House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP)

Schedule 4 - Strengthening child sex offences

Part 1 - Main amendments

Criminal Code Act 1995

Item 1 - After paragraph 272.5(3)(b) of the Criminal Code

33. This item provides that section 11.1 of the Criminal Code (attempt) does not apply to the new offence of "grooming" a person to make it easier to engage in sexual activity with a child outside Australia.

Item 2 - Subsection 272.9(1) of the Criminal Code (before the penalty)

34. Item 2 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

Item 3 - Section 272.10 of the Criminal Code (heading)

35. Item 3 repeals and substitutes the heading of the aggravated offence to cover sexual intercourse or other sexual activity with a child outside Australia.

Item 4 - Paragraph 272.10(1)(b) of the Criminal Code

36. Item 4 introduces new aggravated offences that apply to the underlying offences of sexual intercourse with a child outside Australia (section 272.8) and engaging in sexual activity with a child outside Australia (section 272.9). The item repeals existing paragraph 272.10(1)(b) and replaces it with new paragraph (b).

37. Section 272.10 criminalises a range of activities that aggravate the offences in sections 272.8 and 272.9 of the Criminal Code. Under new paragraph (b), it will be an aggravated offence for a person to commit an offence against sections 272.8 and 272.9 where:

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the child has a mental impairment (existing subparagraph 272.10(1)(b)(i));

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the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person (existing subparagraph 272.10(1)(b)(ii));

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the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 272.10(1)(b)(iii)); or

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the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 272.10(1)(b)(iv)).

38. The new aggravated offences in subparagraphs 272.10(1)(b)(iii) and 272.10(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. These offences warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability.

39. Subparagraph 272.10(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual intercourse or activity referred to in sections 272.8 or 272.9 (the underlying offences). This may include, for example, where the offender causes the child to be unconscious when committing the underlying offences or causes the child to be disfigured or dismembered.

40. Subparagraph 272.10(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in the underlying offences. 'Physical harm' is limited to the definition of 'physical harm' in the Criminal Code, which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances.

41. The inclusion of the reference to 'in connection with' is intended to cover cruel, inhuman or degrading treatment that occurs both before and / or after the underlying offences, and that is directly linked to the underlying offences.

42. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a result. Under section 5.4 of the Criminal Code, a person is 'reckless' with respect to a result if he or she is aware of a substantial risk that the result will occur, and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

43. Accordingly, to establish an offence under subparagraph 272.10(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:

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the person committed the underlying offence, and

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the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and

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the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and

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having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity.

44. To establish an offence under subparagraph 272.10(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:

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the person committed the underlying offence, and

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the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and

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the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and

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having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity.

45. These new aggravated offences will be punishable by a maximum penalty of life imprisonment. Item 5 of Schedule 5 increases the maximum penalty of the aggravated offences at section 272.10 to life imprisonment. This penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity.

Item 5 - Subsection 272.13(1) of the Criminal Code (before the penalty)

46. Item 5 inserts a note, for the avoidance of doubt, clarifying that the definition of engage in sexual activity in the Dictionary includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

Item 6 - After section 272.15 of the Criminal Code

47. This item inserts a new section 272.15A into the Criminal Code, criminalising the grooming of third parties to make it easier to procure persons under 16 years of age to engage in sexual activity overseas.

48. New section 272.15A is intended to complement the existing preparatory, procurement and "grooming" offences set out in sections 272.14, 272.15, 471.25, 474.25C, 474.26 and 474.27 of the Criminal Code.

49. The offence in subsection 272.15A(1) will address "grooming" where a person engages in conduct in relation to another person with the intention of making it easier to procure a child, who is, or who the person believes to be, under 16 years of age, to engage in sexual activity with the person or another person.

50. Paragraph 272.15A(1)(d) provides that the offence will apply when one or more of the following circumstances are met:

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the conduct occurs wholly or partly outside Australia

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the third party or the child (or both) were outside Australia when the conduct occurred, or

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the conduct occurred wholly in Australia and both the third party and the child were in Australia when the conduct occurred.

51. Paragraph 272.15A(1)(d) is intended to ensure that the offence applies regardless of where the conduct (that is, the "grooming") took place, provided the intention was to procure the child to engage in sexual activity outside Australia.

52. The reference to "engage in sexual activity" in paragraph 272.15A(1)(b) and subsection 272.15A(3) is not limited to sexual activity in "real life". The term "engage in sexual activity" is defined in the Dictionary to the Criminal Code and extends to an act that does not necessarily require physical contact. The definition of "engage in sexual activity" also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

53. The reference to "procure" in paragraph 272.15A(1)(b) includes encouraging, enticing, recruiting or inducing a child to engage in sexual activity. The term "procure" is defined in the Dictionary to the Criminal Code as including conduct where a person encourages, entices, recruits or induces a second person to engage in sexual activity.

