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

Schedule 1   Amendments relating to sexual offences against children

Part 2   Amendments relating to child sex offences involving postal or similar services, or carriage services

Criminal Code Act 1995

56   Section 474.29 of the Criminal Code

Repeal the section, substitute:

474.29 Defences to offences against this Subdivision

Offences involving sexual activity - belief that child at least 16 years of age

(1) It is a defence to a prosecution for an offence against section 474.25A if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the child was at least 16 years of age.

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

Offences involving sexual activity with other participant - belief that participant under 18 years of age

(2) It is a defence to a prosecution for an offence against subsection 474.25A(2) if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the participant was under 18 years of age.

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

Aggravated offence involving sexual activity - belief that child did not have mental impairment

(3) It is a defence to a prosecution for an offence against subsection 474.25B(1) (as that subsection applies because of subparagraph 474.25B(1)(b)(i)) if the defendant proves that, at the time the defendant committed the 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.

Offences involving procuring or “grooming” person for sexual activity with other participant - belief that participant under 18 years of age

(4) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3) or 474.27(2) or (3) if the defendant proves that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age.

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

Offences involving transmission of communication - belief that recipient at least 16 years of age

(5) It is a defence to a prosecution for an offence against section 474.26, 474.27 or 474.27A if the defendant proves that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age.

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

(6) In determining whether the defendant had the belief mentioned in one of the preceding subsections of this section, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.