CHAPTER 2
OVERVIEW OF THE BILL
Key provisions of the Bill
2.1
There are two schedules to the Bill. Schedule 1 of the Bill (Item 1)
will:
- repeal the existing child sex tourism offence regime in the Crimes
Act 1914 and move the provisions to the Criminal Code Act 1995 (the Criminal
Code) (proposed new Divisions 272 and 273);[1]
- seek to strengthen the existing child sex tourism regime by
improving the operation of existing offences for sexual intercourse or other
sexual activity with a child; and by introducing new sexual activity offences
directed at aggravated conduct, persistent sexual abuse and sexual activity
with a young person (between 16 and 18 years of age) where the defendant is in
a position of trust or authority in relation to the young person;
- introduce new offences for Australians dealing in child
pornography and child abuse material overseas, for which there are currently no
offences applying extra-territorially. New offences will apply for possessing,
controlling, producing, distributing or obtaining child pornography or child abuse
material outside Australia; and
- make minor consequential amendments.
2.2
Schedule 2 of the Bill will establish a specific scheme in the Crimes
Act 1914 for the forfeiture of child pornography and child abuse material
that is related to a Commonwealth child sex offence.
2.3
The main focus of this chapter is on the amended and new offences to be
introduced by the Bill.
SCHEDULE 1—AMENDMENTS RELATING TO SEXUAL OFFENCES AGAINST CHILDREN
Part 1—Amendments relating to child sex offences outside Australia
2.4
New Division 272 of the Criminal Code will deal with child sex offences
outside Australia (child sex tourism) and Division 273 will deal with offences
involving child pornography or child abuse material outside Australia (Item 4).
Division 272—Child sex offences outside Australia
2.5
New Division 272 (Subdivision A) of the Criminal Code will contain the
definition provisions currently contained in section 50AA of the Crimes Act
1914. Some amendments to the existing definitions, as well as new
definitions, will also be included (these are discussed below where relevant).[2]
2.6
The offences relating to child sex offences outside Australia in new
Division 272 (Subdivision B) of the Criminal Code will be based on
existing Part IIIA 'Child Sex Tourism' in the Crimes Act 1914.
Offences directed at sexual
intercourse and other sexual activity
Sexual intercourse and sexual
conduct offences
2.7
Existing child sex tourism offences in Part IIIA of the Crimes Act
1914 criminalise engaging in sexual intercourse or sexual conduct with a
person under 16, or inducing a person under 16 to engage in sexual intercourse
or sexual conduct in the presence of the defendant.[3]
The amendments are intended to simplify the structure of these offences by
merging the existing offences into one offence.
2.8
The new 'sexual intercourse' offence will apply to engaging in
sexual intercourse with a child (paragraph 272.8(1)(a))[4]
or to causing a child to engage in sexual intercourse in the presence of
the defendant (outside Australia) (paragraph 272.8(2)(b)). The use of causing
rather than inducing is intended to avoid confusion by distinguishing
this offence from the new procuring offence to be inserted by the Bill. It also
makes clear that the offence is directed not at inducing conduct but at the
more serious conduct of actual sexual intercourse.
2.9
The maximum penalty for an offence under this section will be 20 years
imprisonment (increased from 17 years under the Crimes Act 1914).
2.10
The current 'sexual conduct' offences will be replaced by an offence
directed at 'sexual activity', which will apply to engaging in sexual
activity with a child (paragraph 272.9(1)(a)) or causing a child to
engage in sexual activity in the presence of the defendant (outside Australia)
(paragraph 272.9(2)(b)). The new 'sexual activity' offence removes current
references to specific variations of behaviour that the offence is intended to
cover, and relies instead on the existing definition of sexual activity
in the Criminal Code (Item 10) and a new extended definition of engage in
sexual activity (Item 6). The purpose of the offence is to cover any conduct
which involves a child engaging in any sexual activity (other than sexual
intercourse) with, or in the presence of, the defendant outside Australia.
