Criminal Code Act 1995
Schedule
-
The Criminal Code
Division 474
-
Telecommunications offences
Subdivision F
-
Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16
SECTION 474.28
Provisions relating to offences against this Subdivision
Age-related issues - application of absolute liability
(1)
For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:
(a) in the case of an offence against section 474.25A or 474.27AA - the child is under 16 years of age; and
(b) in the case of an offence against section 474.26 , 474.27 or 474.27A - the recipient is someone who is under 16 years of age.
(2)
For the purposes of an offence against subsection 474.25A(2) , 474.26(2) or (3) , 474.27(2) or (3) or 474.27AA(2) or (3) , absolute liability applies to the physical elements of circumstance of the offence that the participant is at least 18 years of age.
Proof of belief about age - evidence of representation
(3)
For the purposes of sections 474.26 , 474.27 , 474.27AA and 474.27A , evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
(4)
(Repealed by No 70 of 2020)
Determining age - admissible evidence
(5)
In determining for the purposes of this Subdivision 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.
(6)
Subsection (5) 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.
(7)
If, on a trial for an offence against a provision of this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
Issues relating to aggravated offence involving sexual activity
(7A)
For the purposes of an offence against subsection 474.25B(1) :
(a) there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and
(b) absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and
(c) strict liability applies to the physical element of circumstance of the offence that the defendant 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 defendant.
Impossibility of sexual activity taking place
(8)
A person may be found guilty of an offence against section 474.26 , 474.27 or 474.27AA even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious persons
(9)
For the purposes of sections 474.26 , 474.27 , 474.27AA and 474.27A , it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
(9A)
For the purposes of an offence against section 474.27AA , it does not matter that the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(10)
It is not an offence to attempt to commit an offence against section 474.26 , 474.27 or 474.27AA .
(11)
(Repealed by No 42 of 2010)
Section 3
CHAPTER 10 - NATIONAL INFRASTRUCTURE Part 10.6 - Telecommunications Services
View history note
Hide history noteAge-related issues - application of absolute liability
(1)
For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:
(a) in the case of an offence against section 474.25A or 474.27AA - the child is under 16 years of age; and
(b) in the case of an offence against section 474.26 , 474.27 or 474.27A - the recipient is someone who is under 16 years of age.
Note 1:
For absolute liability , see section 6.2.
Note 2:
For a defence based on belief about age, see section 474.29.
(2)
For the purposes of an offence against subsection 474.25A(2) , 474.26(2) or (3) , 474.27(2) or (3) or 474.27AA(2) or (3) , absolute liability applies to the physical elements of circumstance of the offence that the participant is at least 18 years of age.
Note 1:
For absolute liability , see section 6.2 .
Note 2:
For a defence based on belief about age, see section 474.29 .
Proof of belief about age - evidence of representation
(3)
For the purposes of sections 474.26 , 474.27 , 474.27AA and 474.27A , evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
(4)
(Repealed by No 70 of 2020)
Determining age - admissible evidence
(5)
In determining for the purposes of this Subdivision 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.
(6)
Subsection (5) 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.
(7)
If, on a trial for an offence against a provision of this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
Issues relating to aggravated offence involving sexual activity
(7A)
For the purposes of an offence against subsection 474.25B(1) :
(a) there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and
(b) absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and
(c) strict liability applies to the physical element of circumstance of the offence that the defendant 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 defendant.
Note 1:
For absolute liability, see section 6.2 .
Note 2:
For strict liability, see section 6.1 .
Note 3:
For a defence based on belief that the child did not have a mental impairment, see section 474.29 .
Impossibility of sexual activity taking place
(8)
A person may be found guilty of an offence against section 474.26 , 474.27 or 474.27AA even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious persons
(9)
For the purposes of sections 474.26 , 474.27 , 474.27AA and 474.27A , it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
(9A)
For the purposes of an offence against section 474.27AA , it does not matter that the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(10)
It is not an offence to attempt to commit an offence against section 474.26 , 474.27 or 474.27AA .
(11)
(Repealed by No 42 of 2010)
This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.