a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975; and

(b) a de facto partner of a person’s parent is the step-parent of the person if the de facto partner would be the person’s step-parent except that he or she is not legally married to the person’s parent; and

(c) a person (the first person ) is the grandparent of another person if the first person is a parent or step-parent of a parent or step-parent of the other person.

(3) In this section:

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

272.4 Meaning of sexual intercourse

(1) In this Code, sexual intercourse means:

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

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

(c) fellatio; or

(d) cunnilingus; or

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

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

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

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

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

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

(b) a surgically constructed vagina.

272.5 Meaning of offence against this Division and extension of criminal responsibility

(1) A reference in this Division (except section 272.19, which deals with encouraging an offence against this Division) to an offence against this Division, or against a particular provision of it, includes:

(a) a reference to:

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

(ii) an offence against section 11.1 (attempt), 11.5 (conspiracy) or 272.19 of this Code;

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

(b) a reference to an offence against this Division, or against that provision of it, because of section 11.2 (complicity and common purpose), 11.2A (joint commission) or 11.3 (commission by proxy).

(2) A reference in section 272.19 (encouraging offence against this Division) to an offence against this Division or against a particular provision of it does not include a reference to such an offence because of section 11.2 (complicity and common purpose) or 11.2A (joint commission).

(3) Section 11.1 (attempt) does not apply to an offence against:

(a) section 272.14 (procuring child to engage in sexual activity outside Australia); or

(b) section 272.15 (“grooming” child to engage in sexual activity outside Australia); or

(c) section 272.20 (preparing for or planning offence against this Division).

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

(5) Section 11.5 (conspiracy) does not apply to an offence against section 272.19 (encouraging offence against this Division).

272.6 Who can be prosecuted for an offence committed outside Australia

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

(a) an Australian citizen; or

(b) a resident of Australia; or

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

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

272.7 Saving of other laws

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

Subdivision B - Sexual offences against children outside Australia

272.8 Sexual intercourse with child outside Australia

Engaging in sexual intercourse with child

(1) A person commits an offence if:

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

(b) the child is under 16; and

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

Penalty: Imprisonment for 20 years.

Causing child to engage in sexual intercourse in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child ); and

(b) that conduct causes the child to engage in sexual intercourse in the presence of the person; and

(c) the child is under 16 when the sexual intercourse is engaged in; and

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

Penalty: Imprisonment for 20 years.

(3) The fault element for paragraph (2)(b) is intention.

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

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

272.9 Sexual activity (other than sexual intercourse) with child outside Australia

Engaging in sexual activity with child

(1) A person commits an offence if:

(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child ); and

(b) the child is under 16; and

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

Penalty: Imprisonment for 15 years.

Causing child to engage in sexual activity in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child ); and

(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and

(c) the child is under 16 when the sexual activity is engaged in; and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 15 years.

(3) The fault element for paragraph (2)(b) is intention.

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

Note: For absolute liability, see section 6.2.

Defence - child present but defendant does not intend to derive gratification

(5) It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the child being in the presence of the defendant while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.

Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Note 2: For a defence based on belief about age, see section 272.16.

272.10 Aggravated offence - child with mental impairment or under care, supervision or authority of defendant

(1) A person commits an offence against this section (the aggravated offence ) if:

(a) the person commits an offence (the underlying offence ) against one of the following provisions in relation to another person (the child ):

(i) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

(ii) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

(iii) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

(iv) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia); and

(b) either or both of the following apply at the time the person commits the underlying offence:

(i) the child has a mental impairment;

(ii) the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(4) Absolute liability applies to subparagraph (1)(b)(i).

Note: For absolute liability, see section 6.2.

(5) Strict liability applies to subparagraph (1)(b)(ii).

Note: For strict liability, see section 6.1.

Defence - belief that child did not have mental impairment

(6) Subparagraph (1)(b)(i) does not apply if the defendant proves that, at the time he or she committed the underlying offence, he or she believed that the child did not have a mental impairment.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

(7) In determining whether the defendant had the belief mentioned in subsection (6), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.

