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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Combatting Child Sexual Exploitation
Legislation Amendment Bill 2019
No. , 2019
(Home Affairs)
A Bill for an Act to amend various laws relating to
child sexual exploitation, and for related purposes
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Failing to protect children from, or report, child
sexual abuse offences
3
Crimes Act 1914
3
Criminal Code Act 1995
3
Schedule 2--Possession of child-like sex dolls etc.
13
Crimes Act 1914
13
Criminal Code Act 1995
13
Customs Act 1901
15
Surveillance Devices Act 2004
16
Telecommunications (Interception and Access) Act 1979
16
Schedule 3--Possession or control of child abuse material
obtained or accessed using a carriage service
17
Criminal Code Act 1995
17
Schedule 4--Persistent sexual abuse of child outside Australia
19
Criminal Code Act 1995
19
Schedule 5--Forced marriage
20
Criminal Code Act 1995
20
Schedule 6--Restricted defence of marriage for child sex
offences
22
Criminal Code Act 1995
22
Schedule 7--Expanding the meaning of child abuse material
24
Part 1--Amendments
24
Crimes Act 1914
24
Criminal Code Act 1995
25
Customs Act 1901
29
ii
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
Telecommunications (Interception and Access) Act 1979
30
Part 2--Application and transitional provisions
32
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
1
A Bill for an Act to amend various laws relating to
1
child sexual exploitation, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Combatting Child Sexual Exploitation Legislation
5
Amendment Act 2019.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Schedule 2
Immediately after the commencement of the
provisions covered by table item 4.
4. Schedules 3 to
7
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Failing to protect children from, or report, child sexual abuse offences Schedule 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
3
Schedule 1--Failing to protect children from,
1
or report, child sexual abuse offences
2
3
Crimes Act 1914
4
1 After paragraph 15Y(1)(cac)
5
Insert:
6
(cad) an offence against Division 273B of the Criminal Code
7
(protection of children);
8
Criminal Code Act 1995
9
2 Before paragraph 5(2)(m)
10
Insert:
11
(lb) Division 273B (protection of children);
12
3 Before Division 274 of the Criminal Code
13
Insert:
14
Division 273B--Protection of children
15
Subdivision A--Preliminary
16
273B.1 Definitions
17
In this Division:
18
child sexual abuse offence means:
19
(a) a Commonwealth child sex offence within the meaning of the
20
Crimes Act 1914; or
21
(b) a State or Territory registrable child sex offence.
22
Commonwealth officer means any of the following:
23
(a) a Minister;
24
(b) a Parliamentary Secretary;
25
(c) an individual who holds an appointment under section 67 of
26
the Constitution;
27
Schedule 1 Failing to protect children from, or report, child sexual abuse offences
4
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
(d) an APS employee;
1
(e) an individual employed by the Commonwealth otherwise
2
than under the Public Service Act 1999;
3
(f) a member of the Australian Defence Force;
4
(g) a member or special member of the Australian Federal
5
Police;
6
(h) an individual (other than an official of a registered industrial
7
organisation) who holds or performs the duties of an office
8
established by or under a law of the Commonwealth, other
9
than:
10
(i) the Corporations (Aboriginal and Torres Strait
11
Islander) Act 2006; or
12
(ii) the Australian Capital Territory (Self-Government) Act
13
1988; or
14
(iii) the Corporations Act 2001; or
15
(iv) the Northern Territory (Self-Government) Act 1978;
16
(i) an officer or employee of a Commonwealth authority;
17
(j) an individual who is:
18
(i) a contractor or subcontractor of the Commonwealth or a
19
Commonwealth authority; or
20
(ii) an officer or employee of a contractor or subcontractor
21
of the Commonwealth or a Commonwealth authority; or
22
(iii) assigned to work for the Commonwealth or a
23
Commonwealth authority under a labour hire
24
arrangement;
25
(k) an individual (other than an official of a registered industrial
26
organisation) who exercises powers, or performs functions,
27
conferred on the person by or under a law of the
28
Commonwealth, other than:
29
(i) the Corporations (Aboriginal and Torres Strait
30
Islander) Act 2006; or
31
(ii) the Australian Capital Territory (Self-Government) Act
32
1988; or
33
(iii) the Corporations Act 2001; or
34
(iv) the Northern Territory (Self-Government) Act 1978; or
35
(v) a provision specified in the regulations;
36
Failing to protect children from, or report, child sexual abuse offences Schedule 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
5
(l) an individual who exercises powers, or performs functions,
1
conferred on the individual by or under a law in force in
2
Norfolk Island, the Territory of Christmas Island or the
3
Territory of Cocos (Keeling) Islands (whether the law is a
4
law of the Commonwealth or a law of the Territory
5
concerned).
6
State or Territory registrable child sex offence means an offence:
7
(a) that a person becomes, or may at any time have become, a
8
person whose name is entered on a child protection offender
9
register (however described) of a State or Territory for
10
committing; and
11
(b) in respect of which:
12
(i) a person under 18 was a victim or an intended victim; or
13
(ii) the offending involved child abuse material.