2.11
Subsection 272.9(5) will make available a defence to these offences where
the child was present but the defendant did not intend to derive gratification.
The EM explains that this defence is intended to ensure that a person will not
be captured by the offences in cases where a child happens to be present but
there was no intention on the part of that person to derive gratification from
the child's presence.
2.12
The maximum penalty for an offence under this section will be 15 years
imprisonment (increased from 12 years under the Crimes Act 1914).
New aggravated offences
2.13
Section 272.10 will introduce new aggravated 'sexual intercourse' and
'sexual activity' offences.[5]
The aggravated offences will apply where the child has a mental impairment
and/or the defendant 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 defendant. The new offence will rely on the existing definition of mental
impairment in subsection 7.3(8) of the Criminal Code and on the new
definition of position of trust or authority (Item 4). However,
this aggravating factor is intended to apply more broadly than just those
specific relationships that will be prescribed under the definition, and it
will be for the court to determine whether the child was otherwise under the
care, supervision or authority of the defendant.
2.14
A defence will be available to the defendant to the effect that, at the
time the underlying offence was committed, he or she believed that the child
did not have a mental impairment (subsection 272.10(6)). The defence of mistake
of fact and the general defences under existing section 9.2 and Part 2.3 of the
Criminal Code will also be available to a defendant.
2.15
The maximum penalty for an offence under this section will be 25
years imprisonment.
New persistent sexual abuse offence
2.16
Section 272.11 introduces a new offence of persistent sexual abuse of a
child overseas. In satisfying this offence it will not be necessary to specify
or prove the dates or exact circumstances of the occasions on which the
offending behaviour occurred (subsection 272.11(5)). It will also be immaterial
whether the underlying offence is the same on each occasion (subsection
272.11(4)). This takes into account past difficulties in presenting evidence of
particular acts with sufficient precision.
2.17
The maximum penalty for an offence under this section will be 25 years
imprisonment.
New offence of abuse of a young
person where offender is in a position of trust or authority
2.18
Sections 272.12 and 272.13 will introduce new 'sexual intercourse' or
other 'sexual activity' offences with a young person (a person aged between 16
and 18 years of age). Under these sections, it will be an offence to engage
in sexual intercourse with a young person or to cause a young person to
engage in sexual intercourse in the presence of the defendant outside
Australia, where the defendant is in a position of trust or authority in
relation to the young person.
2.19
A number of defences will be available to a defendant accused of an
offence under section 272.12. The amendments include a specific defence of
belief of age (section 272.16) as well as a specific defence relating to the
existence of a valid and genuine marriage (section 272.17). The defence of
mistake of fact and the general defences under section 9.2 and Part 2.3 of the
Criminal Code, respectively, will also be available. In relation to section
272.13, the specific defences relating to belief of age and the existence of a
valid and genuine marriage will be available. The general defence under Part
2.3 of the Criminal Code will also be available
2.20
The maximum penalty for an offence under these sections will be
10 years imprisonment.
New procurement offence
2.21
Section 272.14 creates an offence of procuring a child to engage in
sexual activity outside Australia. The EM states that the purpose of the
offence is to address gaps in the current law, which do not criminalise behaviour
leading up to actual sexual activity with a child. Under section 272.14, it
will be an offence to engage in conduct to procure a child to engage in sexual
activity in Australia. The procuring offence is directed at the procuring (or
inducing) conduct and does not require the actual sexual activity to take
place.
2.22
Sexual activity will be defined (Item 10) to mean sexual intercourse
or any other act of a sexual or indecent nature (including an indecent assault)
that involves the human body, or bodily actions or functions (whether or not
that activity involves physical contact between people).
2.23
A number of defences will be available to a defendant accused of an
offence under this section. The amendments include a specific defence of belief
of age as well as a specific defence relating to the existence of a valid and
genuine marriage. The general defences under Part 2.3 of the Criminal Code will
also be available.