54. Subsection 272.15A(2) clarifies that absolute liability applies to the physical element that the child referred to is under 16 years of age. Subsection 272.15A(2) also applies absolute liability to the physical elements set out in subparagraph 272.15A(1)(d) of where the conduct occurred and where the child and person were located at the time of the conduct. This means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to these elements. The impact of imposing absolute liability is balanced through the specific defences based on belief about age available under existing section 272.16 of the Criminal Code. This approach is consistent with existing "grooming" offences within the Criminal Code.

55. Subsection 272.15A(3) clarifies a person may be found guilty of an offence under section 272.15A even if it is impossible for the sexual activity referred to in paragraph 272.15A(1)(b) to have occurred.

56. Subsection 272.15A(4) makes it irrelevant for the purposes of an offence under subsection 272.15A(1) whether a fictitious person is represented to the person (the defendant) as a real person. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

57. Section 272.15A provides that the maximum penalty for an offence under this section is imprisonment for 15 years. This is consistent with the existing maximum penalty for the child sex offences in Part 10.5 of the Criminal Code of "procurement" (imprisonment for 15 years) and "grooming" (proposed maximum penalty of imprisonment for 15 years, as increased by Schedule 5 of this Bill). The proposed maximum penalty of 15 years' imprisonment is consistent with the serious nature of the conduct involved in this offence and the harm caused to victims.

58. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 272.15A. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under section 272.15A, even if their conduct does not constitute an offence in that country and the result of that conduct does not affect Australia.

Item 7 - Subsection 272.16(3) of the Criminal Code (heading)

59. This item revises the heading at subsection 272.16(3) of the Criminal Code.

Item 8 - Subsection 272.16(3) of the Criminal Code

60. Item 8 amends existing subsection 272.16(3) of the Criminal Code to provide that it will be a defence to a prosecution under new section 272.15A if the defendant can prove that, at the time the conduct occurred, he or she believed that the child was at least 16 years of age. This is consistent with the operation of existing offences of procuring a child to engage in sexual activity outside Australia and "grooming" a child to engage in sexual activity outside Australia under existing sections 272.14 and 272.15 of the Criminal Code.

Item 9 - After section 471.25 of the Criminal Code

61. This item inserts a new section 471.25A into the Criminal Code. This item inserts a new offence criminalising using postal or similar services to "groom" another person to make it easier to procure persons under 16 years of age for sexual activity.

62. New section 471.25A complements the existing procurement and "grooming" offences set out in sections 471.24 and 474.25 of the Criminal Code. Proposed section 471.25A contains three separate offences for the "grooming" of third parties.

63. The proposed offence in subsection 471.25A(1) will address "grooming" where an adult (sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for the sender to engage in sexual activity with a specific child. The sender must be at least 18 years of age, and the child must be (or the sender believed them to be) under 16 years of age.

64. The proposed offence in subsection 471.25A(2) will address "grooming" where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child. The participant must be (or the sender believed them to be) at least 18 years of age. The child must be (or the sender believed them to be) under 16 years of age.

65. The proposed offence in subsection 471.25A(3) will address "grooming" where an adult (the sender) causes an article to be carried by a postal or similar service to a person with the intention of making it easier for another person (the participant) to engage in sexual activity with a child, where the sexual activity is to take place in the presence of the sender or another person.

66. The reference to "engage in sexual activity" in paragraphs 471.25A(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in "real life". The definition of "engage in sexual activity" extends to an act that does not necessarily require physical contact. "Engage in sexual activity" also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

67. The reference to "procure" in paragraphs 471.25A(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. "Procure" is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in "consensual" sexual activity but also includes conduct where a sender may coerce a person into engaging in "non-consensual" activity.

68. Paragraphs 471.25A(1)(d), (2)(d), (3)(d) and subparagraph (3)(e)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions.

69. The proposed maximum penalty is imprisonment for 15 years for each offence under section 471.25A. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences in Part 10.5 of the Criminal Code of procurement (imprisonment 15 years) and "grooming" (imprisonment for 15 years as set out in items 12 and 13 of Schedule 5 of this Bill). The proposed maximum penalty of 15 years' imprisonment is consistent with the serious nature of this type of offending behaviour. 'Grooming' can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the child that is subject to the 'grooming' behaviour. The maximum penalty recognises the harm done to the victims of this offence.

70. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 471.25A. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

71. It will be a defence to a prosecution under this new offence if the defendant can prove that, at the time the article was carried via a postal or similar service, he or she believed that the recipient was at least 16 years of age. This ensures that the new offence only targets persons trying to make it easier to engage in sexual activity with a child under the age of 16.

