(4) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021; or
(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.24A 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 one or more of the following provisions on 3 or more separate occasions:
(iii) section 474.22 (using a carriage service for child abuse material);
(iiia) section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service);
(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); 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 474.22, 474.22A or 474.23.
(3) To avoid doubt, a person does not commit an offence against section 474.22, 474.22A or 474.23 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.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the aggravated offence) against this section may not be convicted of an offence against section 474.22, 474.22A or 474.23 in relation to the conduct that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.
(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 474.22, 474.22A or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
474.24B Alternative verdict if aggravated offence not proven
If, on a trial for an offence (the aggravated offence) against subsection 474.24A(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against section 474.22, 474.22A or 474.23;
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.24C Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Subdivision 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.
Subdivision E—Offence relating to obligations of internet service providers and internet content hosts
474.25 Obligations of internet service providers and internet content hosts
A person commits an offence if the person:
(a) is an internet service provider or an Australian hosting service provider; and
(b) is aware that the service provided by the person can be used to access particular material that the person has reasonable grounds to believe is child abuse material; and
(c) does not refer details of the material to the Australian Federal Police within a reasonable time after becoming aware of the existence of the material.
Penalty: 800 penalty units.
Subdivision F—Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16
474.25A Using a carriage service for sexual activity with person under 16 years of age
Engaging in sexual activity with child using a carriage service
(1) A person commits an offence if:
(a) the person engages in sexual activity with another person (the child) using a carriage service; and
(b) the child is under 16 years of age; and
(c) the person is at least 18 years of age.
Note: Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example):
(a) a person using a carriage service to see or hear, in real time, a person under 16 engage in sexual activity; and
(b) a person engaging in sexual activity that is seen or heard, in real time, by a person under 16 using a carriage service.
Penalty: Imprisonment for 20 years.
Causing child to engage in sexual activity with another person
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and
(c) the child is under 16 years of age when the sexual activity is engaged in; and
(d) the participant is at least 18 years of age when the sexual activity is engaged in.
Note: Because of the definition of engage in sexual activity in the Dictionary, this offence covers (for example) causing a person under 16:
(a) to engage in sexual activity that is seen or heard, in real time, by another person using a carriage service; or
(b) to use a carriage service to see or hear, in real time, another person engage in sexual activity.
Penalty: Imprisonment for 20 years.
(3) The fault element for paragraph (2)(b) is intention.
Defence—child present but defendant does not intend to derive gratification
(4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For other defences relating to this offence, see section 474.29.
474.25B Aggravated offence—using a carriage service for sexual activity with person under 16 years of age
(1) A person commits an offence against this section if:
(a) the person commits an offence (the underlying offence) against either of the following provisions in relation to another person (the child):
(i) subsection 474.25A(1) (engaging in sexual activity with child using a carriage service);
(ii) subsection 474.25A(2) (causing child to engage in sexual activity with another person); and
(b) one or more of the following apply:
(i) the child has a mental impairment at the time the person commits the underlying offence;
(ii) 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, at the time the person commits the underlying offence;
(iii) the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity referred to in subsection 474.25A(1) or (2);
(iv) the child dies as a result of physical harm suffered in connection with the sexual activity referred to in subsection 474.25A(1) or (2).
Penalty: Imprisonment for 30 years.
(2) To avoid doubt, a person does not commit the offence against subsection 474.25A(1) or (2) for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Alternative verdicts
(3) If, on a trial for an offence (the aggravated offence) against subsection (1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence) against subsection 474.25A(1) or (2);
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.25C Using a carriage service to prepare or plan to cause harm to, engage in sexual activity with, or procure for sexual activity, persons under 16
A person (the first person) commits an offence if:
(a) the first person does any act in preparation for doing, or planning to do, any of the following:
(i) causing harm to a person under 16 years of age;
(ii) engaging in sexual activity with a person under 16 years of age;
(iii) procuring a person under 16 years of age to engage in sexual activity; and
(b) the first person is at least 18 years of age; and
(c) the act is done using a carriage service.
Penalty: Imprisonment for 10 years.
Example: A person misrepresents their age online as part of a plan to cause harm to another person under 16 years of age.
474.26 Using a carriage service to procure persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person (the participant); and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with another person; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27 Using a carriage service to “groom” persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person (the participant); and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(c) the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with another person; and
(d) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e) the other person referred to in paragraph (c) is someone who is, or who the sender believes to be, under 18 years of age; and
(f) the sender intends that the sexual activity referred to in paragraph (c) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27AA Using a carriage service to “groom” another person to make it easier to procure persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with the sender; and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.
(2) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person (the participant); and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the participant is someone who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
(3) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the sender does this with the intention of making it easier to procure a person (the child) to engage in sexual activity with another person; and
(c) the child is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the other person referred to in paragraph (b) is someone who is, or who the sender believes to be, under 18 years of age; and
(e) the sender intends that the sexual activity referred to in paragraph (b) will take place in the presence of:
(i) the sender; or
(ii) another person (the participant) who is, or who the sender believes to be, at least 18 years of age.
Penalty: Imprisonment for 15 years.
474.27A Using a carriage service to transmit indecent communication to person under 16 years of age
(1) A person (the sender) commits an offence if:
(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b) the communication includes material that is indecent; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), whether material is indecent is a matter for the trier of fact.
(3) In this section:
indecent means indecent according to the standards of ordinary people.
474.28 Provisions relating to offences against this Subdivision
Age‑related issues—application of absolute liability
(1) For the purposes of an offence against this Subdivision, absolute liability applies to the physical element of circumstance of the offence that:
(a) in the case of an offence against section 474.25A or 474.27AA—the child is under 16 years of age; and
(b) in the case of an offence against section 474.26, 474.27 or 474.27A—the recipient is someone who is under 16 years of age.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.
(2) For the purposes of an offence against subsection 474.25A(2), 474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3), absolute liability applies to the physical elements of circumstance of the offence that the participant is at least 18 years of age.
Note 1: For absolute liability, see section 6.2.
Note 2: For a defence based on belief about age, see section 474.29.
Proof of belief about age—evidence of representation
(3) For the purposes of sections 474.26, 474.27, 474.27AA and 474.27A, 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 to the contrary, proof that the defendant believed the person to be under, of, at least or over that age (as the case requires).
Determining age—admissible evidence
(5) In determining for the purposes of this Subdivision 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.