2.24
The maximum penalty for an offence under this section will be
15 years imprisonment.
New grooming offence
2.25
The term 'grooming' generally refers to behaviour that is designed to
make it easier for the offender to procure a child for sexual activity. Under
section 272.15, it will be an offence to groom a child with the intention of
making it easier to procure the child to engage in sexual activity outside
Australia.
2.26
The EM notes that, within Australia, offences already exist for grooming
a child for sexual activity or for using a carriage service for such behaviour.
However, while child sex tourism offences prohibit engaging in sexual
intercourse or sexual conduct with a child, or inducing a child to engage in
such conduct, they do not criminalise behaviour leading up to actual sexual
activity with a child. The amendment will ensure that equivalent offences are
in place in relation to grooming a child for sexual activity overseas. This
will 'ensure comprehensive criminalisation of this kind of conduct, and place
Australia on par with its international counterparts'.[6]
2.27
Sexual activity will be defined as per the procurement offence at
section 272.14 (see above). The grooming offence will also rely on a new
definition of engage in sexual activity. Without limiting when a person
engages in sexual activity, a person will be 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.
2.28
A number of defences will be available to a defendant accused of an
offence under this section, as per the procurement offence (see above).
2.29
The maximum penalty for an offence under this section will be 12 years
imprisonment.
New offences of benefiting from,
encouraging or preparing to commit sexual offences against children outside
Australia
2.30
New Division 272 (Subdivision C) of the Criminal Code will also insert
three new offences directed at commercial child sex tour operators and preliminary
conduct engaged in by child sex clients.
Benefiting from or encouraging an offence
against Division 272
2.31
Under section 272.18, it will be an offence for a person to engage in
conduct, whether in Australia or overseas, with the intention of benefiting
from an offence against Division 272 (if the conduct is reasonably capable of
resulting in that person benefiting from the offence).
2.32
Section 272.19 is similar to section 272.18[7]
but proscribes acts or omissions performed with the intention of 'encouraging'
an offence under Division 272 (if the act or omission is reasonably capable of
encouraging such conduct).
2.33
The maximum penalty for an offence under either of these sections will
be 20 years imprisonment (increased from 17 years under the Crimes Act 1914).
The EM explains that the increased penalties are intended to mirror the maximum
penalties for the most serious substantive child sex tourism offences – the
sexual intercourse offence and sexual conduct offences – which will be raised to
17 and 20 years imprisonment respectively.[8]
New preparatory offence
2.34
Under section 272.20, it will be an offence to prepare for or plan an
offence relating to sexual intercourse or other sexual activity with a child
(subsection 270.20(1)).[9]
It will also be an offence to prepare or plan for an offence relating to sexual
abuse of a young person (that is, a person aged between 16 and 18 years of age)
outside Australia where the defendant is in a position of trust or authority in
relation to the young person (subsection 270.20(2)).[10]
2.35
The EM states that this new offence is necessary because it is unclear
whether the existing 'benefiting' and 'encouraging' offences in sections 272.18
and 272.19 –which would apply to, for example, a child sex tour operator – would
apply to preparatory activity where a person was planning their own
participation in child sex tourism. The new offence is intended to allow law
enforcement agencies to intervene at an earlier stage where there is evidence of
a person's intent to travel overseas to sexually abuse children.
2.36
The maximum penalty for an offence under this section will be 10 years
imprisonment, or five years in the case of preparing or planning an offence
against sections 272.12 or 272.13 (relating to a young person).
Consent to proceedings where the
defendant is under 18 years of age
2.37
Section 272.31 will provide that proceedings for an offence against
Division 272 must not be commenced without the consent of the
Attorney-General if the defendant was under 18 at the time he or she allegedly
engaged in the conduct constituting the offence.