Item 10 - Subsection 471.27(1) of the Criminal Code

72. This item amends the existing subsection 471.27(1) of the Criminal Code to insert "(other than section 471.25A)" into the subsection. The application of absolute liability will not apply to existing subsection 471.27(1).

Item 11 - After subsection 471.27(1) of the Criminal Code

73. This item introduces an additional subsection to section 471.27 (age-related provisions relating to offences against this Subdivision) for the application of absolute liability to the physical element of a recipient being under 16 years of age. This means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to that element. The impact of imposing absolute liability is balanced through the specific defence based on belief about age available under existing section 471.29. This approach is consistent with existing "grooming" offences within the Criminal Code.

Item 12 - Subsection 471.27(2) of the Criminal Code

74. This item includes new postal or similar service offences for the "grooming" of third parties under the existing absolute liability provisions concerning the age of the participant.

Item 13 - Subsections 471.27(3) and (4) of the Criminal Code

75. This item repeals the current subsections and substitutes a provision which combines those subsections. This provision, as much as its predecessor, impacts upon the evidentiary requirement to prove the sender's belief about the age of the person or, if relevant, the age of the other person who is to engage in sexual activity with the recipient, or is to be present during the sexual activity. As with the existing "grooming" provisions, ordinarily this could be a significant burden of proof for the prosecution to overcome. Accordingly, this provision in its redrafted form ensures that the prosecution can rely on representations made to a defendant (e.g. written exchanges from the recipient) relating to the age of the recipient or other person in discharging that burden. It is also intended that a defendant can introduce evidence that contradicts these types of representations made by the prosecution.

Item 14 - Subsection 471.28(1) of the Criminal Code

76. This item ensures a person may be found guilty of an offence for the "grooming" of third parties even if it is impossible for the sexual activity referred to in section 471.25A to have occurred.

Item 15 - Subsection 471.28(2) of the Criminal Code

77. Item 15 amends the heading of subsection 471.28(2) of the Criminal Code by repealing the heading and replacing it with a new heading: 'Fictitious persons'. This amendment is consequential to item 16 which inserts a new subsection 471.28(2A) into the Criminal Code after subsection 471.28(2).

78. New subsection 471.28(2A) makes it irrelevant for the purposes of an offence under 471.25A whether a fictitious person is represented to the sender as a real person. This item expands the heading from 'Fictitious recipient' to 'fictitious persons' to reflect that subsections 471.28(2) and 471.28(2A) together refer to fictitious persons who may not exclusively be recipients.

79. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

Item 16 - After subsection 471.28(2) of the Criminal Code

80. Item 16 applies subsection 471.28(2) to the operation of the offence for "grooming" of third parties under section 471.25A. Subsection 471.28(2) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 9 which inserts a new offence into the Criminal Code for using a postal or similar service to "groom" third parties.

Item 17 - Subsection 471.28(3) of the Criminal Code

81. This item applies subsection 471.28(3) of the Criminal Code to the offence for "grooming" of third parties under section 471.25A of the Criminal Code. Section 471.28(3) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code. This amendment is consequential to item 9 which inserts a new offence into the Criminal Code for using a postal or similar service to "groom" third parties.

Items 18, 19 and 20 - Subsection 471.29(1) of the Criminal Code

82. These items clarify that it is a defence to a prosecution for an offence against proposed section 471.25A if the defendant proves that, at the time he or she caused the article to be carried, the defendant was of the belief that the child was at least 16 years of age. This ensures that the new offence for the "grooming" of third parties only targets offenders who are trying to make it easier to engage in sexual activity with a child under the age of 16.

83. The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

84. While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant's belief as to the age of the child is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other "grooming" offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 471.25A relating to the age of the child (item 11).

85. It is important to note that an offence will still be committed where the defendant believes the child to be under the age of 16 years, regardless of the actual circumstances of the offending. This is necessary to accommodate a standard investigatory technique where a law enforcement officer assumes the identity of a fictitious child to apprehend a potential offender before they have the opportunity to sexually abuse a real child.

Items 21 and 22 - Subsection 471.29(2) of the Criminal Code

86. These items ensure that the existing defence under subsection 471.29(2) of the Criminal Code applies. That defence concerns the belief that the participant was under 18 years of age when the person caused the article to be carried. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 9 which inserts a new offence for the "grooming" of third parties into the Criminal Code.

87. The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

88. While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant's belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other "grooming" offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 471.25A relating to the age of the participant (item 12).

Item 23 - Subsection 471.29(3) of the Criminal Code

89. This item will ensure that, in determining whether the defendant had the required belief, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances. This subsection is included to prevent a defendant avoiding criminal liability simply by asserting a belief that the child was 16 or older at the time of the offence where there is no reasonable basis for that belief.