14
273B.2 Geographical jurisdiction
15
Section 15.2 (extended geographical jurisdiction--category B)
16
applies to each offence against this Division.
17
273B.3 Double jeopardy
18
If a person has been convicted or acquitted in a country outside
19
Australia of an offence against the law of that country in respect of
20
any conduct, the person cannot be convicted of an offence against
21
this Division in respect of that conduct.
22
Subdivision B--Offences relating to the protection of children
23
273B.4 Failing to protect child at risk of child sexual abuse offence
24
Failing to protect child at risk of child sexual abuse offence
25
(1) A person (the defendant) commits an offence if:
26
(a) the defendant is a Commonwealth officer; and
27
(b) there is another person aged under 18 (the child) under the
28
defendant's care, supervision or authority, in the defendant's
29
capacity as a Commonwealth officer; and
30
Schedule 1 Failing to protect children from, or report, child sexual abuse offences
6
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
(c) the defendant knows there is a substantial risk that a person
1
(the potential offender) will engage in conduct in relation to
2
the child; and
3
(d) such conduct, if engaged in, would constitute a child sexual
4
abuse offence; and
5
(e) the defendant, because of the defendant's position as a
6
Commonwealth officer, has the actual or effective
7
responsibility to reduce or remove the risk mentioned in
8
paragraph (c); and
9
(f) the defendant negligently fails to reduce or remove that risk.
10
Penalty: Imprisonment for 5 years.
11
Absolute liability
12
(2) Absolute liability applies to paragraph (1)(d).
13
Note:
For absolute liability, see section 6.2.
14
Certain matters not required to be proved
15
(3) Subsection (1) applies:
16
(a) whether or not the child can be identified as a specific
17
person; and
18
(b) whether or not the potential offender can be identified as a
19
specific person; and
20
(c) whether or not a child sexual abuse offence is or was actually
21
committed in relation to the child.
22
273B.5 Failing to report child sexual abuse offence
23
Offence based on reasonable belief
24
(1) A person (the defendant) commits an offence if:
25
(a) the defendant is a Commonwealth officer; and
26
(b) there is another person aged under 18 (the child) under the
27
care or supervision of the defendant, in the defendant's
28
capacity as a Commonwealth officer; and
29
(c) the defendant knows of information that would lead a
30
reasonable person to believe that a person (the potential
31
offender):
32
Failing to protect children from, or report, child sexual abuse offences Schedule 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
7
(i) has engaged in conduct in relation to the child; or
1
(ii) will engage in conduct in relation to the child; and
2
(d) such conduct, if engaged in, would constitute a child sexual
3
abuse offence; and
4
(e) the defendant fails to disclose the information, as soon as
5
practicable after coming to know it, to:
6
(i) the police force or police service of a State or Territory;
7
or
8
(ii) the Australian Federal Police.
9
Penalty: Imprisonment for 3 years.
10
Offence based on reasonable suspicion
11
(2) A person (the defendant) commits an offence if:
12
(a) the defendant is a Commonwealth officer; and
13
(b) there is another person aged under 18 (the child) under the
14
care or supervision of the defendant, in the defendant's
15
capacity as a Commonwealth officer; and
16
(c) the defendant knows of information that would lead a
17
reasonable person to suspect that a person (the potential
18
offender):
19
(i) has engaged in conduct in relation to the child; or
20
(ii) will engage in conduct in relation to the child; and
21
(d) such conduct, if engaged in, would constitute a child sexual
22
abuse offence; and
23
(e) the defendant fails to disclose the information, as soon as
24
practicable after coming to know it, to:
25
(i) the police force or police service of a State or Territory;
26
or
27
(ii) the Australian Federal Police.
28
Penalty: Imprisonment for 2 years.
29
Absolute liability
30
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).
31
Note:
For absolute liability, see section 6.2.
32
Schedule 1 Failing to protect children from, or report, child sexual abuse offences
8
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
Defences
1
(4) Subsection (1) or (2) does not apply if:
2
(a) the defendant reasonably believes that the information is
3
already known:
4
(i) to the police force or police service of a State or
5
Territory; or
6
(ii) to the Australian Federal Police; or
7
(iii) to a person or body to which disclosure of such
8
information is required by a scheme established under,
9
or for the purposes of, a law of a State or Territory, or of
10
a foreign country (or part of a foreign country); or
11
(b) the defendant has disclosed the information to a person or
12
body for the purposes of a scheme mentioned in
13
subparagraph (a)(iii); or
14
(c) the defendant reasonably believes that the disclosure of the
15
information would put at risk the safety of any person, other
16
than the potential offender; or
17
(d) the information is in the public domain.
18
Note:
A defendant bears an evidential burden in relation to a matter in this
19
subsection: see subsection 13.3(3).
20
(5) An individual is not excused from failing to disclose information as
21
mentioned in paragraph (1)(e) or (2)(e) on the ground that
22
disclosing the information might tend to incriminate the individual
23
or otherwise expose the individual to a penalty or other liability.
