CRIMINAL CODE AMENDMENT (MISREPRESENTATION OF AGE TO A MINOR) BILL 2010

i Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 No. ,

2010

Contents

1 Short

title

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2 Commencement

.................................................................................

3 Object

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4 Schedule(s)

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Schedule 1--Amendment of the Criminal Code Act 1995

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 No. , 2010

A Bill for an Act to amend the Criminal Code Act

1995 to protect minors by introducing offences

about misrepresentation of age online

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Criminal Code Amendment

(Misrepresentation of Age to a Minor) Act 2010.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

2 Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 No. ,

2010

3 Object

The object of this Act is to make it a criminal offence for a person

over 18 years to intentionally misrepresent their age in

communications with a person they reasonably believe to be under

18 years of age, whether:

(a) for the purpose of misrepresenting their age in and of itself;

(b) to make it easier to meet the person physically; or

4 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendment of the Criminal Code Act 1995 Schedule 1

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 No. , 2010

Schedule 1--Amendment of the Criminal Code

Act 1995

1 The Schedule (at the end of Division 474 of the Criminal

Code)

Add:

474.40 Misrepresenting age to persons under 18 years of age

(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a

communication to another person (the recipient); and

(b) the sender does this with the intention of misrepresenting his

or her age; and

to be, under 18 years of age; and

(d) the sender is at least 18 years of age.

Penalty: Imprisonment for 3 years.

(2) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a

communication to another person (the recipient); and

(b) the sender does this with the intention of misrepresenting his

or her age; and

meet the recipient physically; and

(d) the recipient is someone who is, or who the sender believes

to be, under 18 years of age; and

(e) the sender is at least 18 years of age.

Penalty: Imprisonment for 5 years.

(3) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a

communication to another person (the recipient); and

(b) the sender does this with the intention of misrepresenting his

or her age; and

Schedule 1 Amendment of the Criminal Code Act 1995

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offence, other than an offence under this section; and

(d) the recipient is someone who is, or who the sender believes

to be, under 18 years of age; and

(e) the sender is at least 18 years of age.

Penalty: Imprisonment for 8 years.

474.41 Provisions relating to offences against section 474.40

Age-related issues

(1) For the purposes of an offence against section 474.40, absolute

liability applies to the physical element of circumstance of the

offence that the recipient is someone who is under 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.

(2) For the purposes of section 474.40, evidence that the recipient was

represented to the sender as being under or of a particular age is, in

the absence of evidence to the contrary, proof that the sender

believed the recipient to be under or of that age.

(3) In determining for the purposes of section 474.40 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;

record from a country outside Australia;

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

(4) Subsection (3) 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.

(5) If, on a trial for an offence against section 474.40, evidence may be

treated as admissible because of subsection (3), the court must

warn the jury that it must be satisfied beyond reasonable doubt in

determining the question.

Amendment of the Criminal Code Act 1995 Schedule 1

Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2010 No. , 2010

Fictitious recipient

(6) For the purposes of section 474.40, 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.

Attempt not offence

(7) It is not an offence to attempt to commit an offence against

section 474.40.

474.42 Defences to offences against section 474.40

(1) It is a defence to a prosecution for an offence against

section 474.40 that the defendant believed at the time the

communication was transmitted that the recipient was not under 18

years of age.

Note:

A defendant bears an evidential burden in relation to the matter in this

section, see subsection 13.3(3).

(2) In determining whether the defendant had the belief referred to in

subsection (1), the jury may take into account whether the alleged

belief was reasonable in the circumstances.

(3) A person is not criminally responsible for an offence against

section 474.40 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).

(4) For the purposes of subsection (3), 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 a Territory;

Schedule 1 Amendment of the Criminal Code Act 1995

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(b) monitoring compliance with, or investigating a contravention

of, a law of the Commonwealth, a State or a Territory; or

(d) conducting scientific, medical or educational research that

has been approved by the Minister in writing for the purposes

of this section.

(5) A person is not criminally responsible for an offence against

section 474.40 if:

(a) the person is, at the time of the offence, a law enforcement

officer, or an intelligence or security officer, acting in the

course of his or her duties; and

(b) 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).

Commonwealth of Australia Bills

CRIMINAL CODE AMENDMENT (MISREPRESENTATION OF AGE TO A MINOR) BILL 2010