House of Representatives

Explanatory Memorandum

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

Schedule 5 - Increased penalties

Criminal Code Act 1995

Items 1 and 2 - Subsections 272.8(1) and (2) of the Criminal Code (penalty)

162. Item 1 repeals the existing penalty under subsection 272.8(1) of the Criminal Code (which criminalises sexual intercourse with a child outside Australia) and substitutes it with a maximum penalty of 25 years' imprisonment.

163. Item 2 repeals the existing penalty under subsection 272.8(2) of the Criminal Code (causing a child outside Australia to engage in sexual intercourse in presence of the defendant) and substitutes it with a maximum penalty of 25 years' imprisonment.

164. These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending.

Items 3 and 4 - Subsections 272.9(1) and (2) of the Criminal Code (penalty)

165. Item 3 repeals the existing penalty and substitutes 20 years' imprisonment as the maximum penalty available under subsection 272.9(1) of the Criminal Code (engaging in sexual activity with a child outside Australia).

166. Item 4 repeals the existing penalty and substitutes 20 years' imprisonment as the maximum penalty for offences against subsection 272.9(2) of the Criminal Code (causing a child outside Australia to engage in sexual activity in the presence of the defendant).

167. These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 20 years' imprisonment strikes an appropriate balance between the maximum penalty of 15 years' imprisonment for offences preparatory to engaging in sexual activity with a child, including "grooming" offences, and the maximum penalty of 25 years' imprisonment for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code) as increased by items 1 and 2 of this schedule.

Items 5 and 6 - Subsection 272.10(1) and subsection 272.11(1) of the Criminal Code (penalty)

168. Section 272.10 as amended by the Bill criminalises a range of activities that aggravate the offences in sections 272.8 and 272.9 of the Criminal Code, including where:

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the child has a mental impairment

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the defendant is in a position of trust in relation to the child

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the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity, or

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the child dies as a result of physical harm suffered in connection with the sexual activity.

169. Item 5 repeals the existing maximum penalty under subsection 272.10(1) of the Criminal Code and substitutes imprisonment for life as the maximum penalty.

170. Item 6 repeals the existing maximum penalty under subsection 272.11(1) of the Criminal Code (persistent sexual abuse - three or more occasions - of a child outside Australia) and substitutes imprisonment for 30 years as the maximum penalty.

171. These items ensure that the maximum penalty available to the courts reflects the gravity of this aggravated offending and higher level of culpability. These items also ensure that the maximum penalty for each of these offences is also consistent with the proposed increase in the maximum penalty for the aggravated offences in item 18 of this schedule which similarly involve conduct on three or more occasions and two or more people.

Item 7 - Subsection 272.15(1) of the Criminal Code (penalty)

172. Item 7 repeals the existing maximum penalty of 12 years' imprisonment under subsection 272.15(1) and substitutes it with a maximum penalty of 15 years' imprisonment.

173. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm "grooming" has on a child victim. "Grooming" is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ "grooming" behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of "grooming" can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of "grooming") the perpetrator impacts the child victim's psychosocial development.

Items 8 and 9 - Subsections 272.18(1) and 272.19(1) of the Criminal Code (penalty)

174. Items 8 and 9 repeals the existing maximum penalty:

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under subsection 272.18(1) of the Criminal Code (benefitting from a sexual offence against a child outside Australia) and substitutes it with a maximum penalty of 25 years' imprisonment, and

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under subsection 272.19(1) of the Criminal Code (encouraging a sexual offence against a child outside Australia) and substitutes it with a maximum penalty of 25 years' imprisonment.

175. These items ensure that the maximum penalty available for these offences reflects the gravity of the offending.

Items 10 and 11 - Subsections 273.7(1) and 471.22(1) of the Criminal Code (penalty)

176. These items repeal the existing maximum penalty for the following aggravated offences involving conduct on three or more occasions and two or more people:

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under subsection 273.7(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years' imprisonment, and

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under subsection 471.22(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years' imprisonment.

177. These items ensure that the maximum penalty available to the courts for these aggravated offences reflects the gravity of the offending and higher level of culpability.

