CRIMES LEGISLATION AMENDMENT (ENHANCED CHILD PROTECTION FROM PREDATORY TOURISM OFFENCES) BILL 2008

i Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism

Offences) Bill 2008 No. , 2008

Contents

Part 1--Preliminary

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts

Australian Crime Commission Act 2002

Crimes Act 1914

Criminal Code Act 1995

Surveillance Devices Act 2004

Telecommunications (Interception and Access) Act 1979

Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences)

Bill 2008 No. , 2008 1

A Bill for an Act to amend the law relating to

sexual offences against children, and for related

purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Enhanced Child Protection from Predatory Tourism Offences) Act

2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism

Offences) Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

item 1

The day on which this Act receives the

Royal Assent.

3. Schedule 1,

item 2 to 22

The 28th day after the day on which this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 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repealed as set out in the applicable items in the Schedule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.

Amend ments Schedule 1

Crimes Legislation Amendment (Enhanced Child Protection from Predatory Tourism Offences)

Bill 2008 No. , 2008 3

Schedule 1

Amendments

Australian Crime Commission Act 2002

1 Subsection 4(1) (paragraph (d) of the definition of serious

and organised crime)

After "Proceeds of Crime Act 2002,", insert "an offence against

section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27 of the

Criminal Code,".

Crimes Act 1914

2 After section 9B

Insert:

10 Forfeiture of child abuse or child pornography material used in

commission of sexual offences against children

(1) If a court:

(a) convicts a person of an offence referred to in subsection (4);

(b) makes an order under section 19B in relation to a person

charged with such an offence;

the court must order the forfeiture to the Commonwealth of any of

the following that were used or otherwise involved in the

commission of the offence:

the meaning of Part 10.6 of the Criminal Code);

(d) an article that contains such material.

Note:

See sections 473.1 and 473.4 of the Criminal Code for the meanings

of child abuse material and child pornography material.

(2) If:

(a) a forfeiture application is made to a court (see section 11);

and

(b) the court is satisfied, on the balance of probabilities, that an

offence referred to in subsection (4) has been committed by a

person;

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the court must order the forfeiture to the Commonwealth of any of

the following that were used or otherwise involved in the

commission of the offence:

the meaning of Part 10.6 of the Criminal Code);

(d) an article that contains such material.

Note:

See sections 473.1 and 473.4 of the Criminal Code for the meanings

of child abuse material and child pornography material.

(3) A finding of the court for the purposes of subsection (2):

(a) need not be based on a finding that a particular person

committed any offence; and

(b) need not be based on a finding as to the commission of a

particular offence, and can be based on a finding that some

offence of a kind referred to in subsection (4) was committed.

(4) For the purposes of this section, the offences are:

(a) an offence against section 474.19, 474.20, 474.22, 474.23,

474.26 or 474.27 of the Criminal Code; and

(b) an offence against Division 272 or 273 of the Criminal Code.

11 Applications for an order for forfeiture under subsection 10(2)

(1) An application (a forfeiture application) for an order under

subsection 10(2) may be made by the Director of Public

Prosecutions or a constable to the Federal Court of Australia, the

Federal Magistrates Court or a court of a State or Territory.

(2) A forfeiture application must be accompanied by an affidavit

dealing with the matters referred to in subsection 10(2).

(3) A person who makes a forfeiture application must give written

notice of the application to:

(a) any person who claims ownership of, or a right of custody or

control over, material or an article covered by the

application; and

(b) any person whom the applicant reasonably believes may have

ownership of, or a right of custody or control over, material

or an article covered by the application.

(4) A court to which a forfeiture application is made:

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Bill 2008 No. , 2008 5

(a) may still make an order under subsection 10(2) if a person

entitled to be given notice of the application fails to appear at

the hearing of the application; and

(b) may, at any time after the making of the application, make

any interim orders that it considers appropriate and, in

particular, orders relating to the delivery or retention of

things pending the decision of the court on the application.

12 Effect of forfeiture under section 10

(1) Material or an article forfeited to the Commonwealth under

section 10 becomes the property of the Commonwealth.

(2) A constable may, without warrant, seize material or an article that

is forfeited to the Commonwealth under section 10.

(3) If material or an article is forfeited to the Commonwealth under

section 10:

(a) the material or article must be retained until the later of the

following times:

(i) 3 months after the article is forfeited;

(ii) the time when the Commissioner is satisfied that the

material will not be required in an investigation or

proceedings under a law of the Commonwealth or of a

State or Territory; and

(b) after the later of the times referred to in paragraph (a), the

Commissioner may deal with the material or article in any

way the Commissioner considers appropriate, including, but

not limited to, destroying the material or article.