24
Note:
For the admissibility in evidence of such information if disclosed in
25
the course of protected conduct, and any information obtained as an
26
indirect consequence, see subsections 273B.9(10) and (11).
27
Certain matters not required to be proved
28
(6) Subsection (1) or (2) applies:
29
(a) whether or not the child can be identified as a specific
30
person; and
31
(b) whether or not any person actually believes or suspects the
32
matter mentioned in paragraph (1)(c) or (2)(c); and
33
(c) whether or not the potential offender can be identified as a
34
specific person; and
35
Failing to protect children from, or report, child sexual abuse offences Schedule 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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9
(d) whether or not a child sexual abuse offence is or was actually
1
committed in relation to the child.
2
Alternative verdict
3
(7) If, on a trial of a person for an offence against subsection (1), the
4
trier of fact:
5
(a) is not satisfied that the person is guilty of the offence against
6
that subsection; and
7
(b) is satisfied beyond reasonable doubt that the person is guilty
8
of an offence against subsection (2);
9
it may find the person not guilty of the offence against
10
subsection (1) but guilty of the offence against subsection (2).
11
(8) Subsection (7) only applies if the person has been accorded
12
procedural fairness in relation to the finding of guilt for the offence
13
against subsection (2).
14
Subdivision C--Rules about conduct of trials
15
273B.6 Consent to commence proceedings
16
(1) Proceedings for an offence against this Division must not be
17
commenced without the consent of the Attorney-General.
18
(2) However, a person may be arrested for, charged with, or remanded
19
in custody or on bail in connection with, such an offence before the
20
necessary consent has been given.
21
273B.7 Evidence relating to a person's age
22
(1) In determining for the purposes of this Division how old a person
23
is or was at a particular time, the trier of fact may have regard to
24
any of the following matters:
25
(a) the person's appearance;
26
(b) medical or other scientific opinion;
27
(c) a document that is or appears to be an official or medical
28
record from a country outside Australia;
29
(d) a document that is or appears to be a copy of such a record.
30
Schedule 1 Failing to protect children from, or report, child sexual abuse offences
10
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
(2) Subsection (1) does not make any other kind of evidence
1
inadmissible, and does not affect a prosecutor's duty to do all the
2
prosecutor can to adduce the best possible evidence for
3
determining the question.
4
(3) If, on a trial by jury for an offence against this Division, regard
5
may be had to a matter because of subsection (1), the court must
6
warn the jury that it must be satisfied beyond reasonable doubt in
7
determining the question.
8
Subdivision D--Relationship with other laws
9
273B.8 Relationship with State and Territory laws
10
This Division applies to the exclusion of a law, or a provision of a
11
law, of a State or Territory that has the effect of making a person
12
liable to be prosecuted for an offence against any law for failing to:
13
(a) reduce or remove a risk of a child being subjected to conduct
14
constituting a child sexual abuse offence; or
15
(b) disclose to a police force or a police service information
16
relating to whether a person has engaged, or will engage, in
17
conduct constituting a child sexual abuse offence;
18
to the extent that the law or provision would otherwise apply in
19
relation to conduct in which the person engages in the person's
20
capacity as a Commonwealth officer.
21
273B.9 Protection from other laws etc. for complying with this
22
Division
23
Scope
24
(1) A person engages in protected conduct if the person:
25
(a) engages in conduct in avoidance, or purported avoidance, of
26
liability for an offence against this Division; and
27
(b) the conduct is genuine and proportionate for that purpose.
28
(2) This section does not apply to liability in any civil, criminal or
29
administrative proceedings (including disciplinary proceedings)
30
(relevant proceedings) for knowingly making a statement that is
31
false or misleading.
32
Failing to protect children from, or report, child sexual abuse offences Schedule 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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11
(3) Without limiting subsection (2), this section does not apply to
1
liability for an offence against any of the following provisions:
2
(a) section 137.1 (false or misleading information);
3
(b) section 137.2 (false or misleading documents);
4
(c) section 144.1 (forgery);
5
(d) section 145.1 (using forged document).
6
(4) This section does not prevent a person from being liable in any
7
relevant proceedings for conduct of the person that is revealed by a
8
disclosure of information.
9
Protection against liability for engaging in protected conduct
10
(5) If a person engages in protected conduct:
11
(a) the person is not subject to any liability in relevant
12
proceedings for engaging in the protected conduct; and
13
(b) no contractual or other remedy may be enforced, and no
14
contractual or other right may be exercised, against the
15
person on the basis of the protected conduct being engaged
16
in; and
17
(c) the person is not to be considered to have breached any
18
professional ethics in respect of the protected conduct.
19
(6) Professional ethics includes the following (without limitation):
20
(a) rules of professional conduct;
21
(b) rules of professional etiquette;
22
(c) a code of ethics;
23
(d) standards of professional conduct.
24
(7) Without limiting subsection (5):
25
(a) if the person engages in protected conduct by disclosing
26
information, the person:
27
(i) has qualified privilege in proceedings for defamation
28
relating to the disclosure; and
29
(ii) is not liable to an action for defamation at the suit of
30
another person relating to the disclosure; and
31
(b) a contract to which the person is a party may not be
32
terminated on the basis that the protected conduct constitutes
33
a breach of the contract.