Items 12 and 13 - Subsections 471.25(1) and (2) of the Criminal Code (Using a postal or similar service to "groom" persons under 16)

178. Items 12 and 13 repeal the existing maximum penalties of 12 years' imprisonment for offences under subsections 471.25(1) and 471.25(2) of the Criminal Code (using a postal or similar service to "groom" persons under 16) and substitute them with a maximum penalty of 15 years' imprisonment.

179. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm "grooming" has on a child victim. "Grooming" is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ 'grooming' behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of "grooming" can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of "grooming") the perpetrator impacts the child victim's psychosocial development.

Item 14 - Subsection 471.26(1) of the Criminal Code

180. Item 14 repeals the existing maximum penalty of 7 years' imprisonment in subsection 471.26(1) of the Criminal Code (using a postal or similar service to send indecent material to a person under 16) and substitutes this with a maximum penalty of 10 years' imprisonment. A comparative increase will be made to section 474.27A (using a carriage service to transmit indecent communication to person under 16 years of age) - see item 21 of this schedule below.

181. This will also bring the maximum penalty in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim.

Item 15 - Subsection 474.24A(1) of the Criminal Code (penalty)

182. This item repeals the existing maximum penalty under subsection 474.24A(1) of the Criminal Code and substitutes it with a maximum penalty of 30 years' imprisonment. Subsection 474.24A(1) is an aggravated offence and the proposed increased penalty better reflects the gravity of the offending and the higher level of culpability associated with an offence involving conduct on three or more occasions and two or more people.

Items 16 and 17 - Subsections 474.25A(1) and (2) of the Criminal Code (penalty)

183. Item 16 substitutes 20 years' imprisonment as the maximum penalty available under subsection 474.25A(1) of the Criminal Code (engaging in sexual activity with a child using a carriage service).

184. Consistent with item 16, item 17 provides that the maximum penalty for offences against subsection 474.25A(2) of the Criminal Code (causing a child to engage in sexual activity with another person using a carriage service) is 20 years' imprisonment.

185. These items ensure that the maximum penalties for these offences better reflect the seriousness of this offending. A maximum penalty of 20 years' imprisonment for these offences strikes an appropriate balance between the maximum penalty of 15 years' imprisonment for offences preparatory to engaging in sexual activity with a child, including procuring and "grooming" offences, and the new maximum penalty of 25 years' imprisonment (see items 1 and 2 of this Schedule) for engaging in sexual intercourse with a child (section 272.8 of the Criminal Code).

Item 18 - Subsection 474.25B(1) of the Criminal Code (penalty)

186. 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. Item 18 repeals the existing penalty at subsection 474.25B(1) of the Criminal Code of 25 years' imprisonment and substitutes 30 years' imprisonment as the maximum penalty available to the courts.

187. This increased penalty reflects the higher level of culpability associated with the existing aggravated offences set out in section 474.25B (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) as well as the new aggravated offences 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 (as inserted by item 29 of Schedule 4).

Items 19 and 20 - Subsections 474.27(1) and (2) of the Criminal Code (penalty)

188. Items 19 and 20 repeal the existing maximum penalties of 12 years' imprisonment for offences under subsections 474.27(1) and 474.27(2) of the Criminal Code (using a carriage service to "groom" persons under 16 years of age) and substitute these with maximum penalties of 15 years' imprisonment.

189. The increase in penalty reflects the growing body of evidence that demonstrates the extent of harm "grooming" has on a child victim. "Grooming" is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ "grooming" behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of "grooming" can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of "grooming") the perpetrator impacts the child victim's psychosocial development.

Item 21 - Subsection 474.27A(1) of the Criminal Code (penalty)

190. Item 21 repeals the existing maximum penalty of 7 years' imprisonment in subsection 474.27A(1) of the Criminal Code and substitutes this with a maximum penalty of 10 years' imprisonment.

191. This brings the term of imprisonment in line with the penalty provision for section 474.25C of the Criminal Code (using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, a person under 16 years of age) which criminalises conduct of analogous seriousness and ensures that the penalty better reflects the relative seriousness of the offending and the effect this conduct can have on the child victim.

Application of the increased penalties

192. The increased maximum penalties will not apply retrospectively where a person has been convicted of an offence committed before the commencement of this Schedule but subsequently sentenced after commencement of the Schedule. That is, the maximum penalty available for the offence at the time it was committed will be the applicable maximum penalty available to the court.