12A Copies of articles forfeited unde r section 10

(1) This section applies to a person who is the owner of, or has a right

of custody or control over, an article that is forfeited to the

Commonwealth under section 10.

(2) If the article is in the custody, possession or control of a

Commonwealth officer, the officer must, on request by the person,

give the person a copy of so much of the article, or so much of the

information contained in the article, as:

(a) can readily be copied; and

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(b) does not constitute child abuse material or child pornography

material for the purposes of section 10.

(3) The Commonwealth officer need not comply with subsection (2) if

he or she believes on reasonable grounds that to do so might:

(a) endanger the safety of a person; or

(b) prejudice an investigation or prosecution.

12B Compensation for articles forfeited under section 10

(1) This section applies to a person:

(a) who is the owner of, or has a right of custody or control over,

an article that is forfeited to the Commonwealth under

section 10; and

(b) who is not:

(i) a person convicted of the offence to which the forfeiture

relates; or

(ii) a person in relation to whom an order was made under

section 19B in relation to the offence to which the

forfeiture relates.

(2) If the article is electronic equipment or a data storage device, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person in relation to the replacement of the

article.

(3) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

court of competent jurisdiction for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

(4) In this section:

data storage device means a thing containing, or designed to

contain, data for use by a computer.

3 Paragraph 15Y(1)(a)

Repeal the paragraph.

4 After paragraph 15Y(1)(caa)

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Insert:

(cab) an offence against Division 272 of the Criminal Code (child

sex offences outside Australia); or

(cac) an offence against Division 273 of the Criminal Code

(offences involving child pornography material or child

abuse material outside Australia); or

5 Paragraph 15Y(1)(e)

Omit "paragraph (a), (b), (c), (caa) or (d)", substitute "paragraph (b),

(c), (caa), (cab), (cac) or (d)".

6 Paragraph 15Y(1)(f)

Omit "paragraph (a), (b), (c), (caa), (d) or (e)", substitute

"paragraph (b), (c), (caa), (cab), (cac), (d) or (e)".

7 Section 15YT

Repeal the section, substitute:

15YT Video link evidence provisions relating to child sex offences

outside Australia unaffected

Nothing in this Part affects the operation of:

(a) Subdivision D of Division 272 of the Criminal Code (child

sex offences outside Australia--video link evidence); or

(b) Subdivision D of Division 273 of the Criminal Code

(offences involving child pornography material or child

abuse material outside Australia--video link evidence).

8 Part IIIA

Repeal the Part.

Criminal Code Act 1995

9 At the end of Chapter 8 of the Criminal Code

Add:

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Division 272--Child sex offences outside Australia

Subdivision A--Preliminary

272.1 Definitions

In this Division:

act of indecency has the meaning given by section 272.2.

induce means induce by threats, promises or otherwise.

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 272.4.

sexual intercourse has the meaning given by section 272.3.

272.2 Meaning of act of indecency

(1) In this Code, act of indecency means an act that:

(a) is of a sexual nature; and

(b) involves the human body, or bodily actions or functions; and

breach of ordinary contemporary standards of decency and

propriety in the Australian community.

(2) To avoid doubt, act of indecency includes an indecent assault.

272.3 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, carried out by another person by an object; or

(d) cunnilingus; or

(e) the continuation of any activity mentioned in paragraph (a),

(b), (c) or (d).

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(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.

272.4 Extension of criminal responsibility

(1) A reference in this Division (except section 272.16) 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; or

(ii) an offence against section 11.1, 11.5 or 272.16 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 or 11.3.

(2) A reference in section 272.16 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.

(3) Section 11.1 does not apply to an offence against section 272.11,

272.12 or 272.17.

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

(5) Section 11.5 does not apply to an offence against section 272.16.

272.5 Who can be prosecuted for an offence committed overseas

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

Commonwealth or of a State or Territory; or

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(d) any other body corporate that carries on its activities

principally in Australia.

272.6 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 overseas

272.7 Sexual intercourse with person under 16

(1) A person commits an offence if:

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

and

(b) the other person is under 16; and

Penalty: Imprisonment for 17 years.

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

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

272.8 Inducing pe rson unde r 16 to engage in sexual intercourse

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

(a) the first person induces a second person to engage in sexual

intercourse with a third person in the presence of the first

person; and

(b) the second person is under 16; and

Penalty: Imprisonment for 17 years.