Item 24 - After section 474.23 of the Criminal Code

90. Item 24 will insert new section 474.23A to criminalise the provision of an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code.

91. The new offence will help to address the ever increasing role played by electronic services (such as online fora, websites and other storage and exchange platforms) in enabling the exchange of child abuse material. These services, which are often hosted on the Dark Web, are particularly abhorrent as they facilitate the offending of a large, sometimes global, audience and promote the production of new child abuse material. In particular, there has been a rise in the number of websites that function for the sole purpose of facilitating the online distribution of child abuse material and encouraging discussion about child sexual abuse amongst its members.

92. The consequences of providing these electronic services cannot be overstated. This behaviour results in the establishment of sophisticated, elaborate and global criminal networks which perpetuate the demand for new and existing child abuse material. The electronic services often take advantage of anonymising technologies and encryption, giving criminals a safe online environment to access and share child abuse material and to reinforce and enable their offending behaviours.

93. This offence will also address a gap in the law which means that individuals cannot be prosecuted for the provision of electronic services to facilitate dealings with child abuse material unless it can be proven that they are also accessing child abuse material or encouraging others to do so. Where this cannot be proven, there is limited criminal recourse against the individual.

94. New subsection 474.23A(4) inserts a definition of electronic service into the Criminal Code. An electronic service means a service a purpose of which is to allow persons access to, or deliver, material by way of a carriage service. The reference to persons in the definition is read in accordance with paragraph 23(b) of the Acts Interpretation Act 1901 to also include a person in the singular. This definition is purposefully broad to capture a range of existing and future technologies, including hardware and software, which may be used by offenders to commit these crimes. Examples of electronic services include websites and chat fora, hosting services including cloud and web hosting, peer to peer sharing platforms and email distribution lists, as well as many others.

95. The offence does not require the offender to undertake conduct in relation to the electronic service using a carriage service. Instead, the definition of electronic service provides that the service in question must be able to be accessed or used to deliver content by means of a carriage service, whether at the time of the offending or in the future. This relates to the offender's intention that the electronic service will be used (by the offender or another person) to facilitate an offence contrary to sections 474.22 or 474.23, both of which include an element of undertaking the criminal behaviour using a carriage service.

96. The purposive definition of electronic service means that the service does not need to be operational or "live" at the time the offending takes place. Similarly, an offender may be found guilty of the offence even if committing an offence against sections 474.22 or 474.23 is impossible for any reason. Together, these factors ensure that the offence applies to a wide range of factual circumstances and allows law enforcement to intervene at an early stage in the offending timeline. The application of the definition for electronic service will mean that the presumption and absolute liability provisions in section 475.1B relating to the physical element of use of a carriage service are unnecessary in the context of the new offence and do not apply.

97. The inclusion of the carriage service requirement in the definition of electronic service provides the nexus between the new offence and the telecommunications head of legislative power in the Australian Constitution.

98. The physical element of this offence requires the offender to undertake conduct in relation to an electronic service. The range of conduct criminalised by this offence includes when the offender creates, develops, alters, maintains, controls, moderates, makes available, advertises or promotes an electronic service with the intention of facilitating dealings with child abuse material online. Examples of this conduct may include writing computer code, providing infrastructure to enable hosting of websites or moderating the content or use of a chat forum for the creation and sharing of child abuse material.

99. New subparagraph 474.23A(1)(a)(iv) also captures an offender (Person A) who assists another person (Person B) to do any of the conduct listed above with the intention of facilitating dealings with child abuse material online. Unlike the complicity and common purpose provision in section 11.2 of the Criminal Code, subparagraph 474.23A(1)(a)(iv) does not require that Person B also commits an offence against section 474.23A. An example of this would include:

Person A instructs Person B, an employee of a legitimate website development company, to create a web content management system. Person A intends for the website to be used to facilitate dealings with child abuse material. Person B does not know what the website will be used for. Person A is guilty of assisting Person B to create an electronic service with the intention that the service will be used to facilitate dealings with child abuse material. Person B creates an electronic service but without intending for it to be used in this way. Person B cannot be guilty of an offence against new section 474.23A.

100. Because new section 474.23A already envisages scenarios in which multiple people are involved in the offending, section 474.24A (Aggravated offence - offence involving conduct on 3 or more occasions and 2 or more people) does not apply to this offence.

101. The mental element of this offence requires the offender to undertake the requisite conduct in relation to the electronic service with the intention that the service will be used in committing, or facilitating the commission of, an offence against sections 474.22 or 474.23. The offence does not require the prosecution to prove that a person (being the offender or someone else) actually used the requisite electronic service to commit an offence contrary to sections 474.22 or 474.23.

102. Section 11.1 of the Criminal Code does not apply to this offence, meaning that a person cannot attempt to commit an offence against section 474.23A. The offence already covers a broad range of scenarios in the timeline of offending, ranging from the creation of an electronic service that has not yet gone live to the maintenance of an established website with a global following.