2.38
The EM explains that this will enshrine in legislation a direction of
the Attorney-General that was issued in 1994 under section 8 of the Director
of Public Prosecutions Act 1983.[11]
Division 273—Offences involving child pornography material or child abuse
material outside Australia
2.39
The EM explains that the possession, production or distribution of child
pornography or child abuse material within Australia, or unlawfully importing
such material into Australia, is currently criminalised by Commonwealth, state
and territory laws. However, these existing offences do not have extra-territorial
effect, and many countries either do not have comparable laws or are unwilling
or unable to enforce them. Accordingly, new Division 273 (Subdivision B) of the
Criminal Code will contain a number of offences directed at dealing in child
pornography and child abuse material overseas. It will also include an aggravated
offence, which will apply where an offence involves conduct on three or more
occasions and involving two or more persons.[12]
New offence for possessing,
controlling, producing, distributing or obtaining child pornography or child
abuse material outside Australia
2.40
Under sections 273.5 and 273.6, it will be an offence for a person to
possess, control, produce, distribute or obtain child pornography or child
abuse material, or to facilitate the production or distribution of such
material, while that person is outside Australia. Child pornography material
is defined in the existing definitions section of the Criminal Code. The
definition includes material that depicts or describes a child engaged in
sexual activity in a way that reasonable persons would regard as being, in all
the circumstances, offensive.
2.41
The maximum penalty for an offence under these sections will be 15 years
imprisonment.
New aggravated offence for conduct
on three or more occasions and involving more than one person
2.42
Section 273.7 will introduce a new aggravated offence that will apply if
a person commits an offence against sections 273.5 or 273.6 (the underlying
offences) in circumstances where the defendant has committed an underlying
offence on three or more separate occasions and the commission of these
offences involved two or more persons. The EM notes that the purpose of the
provision is to target criminal networks engaged in offences involving child
pornography and/or child abuse material.[13]
2.43
The maximum penalty for an offence under this section will be 25 years
imprisonment. The EM notes that this higher maximum penalty is justified by the
additional or aggravating elements of the offence.[14]
Defences
2.44
Section 273.9 (Division 273, Subdivision C) will set out the defences to
the offences in Subdivision B.[15]
These are intended to protect people who have legitimate reasons for
possessing, controlling, producing, distributing or obtaining child pornography
material or child abuse material. The defences include circumstances where:
- a defendant can point to evidence to suggest that his or her conduct
is of public benefit and does not go beyond what is of public benefit
(subsection 273.9(1));
- the person is at the time of the offence a law enforcement
officer, an intelligence or security officer, or an officer or employee of the
government of a foreign country performing similar duties to an intelligence or
security officer and acting reasonably in the course of their duties; and
- the person engages in the conduct in good faith for the sole
purpose of assisting the Australian Communications and Media Authority to:
- detect prohibited, or potentially prohibited, content in the
performance of the Authority's functions; or
-
manufacture, develop or update content filtering technology
(including software) in accordance with a recognised alternative
access-prevention arrangement or a designated alternative access-prevention
arrangement.
Part 2—Amendments relating to child sex offences involving postal or
similar services, or carriage services
2.45
Part 2 of Schedule 1 will introduce a number of offences which criminalise
the use of a postal or similar service for child sex-related activity. The
offences will mirror relevant carriage service offences (as amended by
Schedule 1) and ensure that such activity is criminalised consistently,
regardless of the means through which it is committed. A range of amendments are
made to existing Division 474, which sets out a number of
telecommunications offences relating to the use of a carriage service for
criminal activity. Section 470.4 will insert a number of definitions for
the purposes of new Subdivisions B and C of Division 471. These are discussed
below as relevant.[16]
New offences relating to use of
postal or similar service for child pornography material or child abuse
material
2.46
Item 14 of the Bill will insert new Subdivision B into the Criminal Code,
relating to use of a postal or similar service for child pornography material
or child abuse material.