34
Schedule 1 Failing to protect children from, or report, child sexual abuse offences
12
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
(8) Paragraphs (5)(a) and (7)(a) do not affect any other right, privilege
1
or immunity the person has as a defendant in proceedings, or an
2
action, for defamation.
3
(9) Without limiting paragraphs (5)(b) and (7)(b), if a court is satisfied
4
that:
5
(a) a person (the employee) is employed in a particular position
6
under a contract of employment with another person (the
7
employer); and
8
(b) the employee engages in protected conduct; and
9
(c) the employer purports to terminate the contract of
10
employment on the basis of the person engaging in protected
11
conduct being engaged in;
12
the court may:
13
(d) order that the employee be reinstated in that position or a
14
position at a comparable level; or
15
(e) order the employer to pay the employee an amount instead of
16
reinstating the employee, if the court considers it appropriate
17
to make the order.
18
Admissibility of evidence
19
(10) If an individual engages in protected conduct by disclosing
20
information, the information is not admissible in evidence against
21
the individual in relation to liability in any relevant proceedings.
22
(11) To avoid doubt, this section does not affect the admissibility of
23
evidence in any relevant proceedings of any information obtained
24
as an indirect consequence of a disclosure of information that
25
constitutes protected conduct.
26
4 At the end of section 279.1 of the Criminal Code
27
Add:
28
; (e) Division 273B (protection of children).
29
5 Application
30
Subparagraphs 273B.5(1)(c)(i) and (2)(c)(i) of the Criminal Code, as
31
inserted by this Schedule, apply in relation to conduct engaged in on or
32
after the commencement of this item.
33
Possession of child-like sex dolls etc. Schedule 2
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
13
Schedule 2--Possession of child-like sex
1
dolls etc.
2
3
Crimes Act 1914
4
1 Subsection 3(1) (after subparagraph (a)(ii) of the definition
5
of Commonwealth child sex offence)
6
Insert:
7
(iia) Division 273A (Possession of child-like sex dolls etc.);
8
2 After paragraph 15GE(3)(a)
9
Insert:
10
(aa) Division 273A (Possession of child-like sex dolls etc.);
11
Criminal Code Act 1995
12
3 After paragraph 5(2)(l)
13
Insert:
14
(la) Division 273A (possession of child-like sex dolls etc.);
15
4 After Division 273 of the Criminal Code
16
Insert:
17
Division 273A--Possession of child-like sex dolls etc.
18
273A.1 Possession of child-like sex dolls etc.
19
A person commits an offence if:
20
(a) the person possesses a doll or other object; and
21
(b) the doll or other object resembles:
22
(i) a person who is, or appears to be, under 18 years of age;
23
or
24
(ii) a part of the body of such a person; and
25
(c) a reasonable person would consider it likely that the doll or
26
other object is intended to be used by a person to simulate
27
sexual intercourse.
28
Schedule 2 Possession of child-like sex dolls etc.
14
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
Penalty: Imprisonment for 15 years.
1
273A.2 Defences
2
(1) A person is not criminally responsible for an offence against this
3
Division because of engaging in particular conduct if the conduct:
4
(a) is of public benefit; and
5
(b) does not extend beyond what is of public benefit.
6
In determining whether the person is, under this subsection, not
7
criminally responsible for the offence, the question whether the
8
conduct is of public benefit is a question of fact and the person's
9
motives in engaging in the conduct are irrelevant.
10
Note:
A defendant bears an evidential burden in relation to the matter in this
11
subsection: see subsection 13.3(3).
12
(2) For the purposes of subsection (1), conduct is of public benefit if,
13
and only if, the conduct is necessary for or of assistance in:
14
(a) enforcing a law of the Commonwealth, a State or a Territory;
15
or
16
(b) monitoring compliance with, or investigating a contravention
17
of, a law of the Commonwealth, a State or a Territory; or
18
(c) the administration of justice; or
19
(d) conducting scientific, medical or educational research that
20
has been approved by the AFP Minister in writing for the
21
purposes of this section.
22
(3) A person is not criminally responsible for an offence against this
23
Division if:
24
(a) the person is, at the time of the offence, a law enforcement
25
officer, or an intelligence or security officer, acting in the
26
course of the officer's duties; and
27
(b) the conduct of the person is reasonable in the circumstances
28
for the purpose of performing that duty.
29
Note:
A defendant bears an evidential burden in relation to the matter in this
30
subsection: see subsection 13.3(3).
31
(4) An expression used in this section that is defined in Part 10.6 has
32
the same meaning in this section as it has in that Part.
33
Note:
These expressions include AFP Minister, intelligence or security
34
officer and law enforcement officer.
35
Possession of child-like sex dolls etc. Schedule 2
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
15
273A.3 Saving of other laws
1
This Division is not intended to exclude or limit the operation of
2
any other law of the Commonwealth or any law of a State or
3
Territory.