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

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

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272.9 Sexual conduct involving person under 16

(1) A person commits an offence if:

(a) the person commits an act of indecency on another person;

and

(b) the other person is under 16; and

Penalty: Imprisonment for 15 years.

(2) A person commits an offence if:

(a) the person submits to an act of indecency committed by

another person; and

(b) the other person is under 16; and

Penalty: Imprisonment for 15 years.

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

(a) the first person commits an act of indecency; and

(b) the act of indecency is committed in the presence of another

person; and

person's presence during the act; and

(d) the other person is under 16; and

(e) the act is committed outside Australia.

Penalty: Imprisonment for 15 years.

(4) A person (the first person) commits an offence if:

(a) the first person submits to an act of indecency committed by

a second person; and

(b) the act of indecency is committed in the presence of a third

person; and

person's presence during the act; and

(d) the third person is under 16; and

(e) the act is committed outside Australia.

Penalty: Imprisonment for 15 years.

(5) A person (the first person) commits an offence if:

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(a) the first person engages in sexual intercourse with a second

person; and

(b) the sexual intercourse is engaged in in the presence of a third

person; and

person's presence during the sexual intercourse; and

(d) the third person is under 16; and

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

Penalty: Imprisonment for 15 years.

(6) Absolute liability applies to paragraphs (1)(b) and (c), (2)(b) and

(c), (3)(d) and (e), (4)(d) and (e) and (5)(d) and (e).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

(7) For the purposes of an offence against subsection (1), (2), (3) or

(4), absolute liability applies to the physical element of

circumstance that the act of indecency referred to in that subsection

is in fact an act of indecency.

Note:

For absolute liability, see section 6.2.

272.10 Inducing pe rson unde r 16 to be involved in sexual conduct

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

(a) the first person induces a second person to commit, to submit

to, or to be present while a third person commits, an act of

indecency in the presence of the first person; and

(b) the second person is under 16; and

(i) outside Australia; and

(ii) by or on a person other than the first person.

Penalty: Imprisonment for 15 years.

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

(a) the first person induces a second person to be present while a

third and fourth person engage in sexual intercourse in the

presence of the first and second persons; and

(b) the second person is under 16; and

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Penalty: Imprisonment for 15 years.

(3) Absolute liability applies to paragraph (1)(b),

subparagraph (1)(c)(i) and paragraphs (2)(b) and (c).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

(4) For the purposes of an offence against subsection (1), absolute

liability applies to the physical element of circumstance of the

offence that the act of indecency referred to in that subsection is in

fact an act of indecency.

Note:

For absolute liability, see section 6.2.

272.11 Engaging in conduct to procure persons unde r 16 years of

age

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

(a) the first person engages in conduct in relation to a second

person; and

(b) the first person does so with the intention of procuring the

second person:

(i) to engage in, or submit to, sexual activity with the first

person outside Australia; or

(ii) to be present while the first person engages in, or

submits to, sexual activity outside Australia; and

(i) who is under 16; or

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

(d) any of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the second person 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 second person is in Australia when

that conduct occurs.

Penalty: Imprisonment for 15 years.

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

(a) the first person engages in conduct in relation to a second

person; and

(b) the first person does so with the intention of procuring the

second person:

(i) to engage in, or submit to, sexual activity with a third

person outside Australia; or

(ii) to be present with the first person while a third person

engages in, or submits to, sexual activity (other than

with the first or second person) outside Australia; and

(i) who is under 16; or

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

(d) any of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the second person 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 second person is in Australia when

that conduct occurs.

Penalty: Imprisonment for 15 years.

(3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i)

and paragraphs (1)(d) and (2)(d).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

(4) A person may be found guilty of an offence against subsection (1)

or (2) even if it is impossible for the sexual activity referred to in

that subsection to take place.

(5) For the purposes of subsection (1) or (2), it does not matter that the

second person is a fictitious person represented to the first person

as a real person.

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272.12 Engaging in conduct to "groom" persons under 16 years of

age

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

(a) the first person engages in conduct in relation to a second

person; and

(b) the first person does so with the intention of making it easier

to procure the second person:

(i) to engage in, or submit to, sexual activity with the first

person outside Australia; or

(ii) to be present while the first person engages in, or

submits to, sexual activity outside Australia; and

(i) who is under 16; or

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

(d) any of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the second person 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 second person is in Australia when

that conduct occurs.

