(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
272.15 “Grooming” child to engage in sexual activity outside Australia
(1) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) the person does so with the intention of making it easier to procure the child to engage in sexual activity (whether or not with the person) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the person believes to be under 16; and
(d) one or more of the following apply:
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the child is a fictitious person represented to the person as a real person.
272.15A “Grooming” person to make it easier to engage in sexual activity with a child outside Australia
(1) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the third party); and
(b) the defendant does so with the intention of making it easier to procure a person (the child) to engage in sexual activity (whether or not with the defendant) outside Australia; and
(c) the child is someone:
(i) who is under 16; or
(ii) who the defendant believes to be under 16; and
(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;
(ii) the third party or the child (or both) is outside Australia when the conduct referred to in paragraph (a) occurs;
(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and both the third party and the child are in Australia when that conduct occurs.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to subparagraph (1)(c)(i) and paragraph (1)(d).
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 272.16.
(3) A person may be found guilty of an offence against subsection (1) even if it is impossible for the sexual activity referred to in that subsection to take place.
(4) For the purposes of subsection (1), it does not matter that the third party or the child is a fictitious person represented to the person as a real person.
272.16 Defence based on belief about age
Offences involving sexual intercourse or other sexual activity with a child—belief that child at least 16
(1) It is a defence to a prosecution for an offence against section 272.8 or 272.9 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the child was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving sexual intercourse or other sexual activity with young person—belief that young person at least 18
(2) It is a defence to a prosecution for an offence against section 272.12 or 272.13 if the defendant proves that, at the time of the sexual intercourse or sexual activity, he or she believed that the young person was at least 18.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Procuring and “grooming” offences—belief that child at least 16
(3) It is a defence to a prosecution for an offence against section 272.14, 272.15 or 272.15A if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the child was at least 16.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Trier of fact may take into account whether belief reasonable
(4) In determining whether the defendant had the belief mentioned in subsection (1), (2) or (3), the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
272.17 Defence based on valid and genuine marriage
It is a defence to a prosecution for an offence against subsection 272.12(1) or 272.13(1) if the defendant proves that:
(a) at the time of the sexual intercourse or sexual activity, there existed between the defendant and the young person a marriage that was valid, or recognised as valid, under the law of:
(i) the place where the marriage was solemnised; or
(ii) the place where the sexual intercourse or sexual activity is alleged to have taken place; or
(iii) the place of the defendant’s residence or domicile; and
(b) when the marriage was solemnised:
(i) the marriage was genuine; and
(ii) the young person had attained the age of 16 years.
Note 1: A defendant bears a legal burden in relation to the matter in this section: see section 13.4.
Note 2: Subsection 272.12(1) deals with engaging in sexual intercourse with a young person outside Australia. Subsection 272.13(1) deals with engaging in sexual activity (other than sexual intercourse) with a young person outside Australia. Both offences apply to defendants in a position of trust or authority in relation to the young person concerned.
Subdivision C—Offences of benefiting from, encouraging or preparing for sexual offences against children outside Australia
272.18 Benefiting from offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of benefiting from an offence against this Division; and
(c) the conduct is reasonably capable of resulting in the person benefiting from such an offence.
Penalty: Imprisonment for 25 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not the person intends to benefit financially from an offence against this Division; and
(c) whether or not an offence against this Division is in fact committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
272.19 Encouraging offence against this Division
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the person does so with the intention of encouraging an offence against this Division (other than this section or section 272.20); and
(c) the conduct is reasonably capable of encouraging such an offence.
Penalty: Imprisonment for 25 years.
(2) Subsection (1) applies:
(a) whether the conduct is engaged in within or outside Australia; and
(b) whether or not an offence against this Division is in fact committed.
(3) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(4) In this section, encourage means:
(a) encourage, incite to, or urge, by any means whatever, (including by a written, electronic or other form of communication); or
(b) aid, facilitate, or contribute to, in any way whatever.
272.20 Preparing for or planning offence against this Division
Offences involving sexual intercourse or other sexual activity with child, and benefiting offence
(1) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.8, 272.9, 272.10, 272.11 or 272.18.
Penalty: Imprisonment for 10 years.
Offences involving sexual intercourse or other sexual activity with young person
(2) A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of preparing for, or planning, an offence against section 272.12 or 272.13.
Penalty: Imprisonment for 5 years.