4
5 Application provision
5
Section 273A.1 of the Criminal Code, as in force on and after the
6
commencement of this item, applies in relation to a doll or other object
7
possessed on or after that commencement (whether the doll or other
8
object was obtained before, on or after that commencement).
9
6 Section 473.1 of the Criminal Code (at the end of the
10
definition of child abuse material)
11
Add:
12
; or (g) material that is a doll or other object that resembles:
13
(i) a person who is, or appears to be, under 18 years of age;
14
or
15
(ii) a part of the body of such a person;
16
if a reasonable person would consider it likely that the
17
material is intended to be used by a person to simulate sexual
18
intercourse.
19
Customs Act 1901
20
7 At the end of subsection 233BAB(4)
21
Add:
22
; or (g) that is a doll or other object that resembles:
23
(i) a person who is, or appears to be, under 18 years of age;
24
or
25
(ii) a part of the body of such a person;
26
if a reasonable person would consider it likely that the doll or
27
other object is intended to be used by a person to simulate
28
sexual intercourse (within the meaning of the Criminal
29
Code).
30
Schedule 2 Possession of child-like sex dolls etc.
16
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
Surveillance Devices Act 2004
1
8 Subparagraphs 30(1)(a)(viii) and (1A)(a)(iv)
2
Omit "or 273", substitute ", 273 or 273A".
3
Telecommunications (Interception and Access) Act 1979
4
9 Paragraph 5D(3B)(a)
5
Omit "or 273", substitute ", 273 or 273A".
6
Possession or control of child abuse material obtained or accessed using a carriage
service Schedule 3
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
17
Schedule 3--Possession or control of child
1
abuse material obtained or accessed
2
using a carriage service
3
4
Criminal Code Act 1995
5
1 After section 474.22 of the Criminal Code
6
Insert:
7
474.22A Possessing or controlling child abuse material obtained or
8
accessed using a carriage service
9
(1) A person commits an offence if:
10
(a) the person has possession or control of material; and
11
(b) the material is in the form of data held in a computer or
12
contained in a data storage device; and
13
(c) the person used a carriage service to obtain or access the
14
material; and
15
(d) the material is child abuse material.
16
Penalty: Imprisonment for 15 years.
17
(2) Absolute liability applies to paragraph (1)(c).
18
Note:
For absolute liability, see section 6.2.
19
(3) If the prosecution proves beyond reasonable doubt the matters
20
mentioned in paragraphs (1)(a), (b) and (d), then it is presumed,
21
unless the person proves to the contrary, that the person:
22
(a) obtained or accessed the material; and
23
(b) used a carriage service to obtain or access the material.
24
Note:
A defendant bears a legal burden in relation to the matters in this
25
subsection: see section 13.4.
26
2 Subsections 474.24(1), (3) and (4) of the Criminal Code
27
Omit "474.22 (using a carriage service for child abuse material) or
28
474.23 (possessing etc. child abuse material for use through a carriage
29
service)", substitute "474.22, 474.22A or 474.23".
30
Schedule 3 Possession or control of child abuse material obtained or accessed using a
carriage service
18
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
3 After subparagraph 474.24A(1)(a)(iii) of the Criminal Code
1
Insert:
2
(iiia) section 474.22A (possessing or controlling child abuse
3
material obtained or accessed using a carriage service);
4
4 Subsections 474.24A(2), (3), (5) and (7) of the Criminal Code
5
After "474.22", insert ", 474.22A".
6
5 Paragraph 474.24B(b) of the Criminal Code
7
After "474.22", insert ", 474.22A".
8
Persistent sexual abuse of child outside Australia Schedule 4
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
19
Schedule 4--Persistent sexual abuse of child
1
outside Australia
2
3
Criminal Code Act 1995
4
1 Subsection 272.11(1) of the Criminal Code
5
Omit "3 or more", substitute "2 or more".
6
2 Paragraph 272.11(7)(a) of the Criminal Code
7
Omit "3 separate occasions", substitute "2 separate occasions".
8
3 Paragraph 272.11(7)(b) of the Criminal Code
9
Omit "3 such occasions", substitute "2 such occasions".
10
4 Paragraph 272.11(7)(c) of the Criminal Code
11
Repeal the paragraph, substitute:
12
(c) if the trier of fact is a jury and more than 2 such occasions are
13
relied on as evidence of the commission of an offence against
14
this section--all the members of the jury must be so satisfied
15
about the same 2 occasions.
16
5 Application of amendments
17
Section 272.11 of the Criminal Code, as amended by this Schedule,
18
applies in relation to a charge for an offence against that section that
19
specifies a period under subsection (6) of that section starting on or after
20
the commencement of this item.
21
Schedule 5 Forced marriage
20
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
Schedule 5--Forced marriage
1
2
Criminal Code Act 1995
3
1 Subsection 270.7A(1) of the Criminal Code
4
Repeal the subsection, substitute:
5
(1) A marriage is a forced marriage if:
6
(a) either party to the marriage (the victim) entered into the
7
marriage without freely and fully consenting:
8
(i) because of the use of coercion, threat or deception; or
9
(ii) because the victim was incapable of understanding the
10
nature and effect of the marriage ceremony; or
11
(b) when the marriage was entered into, either party to the
12
marriage (the victim) was under 16.