Using a postal or similar service
for child pornography or child abuse material
2.47
Under sections 471.16 and 471.19, it will be an offence to use a postal
or similar service for child pornography or child abuse material and to cause
or request any such material to be carried by any such service. The EM states
that the purpose of this offence is to ensure that the use of a postal or
similar service for conduct relating to child pornography is criminalised in a
way that is consistent with comparable offences directed at the Internet.[17]
2.48
The maximum penalty for an offence under these sections will be 15 years
imprisonment.
Possessing, controlling, producing,
supplying or obtaining child pornography material for use through a postal or
similar service
2.49
Under subsection 471.17(1), it will be an offence for a person to
possess, control, produce, supply or obtain child pornography material with the
intention that the material will be used by that person, or another person, in
committing an offence against section 471.16 (using a postal or similar
service for child pornography material).
2.50
The maximum penalty for an offence under this section will be 15 years
imprisonment.
Defences in respect of child
pornography material
2.51
Section 471.18 will set out the defences to an offence against the
postal service offences involving child pornography material.[18]
These defences will apply where the conduct said to constitute the offence is
of public benefit. Conduct that is considered to be of public benefit includes
situations where the conduct is necessary for enforcing, or monitoring
compliance with, a Commonwealth, state or territory law, for the administration
of justice, or for conducting scientific, medical or educational research
approved by the Minister. Subsection 471.18(2) will provide an exhaustive
list of conduct that is of public benefit.
2.52
The section also includes a defence for law enforcement, intelligence or
security officers acting in the course of duty.[19]
Possessing, controlling, producing,
supplying or obtaining child abuse material for use through a postal or similar
service
2.53
Under subsection 471.20(1), it will be an offence for a person to possess,
control, produce, supply or obtain child abuse material with the intention that
the material will be used by that person, or another person, in committing an
offence against section 471.19 (using a postal or similar service for child
abuse material).
2.54
The maximum penalty for an offence under this section will be 15 years
imprisonment.
Defences in respect of child abuse
material
2.55
The defences to postal service offences involving child abuse material
will operate as per those set out above in relation to child pornography
material.
Aggravated offence involving
conduct on three or more occasions and two or more people
2.56
Subsection 471.22(1) will insert a new aggravated offence that will
apply if a person commits an offence against sections 471.16, 471.17,
471.18, 471.19 and 471.20 (the underlying offences), in circumstances where the
defendant has committed an underlying offence on three or more separate occasions
and the commission of these offences involved two or more persons.
2.57
Subsection 471.22(5) will provide that a person who has been convicted
or acquitted of an aggravated offence will not be able to be convicted of an
offence against sections 471.16, 471.17, 471.18, 471.19 or 471.20 for the same
conduct that constituted the aggravated offence.
2.58
The maximum penalty for an offence under this section will be
25 years imprisonment.[20]
New offences relating to use of a postal
or similar service involving sexual activity with a person under 16
2.59
New Subdivision C of existing Division 471 of the Criminal Code will
introduce three new offences directed at the use of postal or similar services
for offences involving sexual activity with a person under 16. The new offences
will mirror existing and new carriage service offences.
Using a postal or similar service
to procure or to groom persons under 16 years of age
2.60
Under sections 471.24 and 471.25, it will be an offence to use a
postal or similar service to procure or to groom a person under 16 to engage in
sexual activity. The EM states that the purpose of these offences is to give
law enforcement authorities the means to deal with preparatory conduct and
enable a person to be arrested before any physical harm occurs to the child.
2.61
The grooming offence will apply where a person engages in conduct using
a postal or similar service with the intention of making it easier to procure
the child ('grooming' the child) to participate in certain activities. Subsection 471.25(3)
will create an offence with the additional element that the sender intends that
the sexual activity take place with another person who is under 16 in the
presence of the sender, or another person who is at least 18.
2.62
A specific 'belief about age' defence is available to this offence.