103. New section 474.23A is not limited in application to offenders over 18 years of age. In accordance with section 474.24C of the Criminal Code, the Attorney-General must provide his consent to commence proceedings where the offender is under the age of 18. Section 474.24C ensures that there are sufficient safeguards to prevent the unnecessary prosecution of young persons.

104. The offence will be punishable by a maximum penalty of 20 years' imprisonment. This penalty reflects the higher level of culpability associated with an offence for facilitating the offending of others, including the promotion and creation of child abuse material.

105. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 474.23A, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

Items 25 and 26 - Subsections 474.25A(1) and (2) of the Criminal Code (before the penalty)

106. These items will insert notes in section 474.25A of the Criminal Code (using a carriage service for sexual activity with person under 16 years of age) to clarify that the scope of the conduct captured by the offence includes live-streamed child abuse. Section 474.25A was introduced with the purpose of ensuring that engaging in sexual activity with a child online is criminalised in a comparable way to equivalent activity engaged in in "real life". The offences only capture sexual activity that occurs in "real time", using a carriage service. Sexual activity with a child that does not occur in "real time" is captured by other Commonwealth, state or territory offences, including offences for transmitting child abuse material under sections 474.22 and 474.23 and offences for engaging in sexual activity with a child outside Australia in Division 272 of the Criminal Code.

107. The notes reflect the scope of the conduct captured by the offences in section 474.25A by more clearly drawing attention to the existing definition of engaging in sexual activity in the Dictionary of the Criminal Code and as it applies to offences relating to the use of a carriage service involving sexual activity with persons under 16 years of age.

108. Item 25 inserts a note after subsection 474.25A(1) (engaging in sexual activity with child using a carriage service). This note aims to clarify, by way of examples, that the offence covers a person using a carriage service to see or hear, in "real time", a person under 16 years of age engage in sexual activity. This note also provides that the offence covers a person engaging in sexual activity that is seen or heard, in "real time", by a person under 16 years of age using a carriage service.

109. The definition of engage in sexual activity in the Dictionary of the Criminal Code ensures that a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.

110. Item 26 inserts a note after subsection 474.25A(2) (causing a child to engage in sexual activity with another person). The note aims to clarify, by way of example, that the offence covers causing a person under 16 years of age to engage in sexual activity that is seen or heard, in "real time", by another person by using a carriage service, or to cause a person under 16 years of age to use a carriage service to see or hear, in "real time", another person engage in sexual activity.

Item 27 - Section 474.25B of the Criminal Code (heading)

111. This item repeals the heading before section 474.25B of the Criminal Code and replaces it with 'Aggravated offence - using a carriage service for sexual activity with person under 16 years of age'. This item reflects the expansion of aggravating factors described in item 29 below to include two additional factors of aggravation in section 474.25B.

Item 28 - Paragraph 474.25B(1)(a) of the Criminal Code

112. This item inserts reference to "the underlying offence" in existing paragraph 474.25B(1)(a) of the Criminal Code. This provides clarity in reference to the aggravated offences by ensuring that the "underlying offence", for the purposes of this provision, means an offence against subsections 474.25A(1) or (2).

Item 29 - Section 474.25B of the Criminal Code - Aggravated offence - using a carriage service for sexual activity with person under 16 years of age

113. This item introduces new aggravated offences that apply to the offence of using a carriage service to engage in sexual activity with a person under the age of 16 in section 474.25A. The item repeals existing paragraph 474.25B(1)(b) of the Criminal Code and replaces it with an expanded paragraph (b).

114. Section 474.25B operates to criminalise a range of activities that aggravate the use of a carriage service for sexual activity with a child as criminalised under existing section 474.25A of the Criminal Code. Under the expanded paragraph (b), it will be an aggravated offence for a person to commit an offence against section 474.25A (using a carriage service for sexual activity with person under 16 years of age) where:

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the child has a mental impairment (existing subparagraph 474.25B(1)(b)(i));

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the person is in a position of trust or authority in relation to the child, or the child is otherwise under the care, supervision or authority of the person (existing subparagraph 474.25B(1)(b)(ii));

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the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iii)); or

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the child dies as a result of physical harm suffered in connection with the sexual activity (new subparagraph 474.25B(1)(b)(iv)).

115. The new aggravated offences in subparagraphs 474.25B(1)(b)(iii) and 474.25B(1)(b)(iv) address a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside sexual activity. The Government considers such circumstances to be so grave as to warrant a specific aggravated offence with a higher maximum penalty reflecting a higher level of culpability.

116. Subparagraph 474.25B(1)(b)(iii) provides that the aggravated offence applies in a circumstance where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in the underlying offence.