272.11 Persistent sexual abuse of child outside Australia

(1) A person commits an offence against this section if the person commits an offence (the underlying offence ) against one or more of the following provisions in relation to the same person (the child ) on 3 or more separate occasions during any period:

(a) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

(b) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

(c) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

(d) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia).

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements described in subsection (1) other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence for the purposes of subsection (1) if the person has a defence to the underlying offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the underlying offence, or the conduct constituting the underlying offence, is the same on each occasion.

Certain matters need not be proved

(5) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the occasions on which the conduct constituting the offence against this section occurred.

Content of charge

(6) A charge of an offence against this section:

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the person during that period.

Trier of fact to be satisfied of certain matters

(7) In order for the person to be found guilty of an offence against this section:

(a) the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions during the period concerned on which the person engaged in conduct constituting an offence against subsection 272.8(1) or (2) or 272.9(1) or (2), of a nature described in the charge, in relation to the child; and

(b) the trier of fact must be so satisfied about the material facts of the 3 such occasions, although the trier of fact need not be so satisfied about the dates or the order of those occasions; and

(c) if the trier of fact is a jury and more than 3 such occasions are relied on as evidence of the commission of an offence against this section - all the members of the jury must be so satisfied about the same 3 incidents.

(8) In proceedings for an offence against this section, the judge must warn the jury (if any) of the requirements of subsection (7).

Double jeopardy etc.

(9) A person who has been convicted or acquitted of an offence against this section may not be convicted of another offence against section 272.8, 272.9 or 272.10 that is alleged to have been committed in relation to the child in the period during which the person was alleged to have committed the offence against this section.

(10) However, subsection (9) does not prevent an alternative verdict under section 272.28.

(11) A person who has been convicted or acquitted of an offence against section 272.8, 272.9 or 272.10 in relation to a person (the child ) may not be convicted of an offence against this section in relation to the child if any of the occasions relied on as evidence of the commission of the offence against this section includes the conduct that constituted the offence of which the person was convicted or acquitted.

272.12 Sexual intercourse with young person outside Australia - defendant in position of trust or authority

Engaging in sexual intercourse with young person

(1) A person commits an offence if:

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

(b) the young person is at least 16 but under 18; and

(c) the person is in a position of trust or authority in relation to the young person; and

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

Penalty: Imprisonment for 10 years.

Causing young person to engage in sexual intercourse in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the young person ); and

(b) that conduct causes the young person to engage in sexual intercourse in the presence of the person; and

(c) the young person is at least 16 but under 18 when the sexual intercourse is engaged in; and

(d) the person is in a position of trust or authority in relation to the young person; and

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

Penalty: Imprisonment for 10 years.

(3) The fault element for paragraph (2)(b) is intention.

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

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

(5) Strict liability applies to paragraphs (1)(c) and (2)(d).

Note: For strict liability, see section 6.1.

272.13 Sexual activity (other than sexual intercourse) with young person outside Australia - defendant in position of trust or authority

Engaging in sexual activity with young person

(1) A person commits an offence if:

(a) the person engages in sexual activity (other than sexual intercourse) with another person (the young person ); and

(b) the young person is at least 16 but under 18; and

(c) the person is in a position of trust or authority in relation to the young person; and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 7 years.

Causing young person to engage in sexual activity in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the young person ); and

(b) that conduct causes the young person to engage in sexual activity (other than sexual intercourse) in the presence of the person; and

(c) the young person is at least 16 but under 18 when the sexual activity is engaged in; and

(d) the person is in a position of trust or authority in relation to the young person; and

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

Penalty: Imprisonment for 7 years.

(3) The fault element for paragraph (2)(b) is intention.

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

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

(5) Strict liability applies to paragraphs (1)(c) and (2)(d).

Note: For strict liability, see section 6.1.

Defence - young person present but defendant does not intend to derive gratification

(6) It is a defence to a prosecution for an offence against subsection (1) or (2) if:

(a) the conduct constituting the offence consists only of the young person being in the presence of the defendant while sexual activity is engaged in; and

(b) the defendant proves that he or she did not intend to derive gratification from the presence of the young person during that activity.

Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Note 2: For a defence based on belief about age, see section 272.16.

272.14 Procuring child to engage in sexual activity outside Australia

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child ); and

(b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and

(c) the child is someone:

(i) who is under 16; or

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

(d) one or more of the following apply:

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

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

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

Penalty: Imprisonment for 15 years.

(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

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

(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.

272.15 “Grooming” child to engage in sexual activity outside Australia

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child ); and

(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity (whether or not with the person) outside Australia; and

(c) the child is someone:

(i) who is under 16; or

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

(d) one or more of the following apply:

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

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

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

Penalty: Imprisonment for 12 years.

(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).

Note 1: For absolute liability, see section 6.2.

Note 2: For a defence based on belief about age, see section 272.16.

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

(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.

272.16 Defence based on belief about age

Offences involving sexual intercourse or other sexual activity with a child - belief that child at least 16

(1) It is a defence to a prosecution for an offence against section 272.8 or 272.9 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the child was at least 16.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Offences involving sexual intercourse or other sexual activity with young person - belief that young person at least 18

(2) It is a defence to a prosecution for an offence against section 272.12 or 272.13 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the young person was at least 18.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Offences involving procuring or “grooming” child for sexual activity - belief that child at least 16

(3) It is a defence to a prosecution for an offence against section 272.14 or 272.15 if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the child was at least 16.

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Trier of fact may take into account whether belief reasonable

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

272.17 Defence based on valid and genuine marriage

Offences involving engaging in sexual intercourse or other sexual activity with child or young person

(1) It is a defence to a prosecution for an offence against subsection 272.8(1), 272.9(1), 272.12(1) or 272.13(1) if the defendant proves that:

(a) at the time of the sexual intercourse or sexual activity, there existed between the defendant and the child or the young person a marriage that was valid, or recognised as valid, under the law of:

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

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

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

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

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Offences involving procuring or “grooming” child for sexual activity

(2) It is a defence to a prosecution for an offence against subsection 272.14(1) or 272.15(1) if the defendant proves that:

(a) at the time he or she committed the offence, there existed between the defendant and the child a marriage that was valid, or recognised as valid, under the law of:

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

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

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

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

Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.

Subdivision C - Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia

272.18 Benefiting from offence against this Division

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of benefiting from an offence against this Division; and

(c) the conduct is reasonably capable of resulting in the person benefiting from such an offence.

Penalty: Imprisonment for 20 years.

(2) Subsection (1) applies:

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

(b) whether or not the person intends to benefit financially from an offence against this Division; and

(c) whether or not an offence against this Division is in fact committed.

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

Note: For absolute liability, see section 6.2.

272.19 Encouraging offence against this Division

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and

(c) the conduct is reasonably capable of encouraging such an offence.

Penalty: Imprisonment for 20 years.

(2) Subsection (1) applies:

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

(b) whether or not an offence against this Division is in fact committed.

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

Note: For absolute liability, see section 6.2.

(4) In this section, encourage means:

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

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

272.20 Preparing for or planning offence against this Division

Offences involving sexual intercourse or other sexual activity with child, and benefiting offence

(1) A person commits an offence if:

(a) the person does an act; and

(b) the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.

Penalty: Imprisonment for 10 years.

Offences involving sexual intercourse or other sexual activity with young person

(2) A person commits an offence if:

(a) the person does an act; and

(b) the person does so with the intention of preparing for, or planning, an offence against section 272.12 or 272.13.

Penalty: Imprisonment for 5 years.

(3) Subsections (1) and (2) apply:

(a) whether the act is done within or outside Australia; and

(b) whether or not an offence against a provision referred to in paragraph (1)(b) or (2)(b) is in fact committed; and

(c) whether or not the act is done in preparation for, or planning, a specific offence against a provision referred to in paragraph (1)(b) or (2)(b); and

(d) whether or not the act is done in preparation for, or planning, more than one offence against a provision referred to in paragraph (1)(b) or (2)(b).