2.63
The maximum penalty for the procurement offence will be 15 years
imprisonment. The maximum penalty for the grooming offence will be 12 years
imprisonment, or 15 years imprisonment for the offence created by
subsection 471.25(3).
Using a postal or similar service
to send indecent material to persons under 16 years of age
2.64
Section 471.26 will criminalise the use of a postal service to send
indecent material to a person under 16 years of age. The EM states that the
purpose of this offence is to address situations where the offender sends
indecent material to a child with no further intent to groom or procure the
child for sexual activity. This offence will mirror the comparable
carriage-service offence to be introduced by section 474.27A to ensure
that child sex-related activity is criminalised consistently, regardless of the
means through which it is committed (for example, through the Internet or the
post).
2.65
The maximum penalty for an offence under this section will be seven
years imprisonment.
Defences to offences against
Subdivision C (offences relating to use of a postal or similar service
involving sexual activity with a person under 16)
2.66
Section 471.29 will provide a defence based on a belief about age where,
at the time the defendant caused the article to be carried, the defendant believed
that the person was, for example, 16 or over.[21]
Offences relating to the use of a
carriage service for child pornography material or child abuse material
2.67
Item 19 of the Bill will insert a new subdivision and heading into
existing Division 474 of the Criminal Code: 'Subdivision D—Offences relating to
the use of a carriage service for child pornography material or child abuse
material'. Existing offences in sections 474.19 – 474.24 will be included
in new Subdivision D and have their penalties increased, and a new aggravated
offence will be created.
Increasing penalties
2.68
Item 21, 23, 25 and 27 of the Bill will increase the penalty for the
existing offences to be moved into new Subdivision D of Division 274, which
relate to controlling, producing, supplying or obtaining child pornography or
child abuse material for use through a carriage service. The maximum penalty for
these offences will be increased from 10 to 15 years imprisonment. The EM
states that this is appropriate in light of the scale of contemporary offending
and will ensure that the maximum penalty reflects the 'worst case scenario'.[22]
New aggravated offence for conduct involving
three or more occasions and two or more people
2.69
Subsection 474.24A(1) will insert an aggravated offence that will apply if
a person commits an offence against sections 474.19, 474.20, 474.22 or
474.23 (the underlying offences) in circumstances where the defendant has
committed an underlying offence on three or more separate occasions and the
commission of these offences involved two or more persons.
2.70
This offence will contain the same arrangements for double jeopardy as
are proposed for the aggravated offence involving conduct on three or more
occasions and two or more people in relation to child pornography and child
abuse material (see above).
2.71
The maximum penalty for an offence under this section will be 25 years
imprisonment.
Offences relating to the use of a carriage
service involving sexual activity with a person under 16
2.72
Item 29 of the Bill will insert a new subdivision and heading into
existing Division 474 of the Criminal Code: 'Subdivision F—Offences relating to
the use of carriage service involving sexual activity with person under 16'.
Existing offences in sections 474.26 – 474.29 will be included in new
Subdivision F, along with two new offences.
New offence for using a carriage
service for sexual activity with person under 16 years of age
2.73
Under subsection 474.25A(1), it will be an offence to use a carriage
service for sexual activity with a child under the age of 16 years, or to cause
a child to engage in sexual activity with another person of at least 18 years
of age (subsection 474.25A(2)). The EM states that the purpose of this
offence is to ensure that engaging in sexual activity with a child online is criminalised
in a comparable way to equivalent 'real life' activity.
2.74
A number of defences will be available to a defendant accused of an
offence under this section. The amendments include a specific defence of belief
of age (subsection 474.29(1)) as well as a specific defence of not intending to
derive gratification (subsection 425.25A(4)). The general defences under Part
2.3 of the Criminal Code will also be available.
2.75
The maximum penalty for an offence under this section will be 15 years
imprisonment.