117. This may include, for example, where the offender causes the child to be unconscious when committing the underlying offence or causes the child to be disfigured or dismembered.

118. Subparagraph 474.25B(1)(b)(iv) provides that the aggravated offence applies in a circumstance where the child dies as a result of the physical harm suffered in connection with the sexual activity referred to in subsections 474.25A(1) or (2) (the underlying offence). "Physical harm" is limited to the definition of "physical harm" in the Criminal Code, which includes unconsciousness, pain, disfigurement, infection with a disease or any physical contact with a person that the person might reasonably object to in the circumstances.

119. The inclusion of the reference to "in connection with" is intended to cover treatment that occurs both before and / or after the sexual activity, and that is directly linked to the sexual activity.

120. Subsection 474.28(7A) will continue to apply to this offence. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a physical element of an offence that is a result. Under section 5.4 of the Criminal Code, a person is "reckless" with respect to a result if (a) he or she is aware of a substantial risk that the result will occur, and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

121. Accordingly, to establish an offence under subparagraph 474.25B(1)(b)(iii), the prosecution will need to prove beyond reasonable doubt that:

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the person committed the underlying offence, and

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the child was subjected to cruel, inhuman or degrading treatment in connection with the sexual activity the subject of the underlying offence, and

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the person was aware of a substantial risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, and

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having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may be subjected to cruel, inhuman or degrading treatment in connection with the sexual activity.

122. To establish an offence under subparagraph 474.25B(1)(b)(iv), the prosecution will need to prove beyond reasonable doubt that:

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the person committed the underlying offence, and

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the child died as a result of physical harm suffered in connection with the sexual activity the subject of the underlying offence, and

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the person was aware of a substantial risk that the child may die as a result of physical harm suffered in connection with the sexual activity, and

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having regard to the circumstances known to the person, it was unjustifiable to take the risk that the child may die as a result of physical harm suffered in connection with the sexual activity.

123. These new aggravated offences will be punishable by a maximum penalty of 30 years' imprisonment, as will be the penalty for the existing aggravated offences for sexual activity where the child has a mental impairment or the person is in a position of trust or authority in relation to the child (see item 18 of Schedule 5). This increased penalty reflects the higher level of culpability associated with an offence of sexual activity with a child where the victim is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or dies as a result of the sexual activity.

Item 30 - After section 474.27 of the Criminal Code

124. This item inserts a new section 474.27AA into the Criminal Code. This item will insert a new offence criminalising using a carriage service to "groom" another person to make it easier to procure persons under 16 years of age for sexual activity.

125. New section 474.27AA complements the existing procurement and grooming offences set out in sections 474.26, 474.27 and 474.25C of the Criminal Code. Proposed section 474.27AA contains three separate offences for the online "grooming" of third parties.

126. The proposed offence in subsection 474.27AA(1) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with the sender.

127. For example, an act of "grooming" a third party using a carriage service may include a person who is an adult (Person A) and is in a relationship with another adult (Person B), using their phone to text Person B offering to look after Person B's son, who is under 16 years of age, with the intention of engaging in sexual activity with the son while Person B is away.

128. The proposed offence in subsection 474.27AA(2) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another person (the participant).

129. The proposed offence in subsection 474.27AA(3) will address "grooming" where an adult (sender) communicates with a person over a carriage service with the intention of making it easier to procure a child, who is, or who the sender believes to be, under 16 years of age, to engage in sexual activity with another child, under 18 years of age, in the presence of the sender or another person (the participant).

130. The reference to "engage in sexual activity" in subparagraphs 474.27AA(1)(b), (2)(b) and (3)(b) is not limited to sexual activity in "real life". The definition of "engage in sexual activity" extends to an act that does not necessarily require physical contact and includes engaging in online sexual activity with a child. "Engage in sexual activity" also includes a person in the presence of another person, through means of communication that allows the first person to see or hear the other person, while the other person engages in sexual activity.

131. The reference to "procure" in paragraphs 474.27AA(1)(b), (2)(b), (3)(b) includes encouraging, enticing, recruiting and inducing a child to engage in sexual activity. "Procure" is defined in the Criminal Code and includes conduct where a sender may encourage a person to engage in "consensual" sexual activity but also includes conduct where a sender may coerce a person into engaging in "non-consensual" activity.

132. Paragraphs 474.27AA(1)(d) and (2)(d), and subparagraph (3)(e)(ii), provide clarity that the offence only targets adult offenders (persons who are at least 18 years of age). This offence will not capture conduct engaged in by persons under 18 years of age with an intended victim under the age of 16 years. This respects the right of young people, over 16, to make their own decisions about sex, and reflects the age of consent in the majority of jurisdictions.

