(6) Subsection (5) 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.
(7) If, on a trial for an offence against a provision of this Subdivision, evidence may be treated as admissible because of subsection (5), the court must warn the jury that it must be satisfied beyond reasonable doubt in determining the question.
Issues relating to aggravated offence involving sexual activity
(7A) For the purposes of an offence against subsection 474.25B(1):
(a) there is no fault element for the physical element described in paragraph (a) of that subsection other than the fault elements (however described), if any, for the underlying offence; and
(b) absolute liability applies to the physical element of circumstance of the offence that the child has a mental impairment; and
(c) strict liability applies to the physical element of circumstance of the offence that 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.
Note 1: For absolute liability, see section 6.2.
Note 2: For strict liability, see section 6.1.
Note 3: For a defence based on belief that the child did not have a mental impairment, see section 474.29.
Impossibility of sexual activity taking place
(8) A person may be found guilty of an offence against section 474.26, 474.27 or 474.27AA even if it is impossible for the sexual activity referred to in that section to take place.
Fictitious persons
(9) For the purposes of sections 474.26, 474.27, 474.27AA and 474.27A, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.
(9A) For the purposes of an offence against section 474.27AA, it does not matter that the child is a fictitious person represented to the sender as a real person.
Attempt not offence
(10) It is not an offence to attempt to commit an offence against section 474.26, 474.27 or 474.27AA.
474.29 Defences to offences against this Subdivision
Offences involving sexual activity—belief that child at least 16 years of age
(1) It is a defence to a prosecution for an offence against section 474.25A if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the child was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving sexual activity with other participant—belief that participant under 18 years of age
(2) It is a defence to a prosecution for an offence against subsection 474.25A(2) if the defendant proves that, at the time the sexual activity was engaged in, he or she believed that the participant was under 18 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Aggravated offence involving sexual activity—belief that child did not have mental impairment
(3) It is a defence to a prosecution for an offence against subsection 474.25B(1) (as that subsection applies because of subparagraph 474.25B(1)(b)(i)) if the defendant proves that, at the time the defendant committed the offence, he or she believed that the child did not have a mental impairment.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Procuring and “grooming” offences involving child engaging in sexual activity with other participant—belief that participant under 18 years of age
(4) It is a defence to a prosecution for an offence against subsection 474.26(2) or (3), 474.27(2) or (3) or 474.27AA(2) or (3) if the defendant proves that, at the time the communication was transmitted, he or she believed that the participant was under 18 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Offences involving transmission of communication—belief that certain persons at least 16 years of age
(5) It is a defence to a prosecution for an offence against section 474.26, 474.27 or 474.27A if the defendant proves that, at the time the communication was transmitted, he or she believed that the recipient was at least 16 years of age.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
(5A) It is a defence to a prosecution for an offence against section 474.27AA if the defendant proves that, at the time the communication was transmitted, the defendant believed that the child was at least 16 years of age.
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
(6) In determining whether the defendant had the belief mentioned in one of the preceding subsections of this section, the trier of fact may take into account whether the alleged belief was reasonable in the circumstances.
474.29AA Sentencing
(1) In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, 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.
(2) 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.
(3) 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).
Subdivision G—Offences relating to use of carriage service for suicide related material
474.29A Using a carriage service for suicide related material
(1) A person commits an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material directly or indirectly counsels or incites committing or attempting to commit suicide; and
(c) the person:
(i) intends to use the material to counsel or incite committing or attempting to commit suicide; or
(ii) intends that the material be used by another person to counsel or incite committing or attempting to commit suicide.
Penalty: 1,000 penalty units.
(2) A person commits an offence if:
(a) the person:
(i) uses a carriage service to access material; or
(ii) uses a carriage service to cause material to be transmitted to the person; or
(iii) uses a carriage service to transmit material; or
(iv) uses a carriage service to make material available; or
(v) uses a carriage service to publish or otherwise distribute material; and
(b) the material directly or indirectly:
(i) promotes a particular method of committing suicide; or
(ii) provides instruction on a particular method of committing suicide; and
(c) the person:
(i) intends to use the material to promote that method of committing suicide or provide instruction on that method of committing suicide; or
(ii) intends that the material be used by another person to promote that method of committing suicide or provide instruction on that method of committing suicide; or
(iii) intends the material to be used by another person to commit suicide.
Penalty: 1,000 penalty units.
(3) To avoid doubt, a person does not commit an offence against subsection (1) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide; or
(b) advocate reform of the law relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material concerned to counsel or incite committing or attempting to commit suicide; or
(d) intend that the material concerned be used by another person to counsel or incite committing or attempting to commit suicide.
(4) To avoid doubt, a person does not commit an offence against subsection (2) merely because the person uses a carriage service to:
(a) engage in public discussion or debate about euthanasia or suicide; or
(b) advocate reform of the law relating to euthanasia or suicide;
if the person does not:
(c) intend to use the material concerned to promote a method of committing suicide or provide instruction on a method of committing suicide; or
(d) intend that the material concerned be used by another person to promote a method of committing suicide or provide instruction on a method of committing suicide; or
(e) intend the material concerned to be used by another person to commit suicide.