(3) Subsections (1) and (2) apply:
(a) whether the act is done within or outside Australia; and
(b) whether or not an offence against a provision referred to in paragraph (1)(b) or (2)(b) is in fact committed; and
(c) whether or not the act is done in preparation for, or planning, a specific offence against a provision referred to in paragraph (1)(b) or (2)(b); and
(d) whether or not the act is done in preparation for, or planning, more than one offence against a provision referred to in paragraph (1)(b) or (2)(b).
Subdivision E—Other rules about conduct of trials
272.27 Evidence relating to a person’s age
(1) For the purposes of this Division, evidence that a person was represented to the defendant as being under or of a particular age is, in the absence of evidence to the contrary, proof that the defendant believed that person to be under or of that age.
(2) In determining for the purposes of this Division how old a person is or was at a particular time, a jury or court may treat any of the following as admissible evidence:
(a) the person’s appearance;
(b) medical or other scientific opinion;
(c) a document that is or appears to be an official or medical record from a country outside Australia;
(d) a document that is or appears to be a copy of such a record.
(3) Subsection (2) does not make any other kind of evidence inadmissible, and does not affect a prosecutor’s duty to do all he or she can to adduce the best possible evidence for determining the question.
(4) If, on a trial for an offence against this Division, evidence may be treated as admissible because of subsection (2), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
272.28 Alternative verdicts
If, on a trial for an offence (the column 1 offence) against a provision referred to in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of the column 1 offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the column 2 offence) against a provision referred to in column 2 of that item;
it may find the defendant not guilty of the column 1 offence but guilty of the column 2 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Alternative verdicts
Item Column 1 Column 2
1 subsection 272.8(1) subsection 272.9(1)
2 subsection 272.8(2) subsection 272.9(2)
3 subsection 272.9(1) subsection 272.8(1)
4 subsection 272.9(2) subsection 272.8(2)
5 subsection 272.10(1) subsection 272.8(1), 272.8(2), 272.9(1) or 272.9(2)
6 subsection 272.11(1) subsection 272.8(1), 272.8(2), 272.9(1), 272.9(2) or 272.10(1)
7 subsection 272.12(1) subsection 272.13(1)
8 subsection 272.12(2) subsection 272.13(2)
9 subsection 272.13(1) subsection 272.12(1)
10 subsection 272.13(2) subsection 272.12(2)
272.29 Double jeopardy
If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.
272.30 Sentencing
(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against Subdivision B of this Division, the court must take into account the following matters:
(a) the age and maturity of the person in relation to whom the offence was committed;
(b) if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(c) the number of people involved in the commission of the offence.
(1A) However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.
(2) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).
272.31 Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Division 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) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
Division 273—Offences involving child abuse material outside Australia
Subdivision A—Preliminary
273.1 Definitions
(1) Subject to subsections (2) and (3), an expression used in this Division that is defined in Part 10.6 has the same meaning in this Division as it has in that Part.
Note: One of those expressions is child abuse material.
(2) A reference in this Division to a person having possession or control of material includes a reference to the person:
(a) having possession of a computer or data storage device that holds or contains the material; or
(b) having possession of a document in which the material is recorded; or
(c) having control of material held in a computer that is in the possession of another person (whether inside or outside Australia).
(3) A reference in this Division to a person producing, distributing or obtaining material includes a reference to the person:
(a) producing, distributing or obtaining material held or contained in a computer or data storage device; or
(b) producing, distributing or obtaining a document in which the material is recorded.
(4) Section 473.4 applies in relation to this Division as if the reference in that section to Part 10.6 were a reference to this Division.
Note: Section 473.4 sets out matters that may be taken into account in deciding whether particular material is offensive.
273.2 Who can be prosecuted for an offence committed outside Australia
A person must not be charged with an offence against this Division that the person allegedly committed outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia; or
(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or
(d) any other body corporate that carries on its activities principally in Australia.
273.2A Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Division 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) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
273.3 Double jeopardy
If a person has been convicted or acquitted in a country outside Australia of an offence against the law of that country in respect of any conduct, the person cannot be convicted of an offence against this Division in respect of that conduct.
273.4 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Note: Division 279 (video link evidence) applies to a proceeding for an offence against this Division.
Subdivision B—Offences committed overseas involving child abuse material
273.6 Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, distributes or obtains material; or
(iii) facilitates the production or distribution of material; and
(b) the material is child abuse material; and
(c) the conduct referred to in paragraph (a) occurs outside Australia.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
273.7 Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people
(1) A person commits an offence against this section if:
(a) the person commits an offence against section 273.6 (possessing etc. child abuse material outside Australia) on 3 or more separate occasions; and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 273.6.
(3) To avoid doubt, a person does not commit an offence against section 273.6 for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.