133. The proposed maximum penalty is imprisonment for 15 years for each offence under section 474.27AA. The maximum penalty level proposed will be the same as the maximum penalty for other preparatory child sex offences of procurement (imprisonment 15 years) and "grooming" (imprisonment 15 years) which will be increased in Part 10.6 of the Criminal Code under items 12, 13, 19 and 20 of Schedule 5. The proposed maximum penalty of 15 years' imprisonment is consistent with the serious nature of this type of offending behaviour. Grooming can involve significantly manipulative and deceptive conduct, which can have a significant detrimental effect on the child that is subject to the grooming behaviour. The maximum penalty recognises the harm done to the victims of this offence.

134. The conduct in paragraphs 474.27AA(1)(a), (2)(a) and (3)(a) requires that a carriage service is used to engage in the criminalised conduct. This provides the relevant connection with the Commonwealth's telecommunications power under the Australian Constitution.

135. The presumption set out in section 475.1B of the Criminal Code that conduct is engaged in using a carriage service will apply as the offence will be inserted into Subdivision F of Division 474 of the Criminal Code. This presumption means that if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves contrary, that the person engaged in that conduct using a carriage service.

136. Category A geographical jurisdiction, as outlined in section 15.1 of the Criminal Code, will apply to section 474.27AA, as it is a telecommunications offence. Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under the proposed amendments, even if their conduct does not constitute an offence in that country and the results of that conduct do not affect Australia.

Item 31 - Paragraph 474.28(1)(a) of the Criminal Code

137. This item amends paragraph 474.28(1)(a) by inserting a reference to section 474.27AA so that absolute liability applies to the physical element of the circumstances of the offence that the child referred to is someone who is under 16 years of age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Item 32 - Subsection 474.28(2) of the Criminal Code

138. This item amends subsection 474.28(2) by inserting a reference to subsections 474.27AA(2) and 474.27AA(3) so that absolute liability applies to the physical element of the circumstances of the offence that the participant is at least 18 years of age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Item 33 - Subsections 474.28(3) and (4) of the Criminal Code

139. This item amends subsections 474.28(3) and (4) by repealing the subsections and replacing them with a new subsection 474.28(3). New subsection 474.28(3) provides that evidence that a person was represented to the defendant as being under, of, at least or over a particular age is, in the absence of evidence that is contrary, proof that the defendant believed the person to be under, of, at least or over that age. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Item 34 - Subsection 474.28(8) of the Criminal Code

140. This item amends paragraph 474.28(8) by inserting a reference to section 474.27AA so that a person may be found guilty for an offence under 474.27AA even if it is impossible for the sexual activity to take place. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Items 35 to 37 - Subsection 474.28(9) of the Criminal Code

141. Item 35 amends the heading of subsection 474.28(9) of the Criminal Code by repealing the heading and replacing it with a new heading: "Fictitious persons". This amendment is consequential to item 37 of this schedule which inserts a new subsection 474.28(9A) into the Criminal Code after subsection 474.28(9). New subsection 474.28(9A) makes it irrelevant for the purposes of an offence under 474.27AA whether a fictitious person is represented to the sender as a real person. This item expands the heading from "Fictitious recipient" to "fictitious persons" to reflect that subsections 474.28(9) and 474.28(9A) together refer to fictitious persons who may not exclusively be recipients.

142. This is necessary to allow for a standard investigatory technique used for this crime type, whereby a law enforcement officer assumes the identity of a fictitious person (whether a child or third party) and interacts with potential offenders before they have an opportunity to sexually abuse a real child.

143. Item 36 applies subsection 474.28(9) to the operation of the offence for online "grooming" of third parties under section 474.27AA. Subsection 474.28(9) provides that it does not matter that a fictitious person is represented to the sender as a real person. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

144. Item 37 inserts a new subsection 474.28(9A) into subsection 474.28(9) of the Criminal Code. New subsection 474.28(9A) provides that, for the operation of section 474.27AA, it does not matter that the child is a fictitious person represented to the sender as a real person. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Item 38 - Subsection 474.28(10) of the Criminal Code

145. This item applies subsection 474.28(10) to the offence for online "grooming" of third parties under section 474.27AA. Section 474.28(10) provides that it is not an offence to attempt to commit an offence under the listed sections of the Criminal Code. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

Items 39 to 40 - Subsection 474.29(4) of the Criminal Code

146. Item 39 amends the heading of subsection 474.29(4) of the Criminal Code by repealing the heading and replacing it with a new heading: "Procuring and "grooming" offences involving child engaging in sexual activity with other participant - belief that participant under 18 years of age". The new heading makes clear that the person, referred to in the heading and the object of offences for grooming and procuring, is a child. This amendment is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

147. Item 40 applies subsection 474.29(4) to subsections 474.27AA(2) and 474.27AA(3). Subsection 474.29(4) provides that it is a defence to a prosecution under subsections 474.27AA(2) and 474.27AA(3) if the defendant can prove that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age. This provision is intended to protect vulnerable persons whilst respecting the right of young people, over 16, to make their own decisions about sex. This item is consequential to item 30 of this schedule which inserts a new offence for online "grooming" of third parties into the Criminal Code.