Penalty: Imprisonment for 12 years.

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

(a) the first person engages in conduct in relation to a second

person; and

(b) the first person does so with the intention of making it easier

to procure the second person:

(i) to engage in, or submit to, sexual activity with a third

person outside Australia; or

(ii) to be present with the first person while a third person

engages in, or submits to, sexual activity (other than

with the first or second person) outside Australia; and

(i) who is under 16; or

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

(d) any of the following apply:

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(i) the conduct referred to in paragraph (a) occurs wholly or

partly outside Australia;

(ii) the second person 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 second person is in Australia when

that conduct occurs.

Penalty: Imprisonment for 12 years.

(3) Absolute liability applies to subparagraphs (1)(c)(i) and (2)(c)(i)

and paragraphs (1)(d) and (2)(d).

Note 1:

For absolute liability, see section 6.2.

Note 2:

For a defence based on belief about age, see section 272.13.

(4) A person may be found guilty of an offence against subsection (1)

or (2) even if it is impossible for the sexual activity referred to in

that subsection to take place.

(5) For the purposes of subsection (1) or (2), it does not matter that the

second person is a fictitious person represented to the first person

as a real person.

272.13 Defence based on belief about age

(1) Section 272.7, 272.8, 272.9 or 272.10 does not apply if, at the time

of the sexual intercourse or act of indecency, the defendant

believed that the person referred to in that section as being under

16 was 16 or over.

Note:

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

subsection (see subsection 13.3(3)).

(2)

Section 272.11 or 272.12 does not apply if:

(a) at the time the defendant engaged in the conduct constituting

the offence, he or she believed that the person referred to in

that section as being under 16 was 16 or over; and

(b) the conduct constituting the offence was consensual.

Note:

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

subsection (see subsection 13.3(3)).

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(3) In determining whether the defendant had the belief mentioned in

subsection (1) or (2), the jury may take into account whether the

alleged belief was reasonable in the circumstances.

272.14 Defence based on valid and genuine marriage

(1) Section 272.7 or 272.9 does not apply if the defendant proves that:

(a) at the time of the sexual intercourse or act of indecency, there

existed between the defendant and the person referred to in

that section as being under 16 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 allegedly committed; or

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

(b) when it was solemnised, the marriage was genuine; and

Note:

A defendant bears a legal burden in relation to the matters in this

subsection (see section 13.4).

(2) Subsection 272.11(1) or 272.12(1) does not apply if the defendant

proves that:

(a) at the time he or she allegedly engaged in the conduct

constituting the offence against that subsection, there existed

between the defendant and the person referred to in that

subsection as being under 16 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 allegedly 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 matters in this

subsection (see section 13.4).

Subdivision C--Offences of benefiting from, encouraging or

preparing to commit sexual offences against children

overseas

272.15 Benefiting from offence against this Division

(1) A person commits an offence if:

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(a) the person engages in conduct; and

(b) the person does so with the intention of benefiting from

conduct of a kind that would constitute an offence against

this Division; and

benefiting from conduct of a kind that would constitute an

offence against this Division.

Penalty: Imprisonment for 17 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

conduct of a kind that would constitute an offence against

this Division; and

offence against this Division in fact occurs or has occurred.

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

Note:

For absolute liability, see section 6.2.

272.16 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 conduct

of a kind that would constitute an offence against this

Division (other than this section or section 272.17); and

a kind that would constitute an offence against this Division

(other than this section or section 272.17).

Penalty: Imprisonment for 17 years.

Note:

These are examples of conduct covered by paragraph (1)(c):

(a)

assisting a person to travel outside Australia in order to commit

an act that would constitute an offence against Subdivision B;

(b)

advertising an offer to assist a person, or an arrangement for

assisting a person, as mentioned in paragraph (a).

(2) Subsection (1) applies:

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

Australia; and

(b) whether or not conduct of a kind that would constitute an

offence against this Division in fact occurs or has occurred.

(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.

272.17 Preparing to commit offence against this Division

(1) A person commits an offence if the person does any act in

preparation for, or planning, conduct of a kind that would

constitute an offence against section 272.7, 272.8, or 272.15.

Penalty: Imprisonment for 17 years.

Note:

An example of an act that would constitute an offence against

subsection (1) is booking an airline ticket to travel outside Australia in

preparation for engaging in sexual intercourse with a person who is

under 16 while outside Australia.

(2) A person commits an offence if the person does any act in

preparation for, or planning, conduct of a kind that would

constitute an offence against section 272.9 or 272.10.