New aggravated offence—child with
mental impairment or under care, supervision or authority of defendant
2.76
Section 474.25B will introduce a new aggravated offence that will apply
if a person commits an offence against subsections 474.25A(1) or 474.25A(2), in
circumstances where the child has a mental impairment and/or is under the care,
supervision or authority of the person. The new offence will rely on the
definition of position of trust or authority to be inserted into the
Criminal Code by Item 4, which will prescribe the categories of relationships
that would constitute a position of trust or authority, such as a parent,
guardian or carer, or the teacher or employer of a person. However, this
aggravating factor is intended to apply more broadly than just those specific
relationships that will be prescribed, and it will be for the court to
determine whether the child was otherwise under the care, supervision or
authority of the person.
2.77
A defence to this offence will be available where a defendant can show
that he or she believed that the child did not have a mental impairment
(subsection 474.29(3)). The general defences under Part 2.3 of the
Criminal Code, and the defence of 'mistake of fact' under existing section 9.2 will
also be available to a defendant charged with this offence.
2.78
The maximum penalty for an offence under this section will be 25 years
imprisonment.[23]
Using a carriage service to
transmit indecent communication to person under 16 years of age
2.79
Under subsection 474.27A(1), it will be an offence for a person 18 years
or over to use a carriage service to transmit an indecent communication to a
person who is, or who the sender believes to be, under 16 years of age.
2.80
A specific 'belief about age' defence is available to this offence (subsection 474.29(5)).
The general defences under Part 2.3 of the Criminal Code will also be available
to a person accused of an offence under this section.
2.81
The maximum penalty for an offence under this section will be seven
years imprisonment.
Offences relating to the use of a
carriage service for suicide related material
2.82
Subdivision C of Division 474 currently includes a range of offences
related to the use of telecommunications. Item 57 of the Bill will
divide Subdivision C into several separate subdivisions to better reflect the
conduct involved in those offences. This item will insert a new heading to
provide that existing sections 474.29A (relating to use of a carriage service
for suicide related material) and 474.29B (relating to possessing, controlling,
producing, supplying or obtaining suicide-related material for use through a
carriage service) will now be contained in Subdivision General—'Offences relating
to use of a carriage service for suicide related material'.[24]
Part 3—Consequential amendments
2.83
Existing child sex offences are referred to in a number of Acts in order
to allow the exercise of certain law enforcement powers for the investigation
of such offences. Minor technical amendments are required to include updated
references to existing and new child sex tourism and other child sex offence
provisions to reflect the changes made by the Bill.
2.84
Part 3 of Schedule 1 of the Bill will make consequential amendments to
the Australian Crime Commission Act 2002, the Crimes Act 1914,
the Surveillance Devices Act 2004 and the Telecommunications
(Interception and Access) Act 1979.[25]
SCHEDULE 2—FORFEITURE OF CHILD SEX MATERIAL
2.85
Schedule 2 provides for a specific scheme in the Crimes Act 1914
for the forfeiture of child pornography and child abuse material that is
related to a Commonwealth child sex offence. Once forfeited, such items will
become the property of the Commonwealth.
2.86
The EM notes that there is currently no specific Commonwealth scheme for
dealing with material or equipment that is seized by law enforcement agencies in
the course of investigations, such as child pornography and child abuse
material contained in photos, DVDs, computers or other electronic equipment.
This means that in cases where no person is convicted of an offence, either
because no prosecution is commenced or a defendant is acquitted, the seized
items must be returned. In cases where a defendant is convicted, an application
must be made for the forfeiture of the material under the Proceeds of Crime
Act 2002, which 'is a lengthy process and one ill-suited for dealing with
child pornography and child abuse material'.[26]
2.87
Accordingly, the proposed scheme is intended to allow law enforcement
agencies to be able to deal appropriately with such material or equipment,
regardless of whether criminal proceedings subsequently occur.
2.88
The proposed Commonwealth forfeiture scheme for child sex material will
comprise two approaches: administrative forfeiture and court-ordered
forfeiture.[27]
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