148. The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant must discharge this burden on the balance of probabilities. It would then be for the prosecution to refute the matter beyond reasonable doubt.

149. While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant's belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other "grooming" offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 474.27AA relating to the age of the participant (item 32 of this schedule).

Items 41 to 42 - Subsection 474.29(5) of the Criminal Code

150. Item 41 amends the heading of subsection 474.29(5) of the Criminal Code by repealing the heading and replacing it with "Offences involving transmission of communication - belief that certain persons at least 16 years of age". This amendment is consequential to item 30 of this schedule which inserts a new offence for the online "grooming" of third parties into the Criminal Code.

151. Item 42 amends subsection 474.29(5) by inserting a new subsection 474.29(5A) into the Criminal Code. This amendment is consequential to item 30 of this schedule which inserts a new offence for the online "grooming" of third parties into the Criminal Code and provides that it is a defence to a prosecution under this new offence if the defendant can prove that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age. This ensures that this new offence for the online "grooming" of third parties only targets offenders who are trying to make it easier to engage in sexual activity with a child under the age of 16.

152. The defendant bears the legal burden of adducing evidence to support this defence. In accordance with sections 13.4 and 13.5 of the Criminal Code, the defendant must discharge this burden on the balance of probabilities. If the defendant does this, it is then for the prosecution to refute the matter beyond reasonable doubt.

153. While a legal burden of proof places a higher burden on the defendant, it is justified in these circumstances given that the defendant's belief as to the age of the participant is a matter peculiarly within his or her knowledge and not readily available to the prosecution. The reverse legal burden is consistent with other "grooming" offences in the Criminal Code and is appropriate and proportionate given their intended deterrent effect. This defence ameliorates the application of absolute liability to the elements in proposed section 474.27AA relating to the age of the child (item 31 of this schedule).

154. It is important to note that an offence will still be committed where the defendant believes the child to be under the age of 16 years, regardless of the actual circumstances of the offending. This is necessary to accommodate a standard investigatory technique where a law enforcement officer assumes the identity of a fictitious child to apprehend a potential adult offender before that offender has the opportunity to sexually abuse a real child.

Item 43 -Dictionary in the Criminal Code

155. Item 43 inserts a reference to the definition of electronic service as defined in new section 474.23A into the Dictionary of the Criminal Code.

Part 2 - Amendments contingent on the Combatting Child Sexual Exploitation Legislation Amendment Act 2019

Criminal Code Act 1995

156. This Part is drafted on the basis that it will commence after (and only if) the provisions in Schedules 2 and 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 receive the Royal Assent and commence.

Item 44 - Paragraph 474.23A(1)(b) of the Criminal Code

157. This item is a contingent amendment to reflect the insertion by the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 of the new section 474.22A into the Criminal Code (which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service) and its interaction with the new section 474.23A of the Criminal Code (conduct for the purposes of electronic service used for child abuse material) proposed in this Bill.

158. Item 24 of this schedule will insert new section 474.23A to criminalise the provision of an electronic service with the intention that the service will facilitate the commission of an offence against sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code.

159. Item 44 provides that, upon commencement of the new section 474.22A in the Criminal Code (which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service) which is proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, that new offence will also be one of the relevant offences listed in paragraph 474.23A(1)(b), alongside the existing offences of sections 474.22 (using a carriage service for child abuse material) or 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) of the Criminal Code.

Item 45 - Paragraph 474.23A(2)(a)

160. Item 45 would include the new offence proposed in Schedule 3 of the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 which criminalises possessing or controlling child abuse material obtained or accessed using a carriage service (proposed new section 474.22A of the Criminal Code) in paragraph 474.23A(2)(a) as one of the offences which a person can be found guilty of even if committing an offence against the proposed new section 474.22A (like the existing sections 474.22 or 474.23) is impossible for any reason. This ensures that the offence applies to a wide range of factual circumstances and allows law enforcement to intervene at an early stage in the offending timeline.

Item 46 - Subsections 474.24(1), (3) and (4) of the Criminal Code

161. This item ensures that the existing defences available under subsections 474.24(1), (3) and (4) of the Criminal Code for offences against sections 474.22 (using a carriage service for child abuse material) and 474.23 (possessing child abuse material for use through a carriage service) of the Criminal Code are also available for the new offences proposed at item 24 of this Bill (new section 474.23A - conduct for the purposes of electronic service used for child abuse material).