Penalty: Imprisonment for 15 years.

Note:

An example of an act that would constitute an offence against

subsection (2) is booking an airline ticket to travel outside Australia in

planning to commit an act of indecency on a person who is under 16

while outside Australia.

(3) A person commits an offence under subsection (1) or (2) even if:

(a) conduct of a kind that would constitute the offence referred

to in that subsection does not occur; or

(b) the person's act is not done in preparation for, or planning,

specific conduct of a kind that would constitute the offence

referred to in that subsection; or

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than one course of conduct of a kind that would constitute the

offence referred to in that subsection.

Subdivision D--Video link evidence

272.18 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

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.

272.19 Technical require ments 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:

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):

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appropriate persons means such persons as the court considers

appropriate.

272.20 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.

272.21 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.

272.22 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.

272.23 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.

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Subdivision E--Other rules about conduct of trials

272.24 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 whether a person

is under 16, or was under 16 at a particular time, or 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.

(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.

272.25 Alte rnative verdicts

(1) If, on a trial for an offence against section 272.7, the jury is not

satisfied that the defendant is guilty of the offence, but is satisfied

that he or she is guilty of an offence against section 272.9, it may

find the defendant not guilty of the offence against section 272.7

but guilty of the offence against section 272.9.

(2) If, on a trial for an offence against section 272.8, the jury is not

satisfied that the defendant is guilty of the offence, but is satisfied

that he or she is guilty of an offence against subsection 272.10(1),

it may find the defendant not guilty of the offence against

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section 272.8 but guilty of the offence against subsection

272.10(1).

272.26 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.

272.27 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, 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).

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

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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 overseas

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

Commonwealth or of a State or Territory; or

(d) any other body corporate that carries on its activities

principally in Australia.

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.

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Subdivision B--Offences committed overseas involving child

pornography material or child abuse material

273.5 Possessing, controlling, producing, distributing or obtaining

child pornography mate rial 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

Australia.

Penalty: Imprisonment for 10 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

Australia.

Penalty: Imprisonment for 10 years.

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

Note:

For absolute liability, see section 6.2.

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Subdivision C--Defences

273.7 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

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

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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

273.8 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

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

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(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.

273.9 Technical require ments 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:

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.

273.10 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.

273.11 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

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(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.

273.12 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.

273.13 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.

10 Paragraphs 474.27(1)(b), (2)(b) and (3)(b) of the Criminal

Code

Repeal the paragraphs.

11 Subsections 474.27(4) and (5) of the Criminal Code

Repeal the subsections.

12 Subsection 474.28(11) of the Criminal Code

Repeal the subsection.

13 Dictionary in the Criminal Code

Insert:

act of indecency has the meaning given by section 272.2.

14 Dictionary in the Criminal Code

Insert:

procure a person, in relation to sexual activity, includes:

(a) encourage, entice or recruit the person in relation to that

activity; or

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(b) induce the person (whether by threats, promises or otherwise)

in relation to that activity.

15 Dictionary in the Criminal Code

Insert:

sexual activity means:

(a) sexual intercourse; or

(b) an act of indecency; or

the human body, or bodily actions or functions (whether or

not that activity involves physical contact between people).

16 Dictionary in the Criminal Code

Insert:

sexual intercourse has the meaning given by section 272.3.

Surveillance Devices Act 2004

17 Subparagraph 30(1)(a)(iii)

Repeal the subparagraph.

18 Subparagraph 30(1)(a)(viii)

Omit "or 270", substitute ", 270, 272 or 273".

Telecommunications (Interception and Access) Act 1979

19 Subsection 5D(2A)

Repeal the subsection.

20 Subparagraph 5D(3)(d)(xi)

Omit "(including an offence against Part IIIA of the Crimes Act 1914)".

21 Subsection 5D(3B)

Repeal the subsection.

22 Before subsection 5D(4)

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Bill 2008 No. , 2008 31

Insert:

Sexual offences against children and offences involving child

pornography

(3C) An offence is also a serious offence if:

(a) it is an offence against Division 272 or 273, or

section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, of

the Criminal Code; or

(b) the particular conduct constituting the offence otherwise

involved, involves or would involve:

(i) the production, publication, possession, supply or sale

of, or other dealing in, child pornography; or

(ii) consenting to or procuring the employment of a child, or

employing a child, in connection with child

pornography.

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (ENHANCED CHILD PROTECTION FROM PREDATORY TOURISM OFFENCES) BILL 2008