Subdivision D - Video link evidence

272.21 When court may take evidence by video link

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

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

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

(c) the facilities required by section 272.22 are available or can reasonably be made available; and

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

(i) cause unreasonable expense or inconvenience; or

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

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

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

272.22 Technical requirements for video link

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

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

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

are equipped with video facilities that:

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

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

(2) In subsection (1):

appropriate persons means such persons as the court considers appropriate.

272.23 Application of laws about witnesses

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

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

272.24 Administration of oaths and affirmations

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

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

(b) as follows:

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

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

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

272.25 Expenses

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

272.26 Other laws about foreign evidence not affected

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

Subdivision E - Other rules about conduct of trials

272.27 Evidence relating to a person’s age

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

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

(a) the person’s appearance;

(b) medical or other scientific opinion;

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

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

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

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

272.28 Alternative verdicts

If, on a trial for an offence (the column 1 offence ) against a provision referred to in column 1 of an item in the following table, the trier of fact:

(a) is not satisfied that the defendant is guilty of the column 1 offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the column 2 offence ) against a provision referred to in column 2 of that item;

it may find the defendant not guilty of the column 1 offence but guilty of the column 2 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

272.29 Double jeopardy

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

272.30 Sentencing

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

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

272.31 Consent to commencement of proceedings where defendant under 18

(1) Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

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

Subdivision A - Preliminary

273.1 Definitions

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

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

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

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

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

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

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

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

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

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

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

273.2 Who can be prosecuted for an offence committed outside Australia

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

(a) an Australian citizen; or

(b) a resident of Australia; or

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

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

273.2A Consent to commencement of proceedings where defendant under 18

(1) Proceedings for an offence against this Division must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

273.3 Double jeopardy

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

273.4 Saving of other laws

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

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

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

(1) A person commits an offence if:

(a) the person:

(i) has possession or control of material; or

(ii) produces, distributes or obtains material; or

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

(b) the material is child pornography material; and

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

Penalty: Imprisonment for 15 years.

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

Note: For absolute liability, see section 6.2.

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

(1) A person commits an offence if:

(a) the person:

(i) has possession or control of material; or

(ii) produces, distributes or obtains material; or

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

(b) the material is child abuse material; and

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

Penalty: Imprisonment for 15 years.

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

Note: For absolute liability, see section 6.2.

273.7 Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:

(a) the person commits an offence against either of the following provisions on 3 or more separate occasions:

(i) section 273.5 (possessing etc. child pornography material outside Australia);

(ii) section 273.6 (possessing etc. child abuse material outside Australia); and

(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 273.5 or 273.6.

(3) To avoid doubt, a person does not commit an offence against section 273.5 or 273.6 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 273.5 or 273.6 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 273.8.

(7) A person who has been convicted or acquitted of an offence (the underlying offence ) against section 273.5 or 273.6 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

273.8 Alternative verdict if aggravated offence not proven

If, on a trial for an offence (the aggravated offence ) against subsection 273.7(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence against section 273.5 or 273.6;

it may find the defendant not guilty of the aggravated offence but guilty of the offence against section 273.5 or 273.6, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Subdivision C - Defences

273.9 Defences to offences against this Division

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

(a) is of public benefit; and

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

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

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

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

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

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

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

(d) conducting scientific, medical or educational research.

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

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

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

(i) a law enforcement officer; or

(ii) an intelligence or security officer; or

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

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

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

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

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

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

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

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

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

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

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

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

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

Subdivision D - Video link evidence

273.10 When court may take evidence by video link

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

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

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

(c) the facilities required by section 273.11 are available or can reasonably be made available; and

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

(i) cause unreasonable expense or inconvenience; or

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

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

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

273.11 Technical requirements for video link

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

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

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

are equipped with video facilities that:

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

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

(2) In subsection (1):

appropriate persons means such persons as the court considers appropriate.

273.12 Application of laws about witnesses

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

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

273.13 Administration of oaths and affirmations

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

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

(b) as follows:

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

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

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

273.14 Expenses

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

273.15 Other laws about foreign evidence not affected

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