13
2 Subsection 270.7A(3) of the Criminal Code
14
Omit "Paragraph (1)(a)", substitute "Subparagraph (1)(a)(i)".
15
3 Subsection 270.7A(4) of the Criminal Code
16
Repeal the subsection (including the note).
17
4 At the end of section 270.7B of the Criminal Code
18
Add:
19
Consent to commence proceedings if defendant under 18
20
(5) Proceedings for an offence against subsection (1) or (2) must not
21
be commenced without the consent of the Attorney-General if the
22
defendant was under 18 at the time the defendant allegedly
23
engaged in the conduct constituting the offence.
24
(6) However, a person may be arrested for, charged with or remanded
25
in custody or on bail in connection with, such an offence before the
26
necessary consent has been given.
27
5 At the end of subsection 270.8(1) of the Criminal Code
28
Add:
29
Forced marriage Schedule 5
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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21
Note:
In the case of a slavery-like offence against section 270.7B involving
1
a marriage that is a forced marriage because the victim was under 16
2
when the marriage was entered into (see paragraph 270.7A(1)(b)), the
3
offence is also an aggravated offence because of paragraph (a) of this
4
subsection.
5
Schedule 6 Restricted defence of marriage for child sex offences
22
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
Schedule 6--Restricted defence of marriage
1
for child sex offences
2
3
Criminal Code Act 1995
4
1 Section 272.17 of the Criminal Code
5
Repeal the section, substitute:
6
272.17 Defence based on valid and genuine marriage
7
It is a defence to a prosecution for an offence against
8
subsection 272.12(1) or 272.13(1) if the defendant proves that:
9
(a) at the time of the sexual intercourse or sexual activity, there
10
existed between the defendant and the young person a
11
marriage that was valid, or recognised as valid, under the law
12
of:
13
(i) the place where the marriage was solemnised; or
14
(ii) the place where the sexual intercourse or sexual activity
15
is alleged to have taken place; or
16
(iii) the place of the defendant's residence or domicile; and
17
(b) when the marriage was solemnised:
18
(i) the marriage was genuine; and
19
(ii) the young person had attained the age of 16 years.
20
Note 1:
A defendant bears a legal burden in relation to the matter in this
21
section: see section 13.4.
22
Note 2:
Subsection 272.12(1) deals with engaging in sexual intercourse with a
23
young person outside Australia. Subsection 272.13(1) deals with
24
engaging in sexual activity (other than sexual intercourse) with a
25
young person outside Australia. Both offences apply to defendants in a
26
position of trust or authority in relation to the young person
27
concerned.
28
Restricted defence of marriage for child sex offences Schedule 6
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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23
2 Saving provision
1
Despite the repeal of section 272.17 of the Criminal Code by this
2
Schedule, that section, as in force immediately before the
3
commencement of this item, continues to apply on and after that
4
commencement in relation to offences alleged to have been committed
5
before that commencement.
6
Schedule 7 Expanding the meaning of child abuse material
Part 1 Amendments
24
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
Schedule 7--Expanding the meaning of child
1
abuse material
2
Part 1--Amendments
3
Crimes Act 1914
4
1 Subsection 3(1) (definition of child pornography material)
5
Repeal the definition.
6
2 Subsection 3(1) (subparagraph (a)(ii) of the definition of
7
Commonwealth child sex offence)
8
Omit "child pornography material or".
9
3 Subsection 3(1) (subparagraphs (a)(iii) and (iv) of the
10
definition of Commonwealth child sex offence)
11
Omit "child pornography material,".
12
4 Subsection 3(1) (note to the definition of Commonwealth
13
child sex offence)
14
Repeal the note.
15
5 Paragraph 15GE(2)(w)
16
Repeal the paragraph, substitute:
17
(w) dealings in child abuse material;
18
6 Paragraphs 15GE(3)(b) and (d)
19
Omit "child pornography material or".
20
7 Paragraph 15Y(1)(cac)
21
Omit "child pornography material or".
22
8 Part IE (heading)
23
Repeal the heading, substitute:
24
Expanding the meaning of child abuse material Schedule 7
Amendments Part 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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25
Part IE--Forfeiture of child abuse material
1
9 Paragraph 23ZA(b)
2
Repeal the paragraph.
3
10 Paragraph 23ZA(c)
4
Omit "or child pornography material".
5
11 Subparagraph 23ZC(1)(c)(ii)
6
Omit "or child pornography material".
7
Criminal Code Act 1995
8
12 Paragraph 5(2)(l)
9
Omit "child pornography material or".
10
13 Division 273 of the Criminal Code (heading)
11
Repeal the heading, substitute:
12
Division 273--Offences involving child abuse material
13
outside Australia
14
14 Subsection 273.1(1) of the Criminal Code (note)
15
Repeal the note, substitute:
16
Note:
One of those expressions is child abuse material.