474.29B Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material directly or indirectly:
(i) counsels or incites committing or attempting to commit suicide; or
(ii) promotes a particular method of committing suicide; or
(iii) provides instruction on a particular method of committing suicide; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.29A (using a carriage service for suicide related material).
Penalty: 1,000 penalty units.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.29A (using a carriage service for suicide related material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
Subdivision H—Offences relating to use of carriage service for sharing of abhorrent violent material
474.30 Definitions
In this Subdivision:
abhorrent violent conduct has the meaning given by section 474.32.
abhorrent violent material has the meaning given by section 474.31.
consent means free and voluntary agreement.
content service means:
(a) a social media service (within the meaning of the Online Safety Act 2021); or
(b) a designated internet service (within the meaning of the Online Safety Act 2021).
hosting service has the same meaning as in the Online Safety Act 2021. For this purpose, disregard subparagraphs 17(a)(ii) and (b)(ii) of that Act.
474.31 Abhorrent violent material
(1) For the purposes of this Subdivision, abhorrent violent material means material that:
(a) is:
(i) audio material; or
(ii) visual material; or
(iii) audio‑visual material;
that records or streams abhorrent violent conduct engaged in by one or more persons; and
(b) is material that reasonable persons would regard as being, in all the circumstances, offensive; and
(c) is produced by a person who is, or by 2 or more persons each of whom is:
(i) a person who engaged in the abhorrent violent conduct; or
(ii) a person who conspired to engage in the abhorrent violent conduct; or
(iii) a person who aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct; or
(iv) a person who attempted to engage in the abhorrent violent conduct.
(2) For the purposes of this section, it is immaterial whether the material has been altered.
(3) For the purposes of this section, it is immaterial whether the abhorrent violent conduct was engaged in within or outside Australia.
474.32 Abhorrent violent conduct
(1) For the purposes of this Subdivision, a person engages in abhorrent violent conduct if the person:
(a) engages in a terrorist act; or
(b) murders another person; or
(c) attempts to murder another person; or
(d) tortures another person; or
(e) rapes another person; or
(f) kidnaps another person.
Murder
(2) For the purposes of this section, a person (the first person) murders another person if:
(a) the first person’s conduct causes the death of the other person; and
(b) the conduct constitutes an offence.
Torture
(3) For the purposes of this section, a person (the first person) tortures another person if:
(a) the first person inflicts severe physical or mental pain or suffering upon the other person; and
(b) the other person is in the custody, or under the control, of the first person; and
(c) the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986).
Rape
(4) For the purposes of this section, a person (the first person) rapes another person if:
(a) the first person sexually penetrates the other person without the consent of the other person; or
(b) the first person causes the other person to sexually penetrate the first person without the consent of the other person.
Kidnapping
(5) For the purposes of this section, a person (the first person) kidnaps another person if:
(a) the first person takes or detains the other person without the other person’s consent; and
(b) the first person takes or detains the other person in order to:
(i) hold the other person to ransom or as a hostage; or
(ii) murder, torture or rape the other person or a third person; or
(iii) cause serious harm to the other person or a third person; and
(c) the taking or detention of the other person involves violence or a threat of violence.
Interpretation
(6) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
terrorist act means:
(a) a terrorist act within the meaning of section 100.1 (disregarding paragraphs 100.1(2)(b), (d), (e) and (f)); or
(b) a terrorist act within the meaning of section 110.1 (disregarding paragraphs 110.1(2)(b), (d), (e) and (f)) that is a state terrorist act.
(7) For the purposes of this section, the genitalia or other parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
474.33 Notification obligations of internet service providers, content service providers and hosting service providers
(1) A person commits an offence if:
(a) the person:
(i) is an internet service provider; or
(ii) provides a content service; or
(iii) provides a hosting service; and
(b) the person 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 abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia; and
(c) the person 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.
(2) For the purposes of this section:
(a) it is immaterial whether the content service is provided within or outside Australia; and
(b) it is immaterial whether the hosting service is provided within or outside Australia.
(3) Subsection (1) does not apply if the person reasonably believes that details of the material are already known to the Australian Federal Police.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3).
474.34 Removing, or ceasing to host, abhorrent violent material
Content service
(1) A person commits an offence if:
(a) the person provides a content service; and
(b) the content service can be used to access material; and
(c) the material is abhorrent violent material; and
(d) the person does not ensure the expeditious removal of the material from the content service.
(2) For the purposes of subsection (1), it is immaterial whether the content service is provided within or outside Australia.
(3) Subsection (1) does not apply to material unless the material is reasonably capable of being accessed within Australia.
(4) The fault element for paragraphs (1)(b) and (c) is recklessness.
Hosting service
(5) A person commits an offence if:
(a) the person provides a hosting service; and
(b) material is hosted on the hosting service; and
(c) the material is abhorrent violent material; and
(d) the person does not expeditiously cease hosting the material.
(6) For the purposes of subsection (5), it is immaterial whether the hosting service is provided within or outside Australia.
(7) Subsection (5) does not apply to material unless the material is reasonably capable of being accessed within Australia.
(8) The fault element for paragraphs (5)(b) and (c) is recklessness.
Penalty for individual
(9) An offence against subsection (1) or (5) committed by an individual is punishable on conviction by imprisonment for a period of not more than 3 years or a fine of not more than 10,000 penalty units, or both.