17
15 Subdivision B of Division 273 of the Criminal Code
18
(heading)
19
Repeal the heading, substitute:
20
Subdivision B--Offences committed overseas involving child
21
abuse material
22
16 Section 273.5 of the Criminal Code
23
Repeal the section.
24
Schedule 7 Expanding the meaning of child abuse material
Part 1 Amendments
26
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
17 Paragraph 273.7(1)(a) of the Criminal Code
1
Repeal the paragraph, substitute:
2
(a) the person commits an offence against section 273.6
3
(possessing etc. child abuse material outside Australia) on 3
4
or more separate occasions; and
5
18 Subsections 273.7(2), (3), (5) and (7) of the Criminal Code
6
Omit "273.5 or".
7
19 Section 273.8 of the Criminal Code
8
Omit "273.5 or" (wherever occurring).
9
20 Subsections 273.9(1), (4) and (5) of the Criminal Code
10
Omit "273.5 or".
11
21 Paragraph 279.1(d) of the Criminal Code
12
Omit "child pornography material or".
13
22 Subsection 470.4(1) of the Criminal Code (note)
14
Repeal the note, substitute:
15
Note:
One of those expressions is child abuse material.
16
23 Subdivision B of Division 471 of the Criminal Code
17
(heading)
18
Repeal the heading, substitute:
19
Subdivision B--Offences relating to use of postal or similar
20
service for child abuse material
21
24 Sections 471.16, 471.17 and 471.18 of the Criminal Code
22
Repeal the sections.
23
25 Paragraph 471.22(1)(a) of the Criminal Code
24
Omit "one or more", substitute "either".
25
26 Subparagraphs 471.22(1)(a)(i) and (ii) of the Criminal Code
26
Repeal the subparagraphs.
27
Expanding the meaning of child abuse material Schedule 7
Amendments Part 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
27
27 Subsections 471.22(2), (3), (5) and (7) of the Criminal Code
1
Omit "471.16, 471.17,".
2
28 Paragraph 471.23(b) of the Criminal Code
3
Omit "471.16, 471.17,".
4
29 Section 473.1 of the Criminal Code (at the end of the
5
definition of child abuse material)
6
Add:
7
; or (c) material that depicts a person, or a representation of a person,
8
who is, or appears to be, under 18 years of age and who:
9
(i) is engaged in, or appears to be engaged in, a sexual pose
10
or sexual activity (whether or not in the presence of
11
other persons); or
12
(ii) is in the presence of a person who is engaged in, or
13
appears to be engaged in, a sexual pose or sexual
14
activity;
15
and does this in a way that reasonable persons would regard
16
as being, in all the circumstances, offensive; or
17
(d) material the dominant characteristic of which is the depiction,
18
for a sexual purpose, of:
19
(i) a sexual organ or the anal region of a person who is, or
20
appears to be, under 18 years of age; or
21
(ii) a representation of such a sexual organ or anal region;
22
or
23
(iii) the breasts, or a representation of the breasts, of a
24
female person who is, or appears to be, under 18 years
25
of age;
26
in a way that reasonable persons would regard as being, in all
27
the circumstances, offensive; or
28
(e) material that describes a person who is, or is implied to be,
29
under 18 years of age and who:
30
(i) is engaged in, or is implied to be engaged in, a sexual
31
pose or sexual activity (whether or not in the presence
32
of other persons); or
33
(ii) is in the presence of a person who is engaged in, or is
34
implied to be engaged in, a sexual pose or sexual
35
activity;
36
Schedule 7 Expanding the meaning of child abuse material
Part 1 Amendments
28
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
and does this in a way that reasonable persons would regard
1
as being, in all the circumstances, offensive; or
2
(f) material that describes:
3
(i) a sexual organ or the anal region of a person who is, or
4
is implied to be, under 18 years of age; or
5
(ii) the breasts of a female person who is, or is implied to
6
be, under 18 years of age;
7
and does this in a way that reasonable persons would regard
8
as being, in all the circumstances, offensive.
9
30 Section 473.1 of the Criminal Code (definition of child
10
pornography material)
11
Repeal the definition.
12
31 Section 473.1 of the Criminal Code (note to the definition
13
of private sexual material)
14
Repeal the note, substitute:
15
Note:
For material that relates to a person who is, or appears to be, under 18
16
years of age, see:
17
(a) the definition of child abuse material; and
18
(b) the offences relating to child abuse material in Subdivision D.
19
32 Subdivision D of Division 474 of the Criminal Code
20
(heading)
21
Repeal the heading, substitute:
22
Subdivision D--Offences relating to use of carriage service for
23
child abuse material
24
33 Sections 474.19, 474.20 and 474.21 of the Criminal Code
25
Repeal the sections.
26
34 Subparagraphs 474.24A(1)(a)(i) and (ii) of the Criminal
27
Code
28
Repeal the subparagraphs.
29
Expanding the meaning of child abuse material Schedule 7
Amendments Part 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
29
35 Subsections 474.24A(2), (3), (5) and (7) of the Criminal
1
Code
2
Omit "474.19, 474.20,".
3
36 Paragraph 474.24B(b) of the Criminal Code
4
Omit "474.19, 474.20,".
5
37 Paragraph 474.25(b) of the Criminal Code
6
Repeal the paragraph, substitute:
7
(b) is aware that the service provided by the person can be used
8
to access particular material that the person has reasonable
9
grounds to believe is child abuse material; and
10
Customs Act 1901
11
38 Paragraph 233BAB(1)(h)
12
Omit "child pornography or of".
13
39 Subsection 233BAB(3)
14
Repeal the subsection.
15
40 At the end of subsection 233BAB(4)
16
Add:
17
; or (c) that depicts a person, or a representation of a person, who is,
18
or appears to be, under 18 years of age and who:
19
(i) is engaged in, or appears to be engaged in, a sexual pose
20
or sexual activity (whether or not in the presence of
21
other persons); or
22
(ii) is in the presence of a person who is engaged in, or
23
appears to be engaged in, a sexual pose or sexual
24
activity;
25
and does this in a way that reasonable persons would regard
26
as being, in all the circumstances, offensive; or
27
(d) the dominant characteristic of which is the depiction, for a
28
sexual purpose, of:
29
(i) a sexual organ or the anal region of a person who is, or
30
appears to be, under 18 years of age; or
31
Schedule 7 Expanding the meaning of child abuse material
Part 1 Amendments
30
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
No. , 2019
(ii) a representation of such a sexual organ or anal region;
1
or
2
(iii) the breasts, or a representation of the breasts, of a
3
female person who is, or appears to be, under 18 years
4
of age;
5
in a way that reasonable persons would regard as being, in all
6
the circumstances, offensive; or
7
(e) that describes a person who is, or is implied to be, under 18
8
years of age and who:
9
(i) is engaged in, or is implied to be engaged in, a sexual
10
pose or sexual activity (whether or not in the presence
11
of other persons); or
12
(ii) is in the presence of a person who is engaged in, or is
13
implied to be engaged in, a sexual pose or sexual
14
activity;
15
and does this in a way that reasonable persons would regard
16
as being, in all the circumstances, offensive; or
17
(f) that describes:
18
(i) a sexual organ or the anal region of a person who is, or
19
is implied to be, under 18 years of age; or
20
(ii) the breasts of a female person who is, or is implied to
21
be, under 18 years of age;
22
and does this in a way that reasonable persons would regard
23
as being, in all the circumstances, offensive.
24
41 Subsection 233BAB(4A)
25
Omit "subsections (3) and (4)", substitute "subsection (4)".
26
Telecommunications (Interception and Access) Act 1979
27
42 Subsection 5D(3B) (heading)
28
Repeal the heading, substitute:
29
Expanding the meaning of child abuse material Schedule 7
Amendments Part 1
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
2019
31
Sexual offences against children and offences involving child abuse
1
material or harm to children
2
43 Subparagraph 5D(3B)(b)(i)
3
Omit "child pornography", substitute "child abuse material (within the
4
meaning of Part 10.6 of the Criminal Code)".
5
44 Subparagraph 5D(3B)(b)(ii)
6
Omit "child pornography", substitute "such material".
7
Schedule 7 Expanding the meaning of child abuse material
Part 2 Application and transitional provisions
32
Combatting Child Sexual Exploitation Legislation Amendment Bill
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No. , 2019
Part 2--Application and transitional provisions
1
45 Controlled operations
2
Paragraph 15GE(2)(w) of the Crimes Act 1914, as in force on and after
3
the commencement of this item, applies in relation to a controlled
4
operation authorised on or after that commencement (whether the
5
offence was committed before, on or after that commencement).
6
46 Serious offences
--Telecommunications (Interception and
7
Access) Act 1979
8
Subsection 5D(3B) of the Telecommunications (Interception and
9
Access) Act 1979, as in force on and after the commencement of this
10
item, applies in relation to an offence committed on or after that
11
commencement.
12
47 Aggravated offences involving conduct on 3 or more
13
occasions and 2 or more people
14
The following table has effect:
15
16
Transitional--aggravated offences involving conduct on 3 or more occasions
and 2 or more people
Item
This provision of the
Criminal Code has
effect at and after the
time this item
commences ...
as if a reference in the
provision to this
provision of that Code
...
included a reference
to this provision of
that Code, as in force
immediately before
that time ...
1
sections 273.7 and
273.8
section 273.6
section 273.5
2
sections 471.22 and
471.23
section 471.19
section 471.16
3
sections 471.22 and
471.23
section 471.20
section 471.17
4
sections 474.24A and
474.24B
section 474.22
section 474.19
5
sections 474.24A and
474.24B
section 474.23
section 474.20
Expanding the meaning of child abuse material Schedule 7
Application and transitional provisions Part 2
No. , 2019
Combatting Child Sexual Exploitation Legislation Amendment Bill
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33
48 Section 7 of the Acts Interpretation Act 1901 not limited
1
This Part does not limit the operation of section 7 of the Acts
2
Interpretation Act 1901.
3